Adjudication versus Rulemaking: A Look at How NLRB Sets Labor Policy

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Welcome to fedsock Forums, a Federalist Society podcast. I'm Elizabeth Slattery,
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Vice president of Practice Groups. Be sure to subscribe wherever
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you get your podcasts so you won't miss an episode. Now,
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please enjoy today's conversation.
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Good afternoon, and welcome to this fedsock form webinar Adjudication
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versus rulemaking. Hey look at how MLRB sets labor policy.
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I'm Alexinos Practice Groups sellowout the Federal Society a couple
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of months before we begin. As always, the ferrociety does
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not take policy positions, and all of you is expressing.
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This session belong to our.
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Speakers, time permitting, will take questions from the audience, So
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if you have any questions throughout the webinar that pertains
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the topic a hand, please sumit them through Zoom's Q
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and a feature located at the bottom of your screen. Now,
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I'm pleased to introduce our moderator, Alex McDonald, shareholder and
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co chair of the Workplace Policy Institute of Lilar Mendelsohn.
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Alex advises employers on all aspects of the employment and
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er landscape, focusing on emerging legislation and regulation. He's extensive
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experience advising businesses on worker classification, arbitration, the administrative and
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regulatory process, and the future of work. He's a recognized
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expert in the field and frequently writes, publishes, and speaks
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on these subjects. His work has been cited by scholars
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and a poet courts alike. Alex, the floor is yours.
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Thank you, Alex. That's a very generous introduction. We have
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an all star panel today and I'm really excited to
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get over to them. We have Brian Hayes as a
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former member of the NLRB and now Ogletree, and we
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have Professor Sama Striker, who is at NYU has written
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extensively on the topic we're going to be discussing today. Later,
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we'll be joined by Marvin Kaplan, who is also a
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former member of the NLRB recently former member and has
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also written on these topics.
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But I'll just take a.
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Brief moment to set the stage and explain why we're
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talking about rule making at the NLRB, which historically is
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not exactly the legal equivalent of a unicorn, but it's
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about as close as you can get. So for most
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of its history, the board hasn't done much rulemaking, at
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least not on substantive rights support it to workers by
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federal law. Instead, it's developed labor policy, which is its
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statutory mission, mostly through case by case adjudication, but that
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may be changing, and it's why we're talking today. There
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are few reasons, and I'll just take off three that
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occurred me. One is that the Board has recently had
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trouble making policy and it's a custom way through adjudication
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for a few reasons. One is that it's for most
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of twenty twenty five it didn't have a quorum, so
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the board has a statutory requirement of three members to
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take any action. It's a five member agency, and they
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and half three members for most of twenty twenty five,
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so weren't really able to do much of anything. There
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was also a period where the Board had two members
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appointed by a Republican president and one member appointed by
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a Democratic president, and by tradition, the board adheres to
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a three vote requirement to overturn any of its own president.
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And if you have two members who viewed the Act
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one way and two or one member who views at
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the other, it's very hard to develop much policy through adjudication.
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You can't come to a consensus and overturn any prior president.
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Then there's the last problem that the Board has had
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developing policy through this are resistance in the courts. We've
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seen a lot of pushback to some recent presidents at
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the pellate level, so that may be pushing the Board
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toward more adjudication. Another reason is that the regulated community
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has started to call on the Board to engage in
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more rolemaking. There were a few petitions filed by some
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employer and industry organizations earlier this year, some organizations representing workers.
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And the causes are, you know, multiple, one of which
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could be a desire for more certainty and less gyration
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between administrations. There's some thought their rules might be more durable,
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and you know, there might be some frustration with the
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inability to change policy in the more traditional ways. And
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the third, which I'll do very quickly because I think
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the Panel is going to have a lot to say
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about this. This is a recent decision in the Sixth
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Circuit Bround Foreman, which involved the board's ability to make
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sort of these broad policy announcements and communication. We'll talk
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more about that decision later, but it could potentially rein
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in a little bit of the Board's ability to develop
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labor policies sort of divorce from any particular issue in
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a case. So all of that could be pushing us
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toward a a world where we're doing more rulemaking. But
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I I think that's enough for me. What I would
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like to do is turn to the panel and let's
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start from the premise that I started with, which is
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that the Board historically is been hesitant to engage in rulemaking. Brian,
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let me start with you. Where does that come from?
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Why has the Board historically been more interested in developing
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policy through rejudication than rulemaking.
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I kind of think there's two basic sources for that reluctance.
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I think the first is just the architecture of the
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statute itself, which is, you know, essentially creates its own
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internal court system with a trial court and an appellate court.
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And secondly, it's there's kind of a history that it's
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an agency that's been told repeatedly that it has some
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special expertise with respect to labor relations, and it up
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until fairly recently anyway, has had a pretty good track
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record of deference by reviewing courts, where you know, by
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virtue of it's by virtue of its expertise, right, So
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I think that the combination of those two factors, it's
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almost gotten into the bloodstream of the agency, this notion
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of almost unassailable independence in this particular area, almost to
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the point sometimes you get the sense of an institutional
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entitlement to make the final determination on many of these issues.
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So I think that, you know, it.
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Sometimes grates the board enough that they have to submit
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to a pellet review under the statute. I think when
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they engage in rulemaking, there's added layers to that. You know,
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now they have to take into account the views of
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the public. Uh, they're subject to the Congressional Review Acts,
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or think I'm going to have to take in to
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account how Congress may view whatever.
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Their rule making is.
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And uh, you know it's not only the public in
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the Congress, but also the courts are going a weigh
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in on the rule making too. So they're looking at
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three areas of review when when the statute only has one.
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And I think for for for an agency that has this,
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you know that has been inculcated with the notion of independence,
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that that that's been a tough pill to swallow. That's
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I think one of the fundamental reasons.
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Why No, that's that's that's a really great response, Professor Striker.
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I mean, does that does that resonate with you? Do
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you think this is an issue of the Board's you know,
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desire for independence and developing policy. And I know you've
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written a great deal about on the board and rule making,
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and you know, I won't characterize your position, but I
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think you've at least in the past, said that the
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Board should be doing more rulemaking, and I'm curious to
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see whether you still think that's the case.
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I'm the qualified advocate of rulemaking for the MLRV. You know,
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the fundamental problem with the use of adjudication is that
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there's no predictability. The administration changes and with one hundred
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and eighty degrees. You know, I do a labor law casebook,
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and it's a real burden on me. I've got to
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change this book every four years. And that's just joke,
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by the way, but it's really it breeds a kind
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of lack of respect for the board.
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In my view, client goes to.
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You, well, that's what the Board said four years ago,
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but let's fight it now. And it's hard to say, well, okay,
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let's fight it now. Because the Board may change its mind.
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So I think this breeds a form of disrespect for
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what the Board does, and I think it filters into
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the courts. You know, during a period of Chevron deference,
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the Board had problems in many of these cases with
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the circuit courts, and I think now in the era
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of Loper Bride, which over turns Chevron, the Board better
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have good reasons for what it's doing besides its reading
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of the statute. Because it's reading of the statute, the
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Court has said in lower Bright that's for the courts
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to ultimately decide, they need to have good policy reasons
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for what they're doing. So I think rulemaking provides a
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vehicle for that. Now, let me make two cautionary notes.
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With the decline of the judicial filibuster, we now have
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the ability to, essentially, I've written about this, pick your
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own district judge. So that makes it easier to seek
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to invalidate a rule, and.
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That's a problem.
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You can also try to pick your court of appeals
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a little harder, so that's a problem for me. The
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ease with which you can challenge rulemaking that we should
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discs us and I think that comes from the fact
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that We.
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Now have district judges all over the country.
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Many of them are partisans, and you can essentially, if
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you pick the right region, you can get an outcome.
