Both the Department of Labor and the National Labor Relations Board — in separate cases – just cited a recent Supreme Court decision as their trump card. See “High Court Ruling Hurts Case Against Poster Rule, NLRB Says,” Employment Law 360 (May 24, 2013) and “DOL Says High Court Ruling Bolsters Tip Pool Rule,” Employment Law 360 (May 29, 2013). Judas Priest’s rock anthem You’ve Got Another Thing Coming kept echoing in the background while reading that decision (City of Arlington v. FCC) and answering those spurious arguments. http://www.youtube.com/watch?v=XWhInhE6emE
Karl Llewellyn famously noted that “[o]ne does not progress far into legal life without learning that there is no single right and accurate way of reading one case.” Llewellyn, “Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are To Be Construed,” 3 Vanderbilt L. Rev. 395 (1950). The DOL and the NLRB choose a facile but flawed approach: look for a sound bite.
Both argue that City of Arlington means that administrative agencies always get deference. But, upon close inspection, that is not what it holds: it involves a statute that grants rulemaking authority and that also uses the phrase “reasonable period of time” which the FCC defined as either 90 or 150 days, depending on the category of application. Here, deferral is unsurprising.
What the NLRB and DOL (especially DOL since the majority cites approvingly last term’s decision rejecting DOL’s interpretations and holding that pharmaceutical reps were indeed overtime exempt under the Fair Labor Standards Act) ignore is what Llewellyn taught: context matters more than sound bites.
The majority opinion is clear: agency deference is always a case-specific inquiry:
The fox-in-the-henhouse syndrome is to be avoided not by establishing an arbitrary and undefinable category of agency decisionmaking that is accorded no deference, but by taking seriously and applying rigorously, in all cases, statutory limits on agencies’ authority. Where Congress has established a clear line, the agency cannot go beyond it; and where Congress has established an ambiguous line, the agency can go no further than the ambiguity will fairly allow.
Both the NLRB and the Department of Labor have another thing coming: the high probability that their facile arguments based on misreading this Supreme Court decision will be quickly rejected.