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

The National Labor Relations Board is responsible for developing national labor policy, but it has historically accomplished its mission through case-by-case decision making rather than through rulemaking. And while that approach has been criticized over the years, it remains the Board’s customary approach and official policy.

But that may be changing. Vacancies at its highest levels have have left the Board unable to reverse its own decisions, and it has been bombarded by requests from businesses to do more rulemaking. A decision from the Sixth Circuit, Brown Forman v. NLRB, has called into question whether it even can develop policy through adjudication—or at least, not in the way it usually does. Will the Board give in to these pressures and write more rules? Should it? And if it does, what will that change mean for businesses and workers? Our expert panel will break it down.

Featuring:

• Prof. Samuel Estreicher, Dwight D. Opperman Professor of Law Director, Center for Labor and Employment Law Co-Director, Institute of Judicial Administration, NYU School of Law
• Brian E. Hayes, Shareholder, Ogletree Deakins
• Marvin Kaplan, Principal, JacksonLewis
• (Moderator) Alex MacDonald, Shareholder & Co-Chair of the Workplace Policy Institute, Littler Mendelson P.C.

   

*******

As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.