Last month, the Supreme Court released two significant decisions that limit the powers of administrative agencies of the federal government.
The first ruling, Securities and Exchange Commission v. Jarkesy, also known as simply Jarkesy, was about an SEC enforcement action. The second, Loper Bright Enterprises v. Raimondo, also known as simply Loper Bright, dealt with maritime fishing regulation.
While both decisions may seem far removed from the National Labor Relations Board (NLRB), they modify rules that apply broadly to federal agencies, including potentially the NLRB. Labor organizers and activists, including those of us in EWOC, have been grappling with how these rulings might change our tactics and strategies for helping workers to organize and exert their power.
We can’t say for sure how these rulings will be interpreted, but we know that, under this Supreme Court, things are going to get worse before they get better. However, we’re hopeful that these particular rulings will have limited impact on labor law. More importantly, these rulings are a reminder that labor law is but one of the tools that workers have to help us organize. Ultimately, our power as workers does not come from the law — it comes from the fact that the bosses need our labor and from the solidarity and unity we build through organizing. That doesn’t change, even if the law does.
The Big Picture
The federal government rarely passes legislation that states in precise detail every aspect of how it applies. Instead, it delegates the detailed work to administrative agencies who create and oversee the rules that Congress has created over the years. Often, these agencies enforce their rules, what we call “administrative law,” through administrative hearing boards or administrative law judges rather than through civil actions in federal courts.
In administrative proceedings, specialized hearing officers and judges conduct hearings, issue rulings, and generally determine how the rules and regulations are applied. Those familiar with the NLRB will recognize this is how it works. The agency itself issues new interpretations of federal labor law depending on its composition (such as the recent Cemex decision, which has opened new pathways for unions to gain recognition), and further it holds hearings on unfair labor practices (ULPs) and the like before its own administrative law judges (ALJs) rather than in civil court.
Parties to administrative law procedures always have the option to appeal those decisions to civil courts, but those courts historically defer to the evidence gathered in administrative opinions and also rely upon the expert judgment of ALJs for their interpretation of the rules.
The two recent Supreme Court decisions limit which cases can be brought before administrative courts the ability of agencies to engage in interpretations of federal law. However, as we shall see, this may not have a significant direct impact on the NLRB.
Jarkesy
The Jarkesy decision is a very strong blow against administrative procedures’ ability to penalize those who break the rules, ruling that most cases that incur “legal remedies” like damages and civil penalties must be heard in civil court, rather than just being appealed there.
However, as a Bloomberg Law article explains, labor law has historically only allowed workers to seek “equitable remedies” like reinstatement and back pay. Those remedies are not the same thing as civil penalties or punitive damages.
Organizers have long warned that even when you win a ULP hearing, you don’t win much because the penalties that can be levied by the NLRB are so limited. But, ironically, that very fact means that ULP hearings may prove to be exempt from the scope of Jarkesy.
Loper Bright
The Loper Bright ruling overturns a major 1984 decision known as the Chevron doctrine, which gave broad “deference” to federal agencies to interpret federal law as they saw fit rather than having to defend their interpretations on a detailed basis in the courts. Again, while this may have drastic consequences to the overall shape of administrative law, it seems the NLRB may be relatively insulated. As another Bloomberg Law article notes, there are multiple Supreme Court rulings prior to Chevron that specifically granted the NLRB broad deference, so the overturn has less meaning than for other federal agencies.
What Next?
This analysis does not mean we should rest easy. With these two decisions in quick succession, the Supreme Court has sent a message that more attacks on administrative law are likely in the works. Further, administrative law is not always a good thing for workers. Whether the NLRB sides with workers or bosses is not a given — it depends on the composition of the agency and the amount of actual struggle by workers it is responding to. It will not always be the case that the NLRB is a preferable venue to a federal jury or that the NLRB’s interpretation of law will always be favorable to that from a federal court. It’s certainly likely that moving unfair labor practice cases to civil court would make things slower and more costly.
We don’t know how things will develop. But we do know workers are on the march, organizing and winning in a way that hasn’t been seen in a long time — and the bosses hate it. We know there are more legal cases in the works that specifically target labor law, but we also know that labor law is only one aspect of labor struggle.
Our Power Lies Within Us
Even if a world comes where all but the most egregious ULPs are unwinnable, this will hurt most centrally the legalistic strategies of the conservative wing of the labor movement. It will only make some of what has distinguished EWOC and other rank-and-file organizing approaches even more important.
What we can actually rely on is worker power, organization, and solidarity to act together. Of course, it’s not helpful that these legal remedies may be even harder, more remote, and useless than before, but it should inspire us to recommit to values of militant rank-and-file labor organizing that builds the independent strength of workers and our organizations.