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You go to Massachusetts, for example, you can be certain
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that they're all Democrats and they're all anti the current
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administration virtual certainty, and that's true of a number of places.
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And I think the Republicans have similar favored venues.
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So that's a problem.
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The second problem is I don't think the Board has
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used rule making in a way that helps them helps
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it improve its decision making. So if we're going to
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have a rule, let's say a rule dealing with access
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to email in the factories, I'd like to know what
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the actual impact that's going to be across a range.
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Of industrial establishments.
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And I think the Board's rule should be asking for
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that kind of information that will help it, by the way,
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in judicial review, because and the basis for the Board's
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rule will not be we feel this is the right
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reading of the statute. But we've we've been we've actually
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canvassed the regulated industry, and we think this is what's
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going to make sense.
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So I would like to see a change, and I think.
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Low pro ride ironically, UH makes that possible if in
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fact the board wants to be affirmed. Uh, they will
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need to have the basis of their decisions going beyond
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their feeling that this is the best reading of the statute.
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Now that that's uh, that's enlightening. I think sort of
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spells out to regal and practical implications. To Brian, I'm
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curious about your experience on the board itself, aside from
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you know, the relative weights of you know, you know,
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policy standpoint, how you develop new rules? Uh, are there
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practical barriers to rulemaking? We've heard sometimes freements like the
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board doesn't have the institutional experience. It's a resources question.
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What's your view on that? Is just practically something that
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the board could do if it wanted to.
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Well, you know, I think that there definitely are resource issues.
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I mean, the.
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Process is labor intensive to.
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Comply with the requirements of the APA because it requires,
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among other things, you know, a response to any substant
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of comments. So it does take an awful lot of
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staff time, that's for sure. And I think it takes
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takes more because there really isn't a lot of experience
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with it amongst any of the staff. I mean, the
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Board's only engaged in rulemaking a handful of times, so
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there really isn't any institutional knowledge about how to do
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it efficiently and do it the right way. And you know,
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the track record has with what the little that they've
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done has not been outstanding either. I mean, you know,
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the eighty seven healthcare unit determination rule making has kind
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of stood the test of time somewhat, but you know,
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you look at there, there have been some realm you know,
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missteps in you think back in twenty eleven when I
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was on the board and the majority then promulgated the
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notice posting rule. I mean that that was struck down.
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You also, I think the other practical consideration is not
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only is it is it time intensive, but it's also
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an elongated process as compared to.
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The case adjudication. If you look, I mean, the.
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Impetus to finally get a rule regarding the board's representation
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case procedures, probably from inception to it finally being in
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place for the first time was you know, it was
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close to five years, and it went from twenty ten
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to twenty fifteen. And I think that that is a
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consideration that from a practical perspective, is that makes the
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Board somewhat hesitant both the time and the lack of
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manpower or expertise or familiarity with the statute.
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I mean, you know, one of them just.
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As an aside, I mean, one of the requirements usually
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in rulemaking, not so much with the board, but I
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can see how in certain instances it applies, as you know,
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as an economic analysis, and yet by statute, the board
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can't employee an economists. So I mean that's just a
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kind of an indicator of the lack of bench strength
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really in terms.
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Of doing rulemaking.
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I mean, the staffs for most board members are very
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bright people, but they their training is more uh in
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the area of acting like a like acting like a
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walk clerk to an appellate judge, not to not to
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doing drafting rules under the A p A.
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That makes a whole lot of sense. I'm going to
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introduce our other panelists and through him, I thank you, Morvin,
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You're on now key here, I'm here.
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I apologize. I'm up in Montana and I did not
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know that we were going to be stuck in the no.
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Signal zone.
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So I apologize profusely, but I'm very excited to be
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part of this conversation. And and uh, I would just say, Brian,
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who's a very good friend, I guess I would disagree
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a little.
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With with what you're saying.
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I mean, we issued an unprecedented number of rules during
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the previous during the previous Trump administration, and I would
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say we as part of that, we made a large
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effort to train staff and make it more of a
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more of a streamline process at the Board. And it
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was interesting Phil Niskamer, who is not a fan.
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Of rulemaking at the board.
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One of the points that one of the things that
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he said when we were at the conference this weekend
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was he had done a study I guess when he
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was there that the time spent on rule making is
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no greater than the time spent on significant decisions coming out.
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Of the board.
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And I think that in some ways it's a perception
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that rule making is so much more time consuming than
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a rule because I think you and.
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I would talk about, you know, the hours deliberating on
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significant decisions, and I would just say one of the
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other things.
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That was commented at the at the meeting this week was, well,
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but employees are waiting for those decisions. And I think
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it's an interesting point only in that the board could
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issue decisions applying existing precedent and work on rule makings
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on the state at the same time so that justice
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is not delayed. So rule making, I think it could
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be done in conjunction with the adjudicatory function and not
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hold the cases unnecessarily so the parties get the finality
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while the rule making is in the process of changing
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the law and then allowing those individuals to participate.
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And Professor A.
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Striker, I think you raised an interesting point with regards
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to you know, participation in the rule.
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I mean, the board can ask for whatever participation.
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It wants, but it's limited by how much the parties
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choose to participate, right, I mean we can't. They can't
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force the community to, you know, provide information regarding you know,
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how it's going to effect manufacturing.
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And it's why often I.
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Have gone before people said, look, the rule is only
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as good as the participation from the community.
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So if you participate, you're going to be.
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Far better off with your final rule, which is I
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think what the APA contemplates. So you know, when you
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have robust comments covering a large number of issues from
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a diverse group, that's where you end up with the
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best rules.
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So I'm looking forward to this discussion.
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I'm sorry for starting jumping in there, and Alex, I
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shure you were like Marvi's just chopping at the beds.
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Marvin, I agree with you, but we can solicit information.
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Other agencies do this in which we solicit the information
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that we need now, then I require it.
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To provide it.
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But they do want the position to be sustained, so
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I think we could be a little more directed. It
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makes no sense to ask comments on the legal viability
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of the rule. The board members can do that on
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their own with their staff. They should be focusing on
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the practice consequences of the various approaches in my dew.
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Well, and let me just say the board has done such.
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I mean we issued or when we were on the board,
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we asked the community charter schools to start providing information.
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How does the law affect you? What is the effect
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on unionization? Asked broad questions. The problem was no one
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submitted comments or submitted briefs in response to the invitation
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of file briefs. So my only point is is that
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you can ask, but there's never assurances that you're going
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to get.
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It, which is why the rules are only as good
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as the parties that participate.
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And I will just and I only make one other
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comment because it kept being thrown at me at the
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conference this week, which I do think is a valid one,
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which is the time spent on the rule and all
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the work that goes into it. The fact they can
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be overturned by one court is all is I think.
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Actually one of the bigger deterrens to rulemaking from the
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Board's perspective is that non acquiescence. If one court strikes
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it down, the Board continues to apply their precedent regardless.
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That same ability does not exist with regards to rulemaking
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when a rule is vacated.
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It's a very good point, the point I made earlier.
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We have a different caliber of district court judges out there.
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Yeah, this is a great discussion. I do want to
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give Brian a chance to respond to the question about
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resources and time investment. Do you do you have a
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different view?
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I kind of, you know, I think that we're all
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either the victims or beneficiaries of our own experience, and
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Marvin's experience I think on the.
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Board is distinctly different from mine.
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I mean, the I know that the board in the
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twenty eleven our case making was consumed for it took
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enormous amounts of.
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Staff time.
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And I think in part, you know, it kind of
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depends upon the breadth of the rule. I mean, that
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was an all encompassing rule about which we received tons
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and tons of comment, you know, to the extent that
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there wasn't comment on some of the stuff during Marvin's term,
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maybe a function of the fact that the rules in
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those instances were somewhat narrower. I don't know the reason
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for that, but I think that our experiences are simply different.
