UCLA Law Review Volume 52, Issue 5


Can the NLRB Deter Unfair Labor Practices? Reassessing the Punitive-Remedial Distinction in Labor Law Enforcement

Labor law scholars have long recognized that the National Labor Relations Act no longer deters employers from committing unfair labor practices, especially during the crucial time periods of union organizing drives and first contract negotiations. As a result, the Act’s promise of “full freedom of association” has become increasingly illusory. Recent scholarship suggests that discharges based on union activity – the classic employer unfair labor practice – are now commonplace, in large part because employers committed to union avoidance consider them merely a cost of doing business. The remedies available to the National Labor Relations Board to redress labor law violations simply are not burdensome enough to deter unlawful conduct. Scholars and policymakers have recognized this fact and made various proposals for reform. But scholars have not adequately examined the reasoning underlying the strict limitations on the Board’s remedial power. The statute itself appears to supply broad discretion, stating plainly that the Board is empowered to direct offenders to “take such affirmative action … as will effectuate the policies of this Act.” Shortly after the law was enacted, however, the U.S. Supreme Court severely constrained that discretion, holding in Republic Steel Corp. v. NLRB that Board remedies may not be “punitive” in nature and that deterrence is not a permissible rationale on which to premise a particular remedy. Since that time, courts have used the Republic Steel rule to cut back on the Board’s remedial authority. But a comprehensive examination of the basis for, and application of, that rule remains missing in the academic literature. In this Comment, the author provides that examination by surveying the application of Republic Steel to various remedies attempted by the Board and by analyzing whether the rule has any basis in the NLRA. The Comment reveals that the rule never has been applied in a coherent manner and that it lacks support in the legislative history and the statutory language. The author argues that Republic Steel has resulted in confusion and inconsistency, and has played no small part in the Board’s inability to deter unfair labor practices effectively. Furthermore, the author maintains that Congress intended the Board to exercise broad discretion to affirmatively deter violations of the Act. Ultimately, however, the author concludes that doctrinal change will not come about without action by Congress.

The Original Meaning of the Recess Appointments Clause

This Article explores the original meaning of the Recess Appointments Clause. Under the current interpretation, the Clause gives the President extremely broad authority to make recess appointments. The Article argues, however, that the original meaning of the Clause actually confers quite limited power on the President and would not permit most of the recess appointments that are currently made. The language of the Recess Appointments Clause provides that “the President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” The Article makes two basic claims about the original meaning of the Clause. First, it argues that the Clause permits recess appointments only when an office becomes vacant during a recess and when the recess appointment is made during that recess. If an office was vacant while Congress was in session – either because the vacancy arose during a session or a vacancy that arose during a recess continued into a session – the President cannot fill that office with a recess appointment. The prevailing interpretation of the Clause, however, permits the President to make a recess appointment so long as the recess appointment is made during a recess, whether or not the vacancy existed when Congress was in session. Thus, the President can generally make a recess appointment for any office so long as he waits until there is a recess to do so. The Article’s second claim involves the original meaning of the term “recess.” The Article maintains that the Constitution permits recess appointments only during an intersession recess – the recess between two sessions of a Congress – and does not allow such appointments during an intrasession recess – the typically shorter recess taken during a session. Under this view, the President generally would be able to make recess appointments only once each year during the intersession recess. The prevailing interpretation, however, allows the President to make recess appointments many times a year, including during intrasession recesses of ten days and perhaps of even shorter duration. Obviously, the prevailing interpretation provides the President with greater recess appointment authority than does the original meaning.

"Let Economic Equality Take Care of Itself": The NAACP, Labor Litigation, and the Making of Civil Rights in the 1940s

During World War II, the lawyers of the NAACP considered the problem of discrimination in employment as one of the two most pressing problems (along with voting) facing African Americans. In a departure from past practice, they pursued the cases of African American workers vigorously in state and federal courts and before state and federal administrative agencies. These cases offered the NAACP lawyers opportunities to facilitate the growth of the Association, materially assist African American workers, and develop legal doctrine. After the war ended, however, the postwar political and economic climate was less favorable to such cases, and the NAACP’s institutional plans conflicted with the continued pursuit of labor cases. Moreover, the kinds of doctrinal opportunities labor cases offered diverged from the NAACP lawyers’ increasingly single-minded pursuit of desegregation in education. By the time the NAACP lawyers embarked on the path that would ultimately lead them to victory in Brown v. Board of Education, labor cases, and the particular problems of working African Americans, had disappeared from their legal agenda. That loss has had fundamental implications for the civil rights they succeeded in instantiating in constitutional law, and for the civil rights we know as our own today.

Melville B. Nimmer Memorial Lecture: The Pedagogy of the First Amendment: Why Teaching About Freedom of Speech Raises Unique (and Perhaps Insurmountable) Problems for Conscientious Teachers and Their Students

Each year, the UCLA School of Law hosts the Melville B. Nimmer Memorial Lecture. Since 1986, the lecture series has served as a forum for leading scholars in the fields of copyright and First Amendment law. In recent years, the lecture has been presented by such distinguished scholars as Lawrence Lessig, Robert Post, Mark Rose, Kathleen Sullivan, and David Nimmer. The UCLA Law Review has published each of these lectures and proudly continues that tradition by publishing an Essay by this year’s presenter, Professor Sanford Levinson.