The NLRB’s Deference and Abstention Policies: Accommodation or Abdication?

Article by Joel Wm. Friedman

For over sixty years, the National Labor Relations Board (NLRB or the Board), the federal agency created by Congress and delegated with the tasks of monitoring and enforcing federal labor policy codified in the National Labor Relations Act (NLRA or the Labor Act), has confronted and struggled with an existential question. Private sector workers who are represented by a union that has entered into a collective bargaining agreement with their employer are endowed with two sets of employment rights. One of these bundles flows from the terms of their collective agreement—the product of private negotiation and agreement between the union and the employer. The second source of employment-related rights is contained in the Labor Act. Equally importantly, each of these rights-creating instruments is subject to a vastly different enforcement mechanism. Collective agreements almost invariably provide a private method of resolving labor disputes—one that ultimately ends in arbitration as the final and binding form of resolution. Enforcing the rights provided by the NLRA, on the other hand, is, at least initially, the sole province of the NLRB. The existence of these two remedial routes has compelled the Board to examine the role it should play in a manner consistent with both its statutory obligation to enforce this statute and the strong federal policy promoting the use of arbitration as a method of resolving labor disputes. To that end, the Board has adopted a policy of withholding the exercise of its undisputed jurisdiction over statutory claims in favor of seeking resolution of the underlying dispute through arbitration. But the evolution of that policy has been tortured and tortuous. Over more than six decades, differing combinations of Board membership have led the Board to rethink, reformulate, and readjust the contours of this policy in a consistently inconsistent fashion. Moreover, the Board has delegated a pivotal role in implementing this policy to nonjudicial, unelected, politically unaccountable administrative officials in a manner that has shielded the implementation of the various versions of the policy from meaningful scrutiny. This Article will examine and analyze the development and implementation of the Board’s deferral policies and propose a revised methodology that bears greater fidelity to the undisputed federal labor policies than the extant approach.

About the Author

Jack M. Gordon Professor of Procedural Law and Jurisdiction, Tulane University Law School.


92 Tul. L. Rev. 883 (2018)