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And I agree completely with that, Brian, and.
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I think that it's a and I think, particularly in
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your time, rulemaking was not used ever. Really at the
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Board had been decades since rule making had been used
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at all, which is why eleven.
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Was the first time since since.
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But the healthcare its in eighty seven.
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And that's exactly right, and that and it's the product
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of the circumstances where it's you know, it's so hard
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to get people to shift positions when it's never been used.
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And I will tell you whole candidly, there was tons
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of resistance to rule making at the Board even when
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we were there, and it was the decision of John
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and I to really make them flex that muscle. You know,
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it was the first opportunity to get us in the
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gym working on rule making, and it was not an
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easy thing to push.
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And I think it's it's it's.
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Reflected in you know, Jim Murphy, who's the new chairman
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as and I think Proudy and others have said openly
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they hate rulemaking. And I think Brian, to your point,
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that's exactly right because that's not what they did when
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they were there, and that's not what they see the
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boards Board's job as is you know, where did you
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to goador agency?
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So this is a great exchange. And we've been talking
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naturally a lot about process. That's mainly what the discussion
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is about. But I do want to maybe a little
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more concrete and talk a little bit about substance. Assuming
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the board were to do more rulemaking, are there areas
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that would be particularly fruitful for rulemaking, that would be
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particularly suited to it? And Marvin, I'm sorry to go
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back to you, but I'm going to start with you
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because I know you've written some on this. Uh, what
395
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what are areas the board could focus on if it
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did move in this direction for rulemaking.
397
00:23:42.200 --> 00:23:43.759
Well, I think one of the ones that Brian pointed
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out is right on, right on the.
399
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Is you bring that all makes sense?
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I'm sorry.
401
00:23:56.440 --> 00:24:02.359
King up again now, Okay, So I think one of
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the things that Brian mentioned was the rulemaking on election procedures.
403
00:24:06.599 --> 00:24:10.319
I think a universal approach to the election procedures at
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00:24:10.359 --> 00:24:14.559
the NLRA is essential, and I do think rulemaking there
405
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is particularly well suited right because it's an opportunity to
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00:24:18.920 --> 00:24:22.960
use one document to lay out the procedures uniformally, rather
407
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than looking through a judication and setting up procedures piecemeal.
408
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So I think that that is the one that makes sense.
409
00:24:31.920 --> 00:24:34.359
I think it makes sense to most people talking and
410
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thinking about the NLRA. I think blocking.
411
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Charges though, is that it should be used.
412
00:24:39.359 --> 00:24:43.279
Broadly in considering the entirety of the process, not merely
413
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the sections you want to deal with. Blocking charges is
414
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one of those things that I think has you know,
415
00:24:48.640 --> 00:24:53.920
the board has done quite badly in myself included in trying.
416
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To deal with those issues.
417
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I think the other areas that the board should consider,
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and you know, and again this is me advocating for
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rule making more than anything else.
420
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Is cases of new law I think.
421
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Sex was a great example of it. I think the
422
00:25:11.799 --> 00:25:15.400
Sixth Circuit rightly jumped upon it as a this is
423
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a huge change without at that actually has nothing to
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do with the facts of the case, which is why
425
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I argued quite extensively that it was dicta And if
426
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you're going to make that big change, there's value in
427
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getting the parties and the community involved in determining what
428
00:25:30.160 --> 00:25:31.240
the best way to do it is.
429
00:25:31.839 --> 00:25:34.680
And you know, I think in the end of the.
430
00:25:34.680 --> 00:25:38.839
Day, those broad renouncements by the board benefit from role
431
00:25:38.920 --> 00:25:42.960
making in that instead of ten years trying to interpret
432
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a single case in which exceptions are in which subsequent
433
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cases are filed with the same or similar fact patterns,
434
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rulemaking provides that opportunity to you obviously can't guess every
435
00:25:56.240 --> 00:25:59.480
fact pattern, but it offers an opportunity to address multiple
436
00:25:59.480 --> 00:26:04.160
fact battery and build a robust area of the law
437
00:26:04.400 --> 00:26:07.559
in one document, rather than just applying it to the
438
00:26:07.640 --> 00:26:10.599
existing question or the existing facts of that single case,
439
00:26:11.039 --> 00:26:14.240
which I think is helpful and is important to providing
440
00:26:14.279 --> 00:26:18.039
that kind of guidance to the entire community. So I
441
00:26:18.079 --> 00:26:22.599
think any big changes in law benefit from rule making.
442
00:26:25.039 --> 00:26:28.720
Let me put that same question the Professor Striker. Professor Striker,
443
00:26:28.839 --> 00:26:31.119
do you agree with that or the other areas if
444
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you would want to see the board focus on substittiically
445
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for rulemaking, I.
446
00:26:37.200 --> 00:26:40.240
Agree with what Morbon said. I mean, when you're applying
447
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the Act to a group of employees like university employees,
448
00:26:45.200 --> 00:26:48.400
I think that'd be another area for rule making. It
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00:26:48.599 --> 00:26:51.559
can again if we make it all turn on a
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statutory definition. The courts have gotten the message from Lowberbrid
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that that's their call. More our policy is based on
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facts that we are elucidating.
453
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From the rule making process. The more sustainable will be
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00:27:08.759 --> 00:27:09.720
the board's position.
455
00:27:10.359 --> 00:27:14.839
And so you know, universities are structured in different ways.
456
00:27:15.240 --> 00:27:19.160
I was involved as an expert witness in Yale having
457
00:27:19.240 --> 00:27:23.440
a unit of the union was proposing a unit of
458
00:27:24.160 --> 00:27:28.880
the sociology department, the literature department. I mean, you know,
459
00:27:29.880 --> 00:27:32.640
it didn't make any sense given the structure of Yale.
460
00:27:33.200 --> 00:27:35.000
And I think that's an area too.
461
00:27:36.240 --> 00:27:39.079
Not so much on whether their employees or not, but
462
00:27:39.160 --> 00:27:44.599
how does the structure of the university change what.
463
00:27:44.480 --> 00:27:47.799
The underlying rules should be. But I agree with more
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of an election procedures.
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The blocking charge policy is in my view unfounded and
466
00:27:55.799 --> 00:27:59.440
creates more problems than it's worth. It explains a large
467
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part of the delay between the filing for an election
468
00:28:03.079 --> 00:28:06.599
the holding of an election, and it's the tail that
469
00:28:06.720 --> 00:28:08.400
wags the dog for.
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NLRB representation procedures.
471
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And maybe other areas as well. You need to think
472
00:28:13.599 --> 00:28:16.720
more concretely about it. But again, I think the Board
473
00:28:16.759 --> 00:28:21.599
has to readjust itself. Otherwise the courts of appeals are
474
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going to say, gee wiz, you know, that's their view
475
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of the law. Our view of the law is different,
476
00:28:26.200 --> 00:28:28.400
and the Supreme Court said it's our view of the
477
00:28:28.480 --> 00:28:32.279
law that counts. The adoption of deference that is out
478
00:28:32.319 --> 00:28:37.319
there has been substantially diminished. So I don't think it's
479
00:28:37.359 --> 00:28:40.559
going to help us that much of going forward. So
480
00:28:40.640 --> 00:28:44.400
the more that our rules are based on information that
481
00:28:44.480 --> 00:28:47.079
we've collected, and I think if we make this clear
482
00:28:47.119 --> 00:28:51.480
to the regulated industry, we'll get more response than perhaps
483
00:28:51.559 --> 00:28:54.480
we've gotten in the past, since in the interest it's
484
00:28:54.480 --> 00:28:57.160
in the interest of some of these folks to have the.
485
00:28:57.079 --> 00:28:58.599
Board's positions sustained.
