After 'Hiding the Ball' is Over: How the NLRB Must Change its Approach to Decision-Making

Abstract

Is the National Labor Relations Board (the NLRB or the Board), the agency that oversees federal labor law, still relevant? When this question is considered, as it frequently is by scholars, lawyers and officials of the NLRB itself, the focus typically is on whether changes in the workplace, the economy and society are diminishing the relevance of the Board. But there is a new and more immediate threat to the relevance of the Board that so far has been mostly ignored - that the Board is in danger of being rendered a superfluous legal institution in the scheme of American administrative law. In 1998, the U.S. Supreme Court's decision in Allentown Mack Sales and Service, Inc. v. NLRB created an opening for appellate courts to completely disregard the Board's rulings in labor law cases and decide these cases as they wish. And a number of appellate courts have already plunged through that opening to regularly decide labor law cases, and labor law issues, without any regard for the Board's views on them.The threat to the Board has come through courts' questioning of the Board's approach to fact-finding. In Allentown Mack, the Supreme Court declared that “(the Board) should not be able to impede judicial review, and indeed political oversight, by disguising its policymaking as fact-finding.” The Board technique of “disguising” policymaking as fact-finding had been identified by many scholars, most notably Professor Joan Flynn, who showed that the Board commonly engaged in the practice of making policy determinations in the guise of (ostensibly policy-neutral) fact-finding, a practice that Professor Flynn and others dubbed “hiding the ball.” These scholars argued that the Board hides the ball in order to make its policy determinations less visible and therefore less likely to be reversed by the federal courts of appeals or attacked by members of Congress.