Rieth-Riley Construction Company, Inc. v. National Labor Relations Board

T he Nat ion a l L ab or R e l at ion s Bo a r d ’s interpretations of the National Labor Relations Act are entitled to deference if they are “reasonably defensible.” Ford Motor Co. v. NLRB, 441 U.S. 488, 495–97 (1979). Congress made a “conscious decision” to “delegate[e] to the Board . . . the primary responsibility of marking out the scope of the statutory language. . . .” Id. at 496. In Loper Bright Enterprises v. Raimondo, this Court held that when a statute constitutionally delegates discretionary authority to an agency, “courts must respect the delegation, while ensuring that the agency acts within it.” 144 S. Ct. 2244, 2273 (2024). The Sixth Circuit here, citing Loper Bright, stated that it “does not defer to the NLRB’s interpretation of the NLRA. . . .” The first question is: Does this Court’s deferential standard of review for NLRB interpretations of the NLRA survive Loper Bright?

Congress may create multi-member agencies led by presidentially appointed officers removable only for cause. E.g., Humphrey’s Ex’r v. United States, 295 U.S. 602 (1935). The NLRB is an example of such an “independent” agency. Board orders, however, are not self-executing; the Board depends on its presidentially appointed General Counsel to seek their enforcement in court. On Inauguration Day 2021, the President fired the General Counsel without cause. The second question is: May the President remove the NLRB General Counsel at will or only for cause?