486
00:29:00.079 --> 00:29:04.799
Yeah, Alex, I just quickly add I agree with everything
487
00:29:04.839 --> 00:29:09.359
that Sam and Marvin have said, and I think clearly
488
00:29:09.440 --> 00:29:15.000
that procedural procedural stuff lends itself much more readily to
489
00:29:15.160 --> 00:29:17.039
the banking process.
490
00:29:17.599 --> 00:29:17.720
Uh.
491
00:29:18.039 --> 00:29:21.759
And you know, just in the blocking charge area, why
492
00:29:21.759 --> 00:29:24.799
don't we simply have a rule that says, in all
493
00:29:24.920 --> 00:29:27.480
cases we simply vote in im pound period.
494
00:29:28.799 --> 00:29:31.759
I agree, voting and pound and tell us what practical
495
00:29:31.799 --> 00:29:32.599
consequences are.
496
00:29:32.720 --> 00:29:33.279
Yeah, and.
497
00:29:35.000 --> 00:29:38.599
You know, take public comment on that. I'm not sure why,
498
00:29:39.079 --> 00:29:41.160
you know what the objection to that would be. But
499
00:29:41.240 --> 00:29:43.599
you know, just across the board, that eliminates a lot
500
00:29:43.599 --> 00:29:46.279
of stuff in the substance of area. Let me just
501
00:29:46.359 --> 00:29:50.319
offer one suggestion. I mean, when I was on the board,
502
00:29:50.440 --> 00:29:54.559
I thought we consumed an an ordinate amount of time
503
00:29:55.039 --> 00:30:00.839
fly specking people's personnel policies, right, you know, I think
504
00:30:00.839 --> 00:30:04.119
that a rule suppose you had a rule that said,
505
00:30:04.640 --> 00:30:09.920
if you publish a disclaimer of some kind in your
506
00:30:10.079 --> 00:30:17.160
personnel policy handbook, that's sufficient to rebut to create a
507
00:30:17.200 --> 00:30:21.680
rebuttable presumption that even if you're wrong on a word
508
00:30:21.920 --> 00:30:25.759
or could be interpreted in a different way. I mean,
509
00:30:25.799 --> 00:30:29.640
you know, this kind of sooth saying that the board
510
00:30:29.880 --> 00:30:33.519
engaged in with respect to how employees would view language
511
00:30:33.519 --> 00:30:38.519
in a handbook was always absurd in my view.
512
00:30:39.240 --> 00:30:43.920
And if you could correct all that and remove most of.
513
00:30:43.839 --> 00:30:46.680
That litigation simply by saying, hey, if you put a
514
00:30:46.720 --> 00:30:49.799
disclaimer in there, then you're home free and.
515
00:30:49.839 --> 00:30:52.480
Disclaimer It might not be sufficient, but be very helpful.
516
00:30:52.480 --> 00:30:54.160
But we could if there are.
517
00:30:54.039 --> 00:30:57.160
Things we don't we are clear should not be in
518
00:30:57.200 --> 00:31:00.119
the handbook, we could say that these things should not
519
00:31:00.160 --> 00:31:01.640
be in your handbook, don't make it.
520
00:31:01.559 --> 00:31:03.559
A subject of case by case adjudication.
521
00:31:05.359 --> 00:31:07.519
Well, and I think Brian and Sam Ray is a
522
00:31:07.599 --> 00:31:09.400
really good point, and I will just add to that
523
00:31:09.440 --> 00:31:12.119
with the absurdity of the board, which is the board
524
00:31:12.160 --> 00:31:15.079
will not tell you how to change those rules to
525
00:31:15.119 --> 00:31:17.160
make them lawful. In fact, the board will just tell
526
00:31:17.200 --> 00:31:18.079
you to get rid of them.
527
00:31:18.359 --> 00:31:18.920
And I think the.
528
00:31:18.880 --> 00:31:21.000
Point that they made here is is that rulemaking could
529
00:31:21.000 --> 00:31:23.799
be used to define what that rule should look like,
530
00:31:23.920 --> 00:31:26.359
rather than the board just saying, well, your rule is wrong,
531
00:31:26.400 --> 00:31:27.960
but I'm not going to tell you why it's wrong.
532
00:31:29.200 --> 00:31:33.119
Yep, that's a great point. I'm going to pivot here,
533
00:31:33.279 --> 00:31:36.880
and I'm mentioned in the opening the Brown Foreman case,
534
00:31:36.920 --> 00:31:39.839
and Marvin you are alluded to it as well. So
535
00:31:39.920 --> 00:31:42.480
we'll move from should the board be doing rule making
536
00:31:42.519 --> 00:31:45.599
to whether the board may have to do more rulemaking
537
00:31:46.359 --> 00:31:49.440
and just for the audience's sake, Because Brown Foreman was
538
00:31:49.440 --> 00:31:53.359
a case involving the car check decision by the Board
539
00:31:53.480 --> 00:31:58.279
that during the last administration. I'll just summarize it very quickly.
540
00:31:58.759 --> 00:32:01.759
The takeaway from the case was that the Board, if
541
00:32:01.799 --> 00:32:04.720
it's going to develop new policy to the education, must
542
00:32:04.759 --> 00:32:08.759
be drawing its new policy from the facts necessary to
543
00:32:08.839 --> 00:32:15.160
decide that case, as opposed to announcing free standing policy
544
00:32:15.240 --> 00:32:18.440
rules effectively as part of a decision without going through
545
00:32:18.440 --> 00:32:21.039
the rule making process. Now I'm glossing over some detail,
546
00:32:21.400 --> 00:32:23.240
but I do I want to get each of your
547
00:32:23.480 --> 00:32:26.880
take on this case and how it could affect rulemaking
548
00:32:27.000 --> 00:32:31.920
going forward. Professor Striker, I'll start with you. Do you
549
00:32:32.319 --> 00:32:35.559
think this decision is going to have a practical effect
550
00:32:35.599 --> 00:32:38.519
on the Board's approach to policy making? Is is it
551
00:32:38.519 --> 00:32:41.279
going to drive more adjudication or is it just too
552
00:32:41.319 --> 00:32:42.119
soon to tell.
553
00:32:44.039 --> 00:32:44.079
Me?
554
00:32:44.599 --> 00:32:49.799
I favor what the court didn't bound forman but it's
555
00:32:49.839 --> 00:32:55.319
too soon to tell the prompt Yes, And it ties
556
00:32:55.359 --> 00:32:59.480
in what we're saying if in the new post Chevron world,
557
00:32:59.640 --> 00:33:01.839
it's a board is going to say certain things are
558
00:33:02.079 --> 00:33:06.079
obligatory on the nation. They have to have a factual,
559
00:33:06.200 --> 00:33:09.960
evidential basis for what they are doing. They can't simply
560
00:33:10.119 --> 00:33:13.400
say that, you know, we think this decision extends to
561
00:33:13.519 --> 00:33:17.440
this new situation. But it's hard to say, you know,
562
00:33:17.480 --> 00:33:21.119
there's so many different circuits out there, you know. I
563
00:33:21.119 --> 00:33:24.480
think ultimately the Supreme Court is going to have to
564
00:33:24.519 --> 00:33:28.480
say something about it. But Brown Forman can also be distinguished.
565
00:33:31.119 --> 00:33:35.839
The Court said that it was based on an improper
566
00:33:36.000 --> 00:33:39.880
judication in semics because semics did not deal with the
567
00:33:39.960 --> 00:33:43.720
underlying facts. So I think, you know, it read properly
568
00:33:44.519 --> 00:33:48.640
round foreman should put a you know, a halt as
569
00:33:48.680 --> 00:33:52.880
it were, or at least a yellow light on what
570
00:33:52.920 --> 00:33:55.960
the board generally does, which is they sit around the table.
