In Marbury v. Madison, Chief Justice Marshall declared that it was the role of the judiciary to determine what the law is. 5 U.S. 137, 177 (1803). Questions of statutory interpretation were generally understood to be left to judges, with the Supreme Court of the United States having the final say. 

In the 1930s, the New Deal brought with it a significant expansion of the executive branch through administrative agencies. In 1935, Congress passed the National Labor Relations Act (NLRA), which established the National Labor Relations Board (Board or NLRB) and tasked the Board with enforcing the NLRA. Congress statutorily granted the NLRB a large swath of power to make its own rules, conduct its own investigations, and notably, to settle disputes between parties where the NLRA may have been violated. 

About a decade after establishing the NLRB, Congress sought to regulate the activity of agencies by passing the Administrative Procedure Act (APA) in 1946. The APA established the bases for which a federal court may vacate an agency’s determination or rule. The APA instructs courts to defer to agencies unless their actions are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A-D). The APA also instructs courts to accept agency factual findings unless they are unsupported by substantial evidence. 5 U.S.C. § 706(2)(E). After the APA’s enactment, courts generally continued to supply their own independent judicial interpretation as to questions of law. See Loper Bright Enters. v. Raimondo, 603 U.S. 369, 387 (2024). 

In 1984, the landmark Chevron decision significantly adjusted how courts interacted with administrative agencies. See Chevron, U.S.A. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). For the following 40 years, Chevron deference applied in situations where agencies offered their own interpretations of ambiguous law. Id. at 843. Where Congressional intent was unclear, Chevron held that it was up to the agencies, not the courts, to decide which statutory interpretation best effectuated public policy. Id. at 865. So long as the agency’s interpretation of an ambiguous or unclear statutory provision was “reasonable,” it was “entitled to deference. Id. at 865-66.

Loper Bright Ends Chevron Deference

The U.S. Supreme Court soundly overruled Chevron in Loper Bright. 

The decision in Loper Bright arose from disputes concerning the Magnunson-Stevens Fishery Conservation and Management Act (MSA) – a statute designed to manage fishery resources due to overfishing. 603 U.S. at 380. Several companies that operate in the Atlantic herring fishery challenged a rule promulgated by the National Marine Fisheries Service (NMFS), the government agency that administers the statute pursuant to a delegation from the U.S. Secretary of Commerce. Id. The rule in question required the companies to pay for “observers” assigned to ride in their vessels to collect data to help manage the fishery. Id. at 380-84. Although the MSA addresses who pays such observers in certain situations, the statute “does not contain similar terms addressing whether Atlantic herring fishermen may be required to bear [such] costs. . . .” Id. at 381. Relying on Chevron, the lower courts showed deference to and ruled in favor of the government’s support for the rule. Id. at 382-84.

The Supreme Court vacated the lower courts’ judgments and remanded the cases for further proceedings consistent with its opinion. Id. at 413. In so doing, the Court decided that courts are to exercise independent judgment to determine the meaning of statutory provisions and are no longer required to defer to an agency’s interpretation of ambiguous statutory language unless the governing statute expressly says otherwise. Id. at 398-407, 412.

Does Loper Bright Apply to NLRB Cases?

Well before the decision in Chevron, judges afforded the NLRB a significant level of deference. The Supreme Court held on several occasions that it is up to the Board to balance conflicting legitimate interests under the NLRA in order to “effectuat[e] national labor policy” while keeping Congressional intent in mind. See NLRB v. Truck Drivers Local Union No. 449, Int’l Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Am., A.F.L., 353 U.S. 87, 96 (1957); NLRB v. Int’l Ass’n of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, 434 U.S. 335, 350 (1978); see also NLRB v. Hearst Publications, Inc., 322 U.S. 111, 130-31 (1944). 

In light of the historical deference afforded the NLRB, some have questioned whether Loper Bright applies to it. While the Loper Bright decision itself and several subsequent federal appellate court decisions appear to answer the question with a resounding “yes,” one federal appellate court seems less convinced.

