The National Labor Relations Act, the Major Questions Doctrine, and Labor Peace in the Modern Workplace

We are living in a time of labor unrest, and the National Labor Relations Board’s (“NLRB” or “the Board”) ability to address new sources of strife in the modern workplace is imperiled. The U.S. Supreme Court’s major questions doctrine has already struck down agency actions involving the environment and student loans—and labor could be next. As articulated in West Virginia v. EPA and Biden v. Nebraska, the Court’s robust version of the major questions doctrine jettisons Chevron deference. Instead, it requires clear congressional authorization before an agency addresses “extraordinary” economic or politically significant matters that the agency has not previously regulated under its statute. The malleable indicia on which the Court has relied to determine the existence of a major question—history, breadth, economic significance, and political controversy—often occur in NLRB policy making. Congress, however, granted the NLRB broad power to eliminate obstructions to economic productivity caused by strikes, violence, and other disruptive forms of worker protest, well-aware that the Board would confront sources of conflict that did not exist in 1935. If the new major questions doctrine prevents the NLRB from exercising the powers Congress conferred upon it to help quell the current spate of labor unrest, the Court will undermine legislative intent and economic stability in one fell swoop.
This Article proposes that courts should apply the major questions doctrine to federal agencies modestly and to the NLRB rarely, if at all. The NLRB and its sister agencies should incorporate major questions concerns into their processes to avoid triggering the doctrine unintentionally. And the courts should find major questions only when indicia exist conjunctively and are qualitatively major. Further, the NLRB’s distinct history, adjudicative structure, and statutory entitlement to judicial deference demand that the courts respect the Board’s policy making, even if it implicates so-called major questions. In this way, courts will honor Congress’s decision to empower an expert adjudicative agency, rather than the judiciary, to protect labor peace.