571
00:33:56.720 --> 00:33:59.559
On hard cases, it takes a year. I can't believe
572
00:33:59.599 --> 00:34:04.960
that adjudication is faster than rulemaking, and because in hard
573
00:34:05.039 --> 00:34:08.360
cases it takes a long time to get a board ruling.
574
00:34:08.760 --> 00:34:11.559
That ruling, however, it has to be based on experience,
575
00:34:12.039 --> 00:34:15.920
otherwise you will not command the respect of these courts
576
00:34:16.079 --> 00:34:17.599
in this post Chevron world.
577
00:34:19.599 --> 00:34:22.840
Brian, let me ask you, do you agree with that
578
00:34:22.960 --> 00:34:25.199
the Court and Brown form and get it right? And
579
00:34:25.320 --> 00:34:28.519
is that going to affect how the board calculates whether
580
00:34:28.559 --> 00:34:31.320
he use rulemaking and adjudication going forward.
581
00:34:32.239 --> 00:34:35.400
I think they did get it right, and I think
582
00:34:35.440 --> 00:34:39.800
that you know, the position is well taken. What happens
583
00:34:39.800 --> 00:34:43.920
with it? I agree with Sam completely is it?
584
00:34:44.039 --> 00:34:44.280
You know?
585
00:34:44.360 --> 00:34:47.519
I mean the board has Let's assume I think there's
586
00:34:47.599 --> 00:34:52.519
pending still a motion for reconsideration on bogs, so we
587
00:34:52.639 --> 00:34:53.800
just have the panel.
588
00:34:53.519 --> 00:34:54.760
Decision at this point.
589
00:34:54.840 --> 00:34:57.280
I don't know what's happened with that motion, frankly, but
590
00:34:58.719 --> 00:35:01.599
let's assume that it's either denied or the the the
591
00:35:02.039 --> 00:35:06.480
enband consideration just reaffirms what the what the what the
592
00:35:06.519 --> 00:35:10.039
panel decision was. I mean, the board still has the
593
00:35:10.639 --> 00:35:16.119
practice of non acquiescence, where if UH in in an
594
00:35:16.159 --> 00:35:19.559
effort to create a national labor policy, they don't. They
595
00:35:20.280 --> 00:35:23.480
agree to disagree with with circuit courts all the time,
596
00:35:24.320 --> 00:35:27.519
So you know, that would be the law at least
597
00:35:27.840 --> 00:35:31.039
in the in the in the sixth Circuit UH, but
598
00:35:31.199 --> 00:35:33.760
might not be elsewhere. I think that's why I think
599
00:35:33.760 --> 00:35:36.400
it might take some time for this to to to
600
00:35:36.480 --> 00:35:40.239
work its way through the system. And there are I
601
00:35:40.280 --> 00:35:46.320
suppose nuances to UH to Brown Foreman that would give
602
00:35:46.360 --> 00:35:51.480
the Board and out in terms of UH of trying
603
00:35:51.519 --> 00:35:55.760
to avoid the the the full impact of the decision.
604
00:35:56.159 --> 00:35:58.960
But I think it's pretty clear from the board's reaction
605
00:35:59.159 --> 00:36:04.440
to that decision, both you know, publicly by seeking reconsideration
606
00:36:05.159 --> 00:36:07.800
and even in you know, certain public statements. I think
607
00:36:07.800 --> 00:36:13.039
that the the board kind of views that, uh, that
608
00:36:13.119 --> 00:36:16.559
decision is virtually existential to their way of doing business.
609
00:36:16.880 --> 00:36:20.519
So uh, I think just that view.
610
00:36:20.400 --> 00:36:24.159
Reflects the fact that, yeah, if that does, finally, when
611
00:36:24.199 --> 00:36:28.480
it percolates all the way through, become kind of the standard,
612
00:36:28.679 --> 00:36:31.920
then they're going to have to change the way they operate.
613
00:36:33.360 --> 00:36:36.719
And you you mentioned the non acquiescence doctor, and Marvin,
614
00:36:36.760 --> 00:36:39.960
I know you referenced this in your earlier answer. Do
615
00:36:40.000 --> 00:36:44.440
you think non acquiescence, the practice of not following such
616
00:36:44.480 --> 00:36:47.440
a president outside that circuit is going to mute the
617
00:36:47.480 --> 00:36:50.480
effect of ground Foreman or could you see it getting
618
00:36:50.480 --> 00:36:51.760
picked up in other circuits?
619
00:36:54.360 --> 00:36:56.039
I'm sorry, who was that dorining that? Brian or me?
620
00:36:56.840 --> 00:36:58.880
That was that was for you? Marmon? Sorry?
621
00:36:59.159 --> 00:37:04.880
Sorry, Well, I think it will in the sense that
622
00:37:05.559 --> 00:37:08.800
the Board will say we're allowed to choose how and
623
00:37:08.920 --> 00:37:13.159
has frequently is that we're allowed to choose how we function,
624
00:37:13.480 --> 00:37:17.480
and the Act allows through adjudication or rule making and
625
00:37:17.519 --> 00:37:18.559
we're not going to be bound by that.
626
00:37:19.079 --> 00:37:21.840
And if I could just back up on so.
627
00:37:21.800 --> 00:37:24.239
I do think the board will not acquiesce to this
628
00:37:24.559 --> 00:37:27.199
general statement that they have to do rule making.
629
00:37:28.320 --> 00:37:30.000
And if I could just back up.
630
00:37:29.920 --> 00:37:33.199
On Brown Foreman for a second, which is I think
631
00:37:33.239 --> 00:37:36.599
Brown Foreman was sort of like a perfect storm. You
632
00:37:36.679 --> 00:37:40.840
do not often see board decisions that are arguably the
633
00:37:41.039 --> 00:37:41.719
entirety of.
634
00:37:41.639 --> 00:37:43.199
The decision is FIPPEDA.
635
00:37:45.039 --> 00:37:49.000
But Sex is that rare decision in which the court
636
00:37:49.079 --> 00:37:53.639
I think was would have been irresponsible to not look
637
00:37:53.679 --> 00:37:57.800
at this and say, you, so, there's a very long
638
00:37:57.920 --> 00:38:01.280
there's a much longer Sex explanation needs to be understood.
639
00:38:01.320 --> 00:38:04.760
Definitely understand this. But the issue was you have to
640
00:38:04.800 --> 00:38:05.400
follow in our.
641
00:38:05.320 --> 00:38:09.800
Impetition if the union aster recognition, the petition had been
642
00:38:09.840 --> 00:38:12.920
filed INX, so that was not an issue in the case.
643
00:38:13.480 --> 00:38:17.719
There were under labor practices to justify under SEMX doing
644
00:38:17.760 --> 00:38:20.320
away with your chance that held an election. But there
645
00:38:20.360 --> 00:38:25.320
were so the unbelabor practices were so pervasive that it
646
00:38:25.679 --> 00:38:31.079
under dissol fullmark violations. Yes, Hallmark violations fell under gissle.
647
00:38:31.360 --> 00:38:36.519
So yeah, and so the entirety of the case arguably
648
00:38:37.119 --> 00:38:43.159
was dicta and faced with that that culmination, again, I
649
00:38:43.199 --> 00:38:44.039
think the court.
650
00:38:43.840 --> 00:38:46.960
Would have been it would have been improper for the.
651
00:38:46.920 --> 00:38:49.199
Court to allow it to continue to go forward. It
652
00:38:49.280 --> 00:38:54.360
was clearly not within what the decision INEX was not
653
00:38:54.480 --> 00:38:57.039
addressing the issues in the case or the facts in
654
00:38:57.079 --> 00:39:02.039
the case. So in that this was the right decision,
655
00:39:02.119 --> 00:39:05.119
I don't know if other courts will adopt it. I
656
00:39:05.159 --> 00:39:10.000
don't know if it's the right decision in all circumstances.