According to the weight of authority, the NLRB is neither immune from the decision in Loper Bright nor entitled to receive any special deference stemming from the pre-Chevron deference afforded to the Board. For one, the Supreme Court in Loper Bright did not say the decision does not apply to the NLRB. In addition, since the Supreme Court issued its decision in Loper Bright, several federal circuit courts of appeals have applied the decision in NLRB cases. See, e.g., United Nat. Foods, Inc. v. NLRB, No. 21-60532, 2025 WL 1513781, at *5 (5th Cir. May 28, 2025) (“In our prior opinion in this case, we observed that courts accord deference to the NLRB’s ‘reasonable interpretations of ambiguous provisions in the NLRB’ under Chevron. . . . Following Loper Bright, we no longer accord such deference. We must instead ‘exercise [our] independent judgment in deciding whether an agency has acted within its statutory authority.’”) (internal citations omitted); 3484, Inc. v. NLRB, No. 24-9511, 2025 WL 1367252, at *4 (10th Cir. May 12, 2025) (“As for our review of the Board’s interpretation of the NLRA, in the past we have shown ‘considerable deference’ to the Board. But recently Loper Bright . . . invoked the [APA] to hold that ‘[c]ourts must exercise independent judgment in deciding whether an agency has acted within its statutory authority’ and ‘may not defer to an agency interpretation of the law simply because a statute is ambiguous.’ Hence, deference is no longer owed.”) (internal citations omitted); Rieth-Riley Constr. Co., Inc. v. NLRB, 114 F.4th 519, 528 (6th Cir. 2024) (“We do not defer to the NLRB’s interpretation of the NLRA, but exercise independent judgment in deciding whether an agency acted within its statutory authority.”).

Nonetheless, a decision from the U.S. Court of Appeals for the Third Circuit suggests the answer is not so clear. In Alaris Health at Boulevard East v. National Labor Relations Board, 123 F. 4th 107 (2024), the court addressed whether an employer’s unilateral decision to end “hazard pay” that it provided to employees during the COVID-19 pandemic was a mandatory subject of bargaining. 123 F. 4th at 120-23. The court agreed with the Board’s conclusion that the pay was such a subject, and, in doing so, opined that it was “somewhat of an open question” as to whether the traditional deference it afforded the Board’s interpretation of the NLRA “survives” the decision in Loper Bright. Id. at 120-21. The court posited, “[i]t would appear to us . . . that judicial deference to the Board’s classifications of the ‘terms and conditions of employment’ under the [NLRA] is distinct from Chevron deference, as the Supreme Court’s decisions developing that deference to the Board predate Chevron. . . .” Id. “Ultimately” the court “[did] not decide whether deference to the Board’s designation of mandatory bargaining subjects under [the NLRA] survives the Supreme Court’s rejection of Chevron,” reasoning that “[e]ven on de novo review, we reach the same conclusion as the Board. . . .” Id. at 121. 

Adding to the wrinkle for New York practitioners, the Second Circuit has not yet addressed Loper Bright in an NLRB case.

Will the Supreme Court Weigh-In?

Since handing down its decision in Loper Bright, the Supreme Court has granted petitions for writ of certiorari in two cases pertaining to the NLRB, which circuit courts decided prior to Loper Bright. See Hosp. Menonita de Guayama, Inc. v. NLRB, 145 S. Ct. 982 (2024) (mem.); United Nat. Foods, Inc. v. NLRB, 144 S. Ct. 2708 (2024) (mem.). In both cases, the Supreme Court vacated the circuit court judgments and remanded the cases for further consideration in light of Loper Bright.

In one of the cases – United Natural Foods, Inc. v. National Labor Relations Board – the Fifth Circuit acknowledged on remand that, following Loper Bright, it must “exercise [its] independent judgment in deciding whether an agency has acted within its statutory authority.” 2025 WL 1513781, at *5. Applying Loper Bright, the court then proceeded to reach the same conclusion that it did when it applied Chevron. The other case, Hosp. Menonita de Guayama, Inc. v. National Labor Relations Board, remains pending before the District of Columbia Circuit Court of Appeals.

In a third case, the Supreme Court outright denied a petition for writ of certiorari stemming from a decision issued by the Ninth Circuit prior to the decision in Loper Bright. See Valley Health Sys., LLC v. NLRB, 145 S.Ct. 1425 (2025).

Conclusion

Time will tell if/when the Supreme Court sees a need to address Loper Bright in an NLRB case. And, time will tell if the Second Circuit has anything to add to the discussion.

Editor’s note: Michael Fuccile, a Seton Hall University School of Law student, contributed to the preparation of this article.

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Originally published on August 1, 2025 online with Federal Bar Council Quarterly. Reprinted with permission. Further duplication without permission is prohibited. All rights reserved.