Ogletree Deakins’ Traditional Labor Relations Practice Group is pleased to announce the publication of the Fall 2024 issue of the Practical NLRB Advisor. As this edition of the Advisor goes to press, we were just learning the outcomes of the recent national elections. Like the rest of the country, we plan to take a deep breath and take the time necessary to reflect and take a close look at what effects the national vote will have on federal labor policy. Nationally and regionally the vote reflected some seismic shifts in policy perception and voter alignment. How all of that, plus the hardball politics inside the Beltway will be the focus of our next installment of The Advisor.
In this current issue, however, we have noted how the federal judiciary, most notably the Supreme Court of the United States, has been incrementally reigning in the power of federal regulators and quasi-judicial agencies like the National Labor Relations Board (NLRB). Not only has the federal judiciary raised broad constitutional questions agency power, but the courts have also recently shown a marked sense of skepticism and downright criticism about how agencies are addressing even their most fundamental tasks.
For example, while the NLRB has traditionally enjoyed a remarkable degree of respect from reviewing federal courts and an extremely high “batting average” in having its orders enforced, in recent months federal courts of appeal have ruled that the agency is entitled to absolutely no deference, publicly scolded the agency for failing to follow the court’s remand order, refused to enforce Board orders due to the agency’s lack of substantial evidence, and dramatically narrowed the scope of the agency. The Board is likely to continue to receive many more appellate lumps, but those may pale compared to the new administration’s actions.
We will issue the next edition of the Practical NLRB Advisor in the coming months.