657
00:39:10.320 --> 00:39:12.719
I do think that there continues to be an area
658
00:39:12.800 --> 00:39:15.239
where if the actual.
659
00:39:14.840 --> 00:39:17.519
Issue is in the case, you should be able to
660
00:39:17.719 --> 00:39:18.880
issue it through adjudication.
661
00:39:19.320 --> 00:39:22.079
But if you're going to do this a broad spectrum
662
00:39:22.199 --> 00:39:25.559
change to the law that addresses issues.
663
00:39:25.320 --> 00:39:27.480
That are not even an issue in the case, I
664
00:39:27.519 --> 00:39:28.239
think it's.
665
00:39:28.039 --> 00:39:31.960
True that that is probably a better that their rulemaking
666
00:39:32.000 --> 00:39:36.920
is a better mechanism for that, and non acquiescence it
667
00:39:36.920 --> 00:39:39.639
shouldn't affect that. I think that that's just good policy
668
00:39:39.679 --> 00:39:43.840
and good procedure. And if the board chooses not to acquiesce,
669
00:39:44.199 --> 00:39:45.880
I think they're going to invite more of these kind
670
00:39:45.880 --> 00:39:49.440
of challenges the further they get from the factual situation
671
00:39:49.559 --> 00:39:50.920
that's before them.
672
00:39:51.920 --> 00:39:53.480
And just to pick up on that point, they don't
673
00:39:53.480 --> 00:39:56.280
have to. I've written about non acquies since a long
674
00:39:56.320 --> 00:39:59.280
time ago. They don't have to say the non aquias,
675
00:39:59.280 --> 00:40:04.159
and they're just saying, we view this case as limited
676
00:40:04.239 --> 00:40:09.280
to its facts, and our facts are different limited.
677
00:40:09.639 --> 00:40:10.599
We're limited to its facts.
678
00:40:10.599 --> 00:40:13.679
And the way Marvin suggested that this was the issuance
679
00:40:13.679 --> 00:40:15.199
of a general statement that did.
680
00:40:15.079 --> 00:40:20.039
Not deal with the actual facts of the case. No,
681
00:40:20.119 --> 00:40:20.639
that's great.
682
00:40:21.400 --> 00:40:24.760
I want to shift now to a different decision, Professor Structor,
683
00:40:24.800 --> 00:40:28.280
you've already referenced a couple of times look for Bright.
684
00:40:28.920 --> 00:40:31.239
So we know that the Supreme Court more terms ago
685
00:40:31.320 --> 00:40:34.800
now did away with what the former doctrines of deference
686
00:40:34.800 --> 00:40:37.599
overturned the Chevron decision. So they course ought to be
687
00:40:37.639 --> 00:40:40.280
reading the law as the law is written and giving
688
00:40:40.280 --> 00:40:44.480
it its best meaning. And that has some pretty clear
689
00:40:44.679 --> 00:40:47.599
implications for rule making. It could make agencies job a
690
00:40:47.639 --> 00:40:50.800
little more difficult. So Professor Structors, you play that out
691
00:40:50.800 --> 00:40:53.280
a little bit, like, how does loc and Bright fit
692
00:40:53.360 --> 00:40:56.880
into this? Is but going to mute any shift toward
693
00:40:56.960 --> 00:40:58.920
rule making. Is it just going to get you know,
694
00:41:00.239 --> 00:41:03.119
partner or does the board get some kind of boost
695
00:41:03.679 --> 00:41:06.760
in court by virtue of the fact that it's gone
696
00:41:06.760 --> 00:41:11.679
through a robust rulemaking process and solicited from which great
697
00:41:11.800 --> 00:41:12.320
is this time?
698
00:41:13.360 --> 00:41:18.239
Well, the Court had a narrow exception for situations where
699
00:41:18.280 --> 00:41:22.519
the Act, best read delegates interpretive authority to the Board.
700
00:41:23.320 --> 00:41:24.880
And this brings me back to the use of the
701
00:41:24.880 --> 00:41:29.840
word interfere in eight A one, where it's clear Congress
702
00:41:29.880 --> 00:41:33.840
abandoned the common law of definitions and there's some room
703
00:41:33.920 --> 00:41:39.039
there interpreting what interfere was, and there are limits to it,
704
00:41:39.480 --> 00:41:42.440
as the Supreme Court recognized in bel Aerospace.
705
00:41:42.760 --> 00:41:44.159
So put aside that exception.
706
00:41:45.039 --> 00:41:48.519
Outside of that narrow exception where the best reading of
707
00:41:48.559 --> 00:41:52.039
the statue is that there's interpret there's delegation of interpret
708
00:41:52.039 --> 00:41:55.800
of the authority to the agency, as I read, and
709
00:41:55.840 --> 00:41:58.719
I think they're pretty clear on this. When it comes
710
00:41:58.719 --> 00:42:02.360
to interpretation of the Organic Statute, it is.
711
00:42:02.239 --> 00:42:03.079
For the courts.
712
00:42:03.599 --> 00:42:08.079
And that's why the premise of the Board's decision has
713
00:42:08.199 --> 00:42:11.000
to be something other than this is our view of
714
00:42:11.039 --> 00:42:12.559
the statute.
715
00:42:12.760 --> 00:42:13.920
It has to be based on.
716
00:42:15.280 --> 00:42:21.000
Experience, on the reactions they're getting from the regulated industry,
717
00:42:22.559 --> 00:42:26.079
and we think this is what's going to work. Otherwise
718
00:42:26.119 --> 00:42:28.599
they are not going to get respect. But there's another
719
00:42:28.639 --> 00:42:33.880
adoption called skidmore respect and skid more. Respect you know,
720
00:42:34.639 --> 00:42:37.400
is a form of respect. It's not deference, but it's
721
00:42:37.440 --> 00:42:40.840
based on the quality of the board's reasoning. So if
722
00:42:40.880 --> 00:42:43.880
the board's only reason is this is how we view
723
00:42:45.079 --> 00:42:48.559
a prior decision, I think it's not going to do
724
00:42:48.599 --> 00:42:52.199
well in the courts in these controversial cases. Most cases
725
00:42:52.239 --> 00:42:55.960
are not controversial, but in the controversial cases they have
726
00:42:56.000 --> 00:42:59.159
to premise that decision in other ways. I'm not saying
727
00:42:59.239 --> 00:43:03.679
it necessary requires rulemaking. I think if rulemaking is well done,
728
00:43:03.880 --> 00:43:07.519
it can provide some information and you know, the board
729
00:43:07.559 --> 00:43:11.880
can also have people give testimony, even if it's not
730
00:43:11.920 --> 00:43:14.679
a rule. They can give a notice that we're going
731
00:43:14.719 --> 00:43:15.920
to do this. We want to hear what.
732
00:43:15.880 --> 00:43:19.039
People have to say. Doesn't formally have to be.
733
00:43:19.320 --> 00:43:22.000
Five point fifty three APA rulemaking, but the point is
734
00:43:22.559 --> 00:43:25.239
the decision has to be based on much more than
735
00:43:25.280 --> 00:43:26.320
this is our view.
736
00:43:26.119 --> 00:43:27.800
Of the statute.
737
00:43:29.159 --> 00:43:33.519
Let me ask about a different potential barrier to rulemaker,
738
00:43:33.559 --> 00:43:36.599
at least another layer. Brian, you talked a little bit
739
00:43:36.599 --> 00:43:40.079
earlier about all of the different layers of review you
740
00:43:40.119 --> 00:43:42.960
may have to go through with rule making, and I
741
00:43:43.000 --> 00:43:46.079
think it's no secret to this administration has added another
742
00:43:46.960 --> 00:43:49.679
the position of the current administration is that there is
743
00:43:49.679 --> 00:43:52.039
no such thing as an independent agency. I mean that
744
00:43:52.119 --> 00:43:56.480
even independent or formally independent agencies like the Board should
745
00:43:56.519 --> 00:43:59.679
be submitting their rules to the White House or reviewed
746
00:43:59.719 --> 00:44:04.039
before publishing. Do you do you think that is going
747
00:44:04.079 --> 00:44:08.239
to have a have any downward pressure on any potential
748
00:44:08.320 --> 00:44:11.159
shift to rule making. Is that can dissuade the folks
749
00:44:11.159 --> 00:44:12.800
in the ages because look, they don't have to do
750
00:44:12.840 --> 00:44:16.239
that for adjudication. Is that going to affect the calculus?
751
00:44:16.559 --> 00:44:18.760
Yeah, well, I think it's going to depend upon the
752
00:44:19.480 --> 00:44:22.039
political or policy alignments.
753
00:44:22.280 --> 00:44:23.800
I mean, I think when you have a.
754
00:44:23.719 --> 00:44:29.440
Situation where you have a board majority that's kind of
755
00:44:29.800 --> 00:44:34.599
politically or philosophically aligned with an administration, there's going to
756
00:44:34.639 --> 00:44:38.719
be less hesitancy to send a rule that they construct
757
00:44:39.119 --> 00:44:44.039
to Ohirah for for uh, you know, for review and
758
00:44:44.039 --> 00:44:46.880
and and and a blessing for the White House. I
759
00:44:46.960 --> 00:44:52.800
think there their views may be more aligned. I think conversely,
760
00:44:52.920 --> 00:44:57.800
if you have a misalignment between which happens because of
761
00:44:57.840 --> 00:45:00.599
the way vacancies are filled on the board, if you
762
00:45:00.719 --> 00:45:04.840
have a misalignment between the kind of majority view in
763
00:45:04.880 --> 00:45:08.239
a particular area on the Board and the White House,
764
00:45:08.599 --> 00:45:12.480
I think that's going to be a distinct disincentive to
765
00:45:11.960 --> 00:45:17.239
UH to proceeding by rulemaking. I think, unfortunately, it may
766
00:45:17.280 --> 00:45:20.559
depend largely on the politics of the situation.
767
00:45:22.559 --> 00:45:25.639
Yeah, on the politics point, let me ask I'll put
768
00:45:25.760 --> 00:45:31.960
you on this one, Marvin. Is it possible that the
769
00:45:32.000 --> 00:45:34.960
politics could affect whether even if this administration, because I
770
00:45:34.960 --> 00:45:37.559
think you mentioned before the current chair has said he's
771
00:45:37.599 --> 00:45:41.119
not a particular fan of rulemaking, But could that influence
772
00:45:41.159 --> 00:45:44.800
who is appointed to who is appointed to the board.
773
00:45:44.920 --> 00:45:50.760
Could a philosophy toward rulemaking or toward adjudication affect future
774
00:45:50.880 --> 00:45:53.199
nominees and the willingness of the future president to put
775
00:45:53.239 --> 00:45:55.519
somebody on there who would write rules that would be
776
00:45:55.559 --> 00:45:56.400
sent to the White House?
777
00:45:56.960 --> 00:45:59.480
Or is this just too in.
778
00:45:59.400 --> 00:46:03.400
The weeds to affect confirmation and nomination issues?
779
00:46:05.039 --> 00:46:09.800
Well, I think for I would think that the White
780
00:46:09.840 --> 00:46:11.840
House at a minimum would want to.
781
00:46:11.800 --> 00:46:16.000
Know whether they would how.
782
00:46:16.039 --> 00:46:17.920
Given under this new structure, I would think they would
783
00:46:17.920 --> 00:46:20.199
want to know how would you address new rules, how
784
00:46:20.199 --> 00:46:22.480
would you address changes in the law? Would you do
785
00:46:22.599 --> 00:46:25.400
it through I mean, even when we got interviewed, there
786
00:46:25.400 --> 00:46:27.079
were questions about what do you think of that? About
787
00:46:27.119 --> 00:46:29.320
invitations of file briefs. What do you think about this?
788
00:46:29.480 --> 00:46:32.360
Should you file invitation of file briefs? In should you
789
00:46:32.360 --> 00:46:35.440
have an invitation of file briefs and any change in precedent.
790
00:46:36.039 --> 00:46:37.800
So I think it's already.
791
00:46:37.360 --> 00:46:38.920
Sort of built in that they would want to know
792
00:46:39.000 --> 00:46:41.360
what procedures you are going to apply if you are
793
00:46:41.400 --> 00:46:44.119
a board member joining the board, And I do think
794
00:46:44.159 --> 00:46:47.639
all of that is put into the calculus of German
795
00:46:47.679 --> 00:46:49.760
whether you would want the person at the board. And
796
00:46:49.840 --> 00:46:53.280
I think a white House, whether a Republican or Democrat,
797
00:46:53.320 --> 00:46:57.199
that wants more control over the board, would want greater
798
00:46:57.360 --> 00:47:00.719
assurances that they would use rulemaking more often because of
799
00:47:00.760 --> 00:47:02.639
the control that the White House can assert over it,
800
00:47:03.039 --> 00:47:06.960
and would want assurances that they would aid that they
801
00:47:07.000 --> 00:47:10.559
would abide by the I think there's the other part
802
00:47:10.559 --> 00:47:13.199
of this is that you can send it to the
803
00:47:13.559 --> 00:47:17.920
to the White House or approval, but you also what
804
00:47:18.000 --> 00:47:19.599
kind of what level of defference are you going to
805
00:47:19.679 --> 00:47:21.679
give the White House in that approval process or is
806
00:47:21.719 --> 00:47:25.159
this going to turn into a you know, a fight
807
00:47:25.280 --> 00:47:28.079
of you know, who wins out at the end. So
808
00:47:28.239 --> 00:47:30.239
I think that's already built in, But I do think
809
00:47:30.280 --> 00:47:32.159
it's going to be something that's going to be contemplated
810
00:47:32.239 --> 00:47:36.400
in the future and particularly and I would say I
811
00:47:36.440 --> 00:47:39.480
actually think it will be more pronounced in a Democrat
812
00:47:39.480 --> 00:47:43.280
administration than in a Republican administration, because I don't think
813
00:47:43.760 --> 00:47:47.239
that Republican administrations are spending the time digging into the
814
00:47:47.280 --> 00:47:49.800
minutia of the NLRA to the same extent that you
815
00:47:49.840 --> 00:47:52.119
see during the Democrat administration.
816
00:47:51.800 --> 00:47:55.599
Who has comes in with very specific.
817
00:47:55.000 --> 00:48:00.000
And minor issues that they want dealt with, Whereas in general,
818
00:48:00.159 --> 00:48:02.480
I think on the Republican side, you picked the people
819
00:48:02.519 --> 00:48:04.119
that you think are going to do a good job
820
00:48:04.679 --> 00:48:10.480
and that are aligned on a philosophical perspective, but you
821
00:48:10.559 --> 00:48:13.360
have other things that that are you know, your primary
822
00:48:13.400 --> 00:48:16.400
concern So I actually, you know, when's the last time
823
00:48:16.400 --> 00:48:19.679
you saw a Republican You've never seen a Republican president
824
00:48:19.719 --> 00:48:23.320
go out on the line and picket with or strike.
825
00:48:23.119 --> 00:48:25.440
With employees, but you see, but you see.
826
00:48:25.199 --> 00:48:28.079
That in Democrat administrations, which I think is sort of
827
00:48:28.159 --> 00:48:33.159
shows a significant difference in the interest and control over
828
00:48:33.159 --> 00:48:33.920
the board itself.
829
00:48:34.320 --> 00:48:35.079
And Alex may.
830
00:48:35.000 --> 00:48:38.320
I introduced another point. I agree with everything Marvin said.
831
00:48:39.039 --> 00:48:39.639
I've been right.
832
00:48:39.719 --> 00:48:41.320
I wrote a brief on this, and I just wrote
833
00:48:41.320 --> 00:48:45.320
a piece in regulatory review, I think if there's any
834
00:48:45.519 --> 00:48:50.280
hope in limiting Trump Versus Slaughter, which is the decision
835
00:48:50.320 --> 00:48:54.000
that says pretty much the independent agencies are gone, and
836
00:48:54.039 --> 00:48:56.920
that's for the Board to remain in an adjudicative agency,
837
00:48:57.440 --> 00:49:02.880
the more it engages in rulemaking, the more likely it
838
00:49:02.920 --> 00:49:06.360
is it has to be under the president's control. And
839
00:49:06.440 --> 00:49:10.480
my problem with adjudication where the president can fire the
840
00:49:10.480 --> 00:49:14.599
adjudicators is it really cuts a hole into the integrity
841
00:49:14.599 --> 00:49:18.719
of adjudications. I know there's a policy dimension to adjudication,
842
00:49:19.719 --> 00:49:24.599
but I think that's if the Board wants to retain
843
00:49:24.679 --> 00:49:28.800
This is something Roger King and I have written about if.
844
00:49:28.679 --> 00:49:31.639
The Board wants to retain its role as.
845
00:49:31.480 --> 00:49:35.320
An adjudicative agency, and I think that's important. Now it's
846
00:49:35.320 --> 00:49:39.400
standing the need for rulemaking in certain areas. I think
847
00:49:39.400 --> 00:49:43.119
it has to make certain structural changes to survive Trump
848
00:49:43.239 --> 00:49:47.400
Versus Slaughter. So that's just another point of view, because
849
00:49:47.480 --> 00:49:50.559
I think it's unclear at this point to what extent
850
00:49:50.599 --> 00:49:55.280
Trump Versus Slaughter applies to purely adjudicatory agencies.
851
00:49:55.519 --> 00:49:56.599
The STC in.
852
00:49:56.719 --> 00:50:00.840
Trump Versus Slaughter was not a purely adjudicator story agency.
853
00:50:01.159 --> 00:50:04.280
It was in nineteen thirty five, but it wasn't today.
854
00:50:05.199 --> 00:50:08.760
And the board largely is adjudicative. But you know, there
855
00:50:08.760 --> 00:50:12.280
are things that can take rule making away from the board,
856
00:50:12.760 --> 00:50:16.039
put it in charge of the Department of Labor or whatever,
857
00:50:16.719 --> 00:50:19.079
as is done with Ashria. So this is another point
858
00:50:19.119 --> 00:50:22.719
of view on this issue, and it argues for less
859
00:50:22.800 --> 00:50:28.559
rulemaking and more adjudications.
860
00:50:29.360 --> 00:50:30.119
I've never heard.
861
00:50:30.559 --> 00:50:32.599
That's the first time I've heard that. You know, that
862
00:50:32.679 --> 00:50:36.239
point about purely a judicatory bodies and slaughtered the great point.
863
00:50:37.039 --> 00:50:41.519
Send it to you. I'll send you our writings on excellent.
864
00:50:42.760 --> 00:50:45.199
Close up because I think we're coming up against the
865
00:50:45.239 --> 00:50:49.880
hour and the panel largely as I've been hearing, is
866
00:50:50.079 --> 00:50:54.599
mildly positive on more rulemaking at the board. But Brian,
867
00:50:54.679 --> 00:50:57.679
let me let me ask you to bring us home.
868
00:50:58.119 --> 00:51:01.159
Are there bound sides that we should be thinking about
869
00:51:01.360 --> 00:51:06.000
if the Board were to emphasize rulemaking going forward? Are
870
00:51:06.000 --> 00:51:10.440
their potential, you know, negatives to the direction of board
871
00:51:10.440 --> 00:51:13.559
policy from if we were to follow that process more often?
872
00:51:14.519 --> 00:51:18.480
Well, I think that, you know, I guess it always
873
00:51:18.519 --> 00:51:22.239
depends upon what one's viewpoint is. But I think that
874
00:51:22.840 --> 00:51:26.519
if if you have a particular view about what the
875
00:51:26.559 --> 00:51:30.920
appropriate policy is, and I think that, you know, one
876
00:51:31.000 --> 00:51:34.039
of the one of the benefits of rulemaking, of course,
877
00:51:34.119 --> 00:51:38.920
is that theoretically anyway, you have more predictability and more stability.
878
00:51:39.760 --> 00:51:43.519
The problem always is is if that stability and predictability
879
00:51:43.800 --> 00:51:45.800
is with respect.
880
00:51:45.360 --> 00:51:49.159
To a policy that you might not like that you
881
00:51:49.239 --> 00:51:53.239
have a contrary view to, so that uh you know,
882
00:51:53.719 --> 00:51:57.679
it lacks you know, what some people call.
883
00:51:59.039 --> 00:52:04.960
Adjudicatory uh gyrations, other people call agility.
884
00:52:05.159 --> 00:52:05.400
You know.
885
00:52:05.639 --> 00:52:10.199
So I'm not that that that's one potential rulemaking in
886
00:52:10.320 --> 00:52:13.079
one and I think that, uh, this may be where
887
00:52:13.880 --> 00:52:18.480
Margaret and I have a slight disagreement. I do think
888
00:52:18.559 --> 00:52:23.039
that it is it is conceivable anyway that that that
889
00:52:23.880 --> 00:52:26.119
an emphasis on rulemaking.
890
00:52:26.440 --> 00:52:31.480
Uh will, at particularly at present staffing levels, is going
891
00:52:31.559 --> 00:52:35.880
to slow the all over time, is going to slow
892
00:52:35.960 --> 00:52:42.760
the adjudicatory process, which is already uh you know, unconscionably slow.
893
00:52:43.440 --> 00:52:46.440
Uh So, uh, I think those two.
894
00:52:46.280 --> 00:52:51.239
Are are are legitimate second thoughts about things before one
895
00:52:51.400 --> 00:52:54.559
rushes headlong into that it's the exclusive way of the
896
00:52:54.599 --> 00:52:55.440
board functioning.
897
00:52:57.920 --> 00:52:58.519
That's terrific.
898
00:52:59.440 --> 00:53:02.639
Well, we are at the top of the hour. I
899
00:53:02.719 --> 00:53:05.320
do want to all past this back over to Alex
900
00:53:05.360 --> 00:53:07.880
from Fedsock but I want to thank our fantastic panel.
901
00:53:08.320 --> 00:53:11.039
That was a great discussion. I learned a lot and
902
00:53:11.159 --> 00:53:13.519
so thank you all for doing this and really appreciate it.
903
00:53:13.920 --> 00:53:18.559
Thank you, thank you, thank you, thank you.
904
00:53:18.800 --> 00:53:20.880
And on behalf of the Federal Society, I want to
905
00:53:20.880 --> 00:53:23.320
thank our entire panel for sharing their time and expertise
906
00:53:23.360 --> 00:53:25.360
with us. I want to thank our audience for joining
907
00:53:25.360 --> 00:53:29.079
and participating. We welcome listen our feedback by email at
908
00:53:29.199 --> 00:53:33.159
fedsockforums at fedsock dot org and with that we are learned.
909
00:53:33.800 --> 00:53:37.599
Thanks for listening to fedsoc Forums, a Federalist Society podcast.
910
00:53:37.960 --> 00:53:40.519
Be sure to subscribe wherever you get your podcasts so
911
00:53:40.559 --> 00:53:43.480
you won't miss an episode. To learn more, visit our
912
00:53:43.519 --> 00:53:45.400
website fedsoc dot org.