National Labor Relations Board in the United States

The National Labor Relations Board prevents and remedies unfair labor practices
committed by private sector employers and unions and safeguards employees’ rights to
organize and determine whether to have unions as their bargaining representative.

The National Labor Relations Board (NLRB) is an independent agency created
by Congress to administer the National Labor Relations Act of 1935 (Wagner
Act; 29 U.S.C. 167). The Board is authorized to designate appropriate units
for collective bargaining and to conduct secret ballot elections to determine
whether employees desire representation by a labor organization.

Practical Information

The National Labor Relations Board (NLRB) is a panel appointed by the president with the advice and consent of the Senate. The board is given the power by the National Labor Relations Act (Wagner Act) to establish procedures for the settlement of questions of union representation and to prevent persons from engaging in unfair labor practices.
(Revised by Ann De Vries)

Legal Materials

The NLRB is responsible for administrating the National Labor Relations Act (29 U.S.C. 151 et. seq.), which governs employer-union relations.

The NLRB Web site posts information about the Board, press releases and NLRB rules, regulations, forms, notices, manuals and decisions back to 1996. For questions, call the Public Information office at 202-273-1991.

Advice Memos (“go” and “no-go” memos) from the NLRB’s Office of General Council, Division of Advice are posted on the NLRB Web site back to 1996, plus a few going as far back as 1969 (www.nlrb.gov/cases-decisions/advice-memos). They are also published in the NLRB Advice Memorandum Reporter (cited as “AMR”) by the Labor Relations Press. The Reporter is searchable on Westlaw back to July 1976 (NLRBG-AMR). Lexis has its own collection going back to April 1976 (LABOR;NLRBGC). Note: “go” memos are also called “charging letters.” See also “General Council Memorandum,” below.

Decisions: Decisions of the National Labor Relations Board are published in NLRB Decisions. Decisions are searchable and browseable by clicking on the NLRB’s Cases & Decisions page and the Case Search. Published decisions are available starting 1936 (Volume 1). Unpublished decisions are available starting 2011.

NLRB decisions are searchable back to 1935 on Lexis (LABOR;NLRB) and Westlaw(FLB-NLRB). You can pull NLRB decisions from Lexis using the format “295 nlrb no 26”; for Westlaw use “295 nlrb 26.” You also can Shepardize and/or KeyCite NLRB decisions. Decisions are also searchable in the Labor and Employment Law Resource Center on BNA.com and CCH Intelliconnect, but I am not sure how far back and whether they collection is complete or selective.

Decisions of NLRB Regional Directors are posted on the NLRB website under the pages for that specific regional office. ALJ decisions are posted on the NLRB website back to 1992. For older decisions, call the NLRB.

Decisions of the NLRB General Council’s office are available on Lexis (NLRB;BOARD or LABOR;BOARD to search both Decisions and Memorandums) and Westlaw back to 1980 Westlaw (FLB-NLRBGC).

Subject-Matter Index of Decisions: The NLRB posts a topical index of significant NLRB decisions (and related court decisions”) back to 1992 called CiteNet (“Classified Index – The Electronic Network”). The Labor and Employment Library on BNA.comprovides a more comprehensive index of labor and employment topics that includes NLRB decisions.

Filings: The LRP Report by Labor Research Partners provides daily alerts on new petitions filed with the NLRB as well as new Unfair Labor Practice (CA) cases. Some briefs, applications, docket sheets, etc. are available through the NLRB’s Case Search.

General Council Memorandums: NLRB General Council Memos are posted back to 1995 – plus 91-3 and 91-4 (http://www.nlrb.gov/Research/Memos/). They are searchable on Westlaw back to 1980 (FLB-NLRBGC) and, selectively on Lexis back even farther (LABOR;NLRBGC or LABOR;BOARD to search both Memorandums and Decisions). See also “Advice Memos,” above.

Operations-Management Memos from the Office of General Council are posted on the NLRB Web site (www.nlrb.gov/Research/Memos/). They may be searchable in the Lexis and/or Westlaw databases discussed above.

If you still can’t get what you need, call the NLRB Library (202-273-3720) or another office in the agency. If that doesn’t work either, you can file a FOIA request for the materials.

Introduction to National Labor Relations Board

National Labor Relations Board (NLRB), independent agency of the United States government. It was created by the National Labor Relations Act of 1935. Its powers, duties, and composition, as set forth in that act, were substantially altered by the amendatory Labor-Management Relations Act of 1947, which is more generally known as the Taft-Hartley Act.

The NLRB consists of five members, who are appointed by the president with the consent of the Senate for 5-year terms; the general counsel of the NLRB is also appointed by the president and serves a 4-year term. The board maintains 52 regional and subregional offices, under the supervision of the general counsel, in various cities of the U.S. and its possessions.

The board is empowered by the labor-relations act to prevent certain specified unfair labor practices by employers, labor organizations, and their agents; to decide whether the appropriate unit of employees for collective bargaining shall be the employer unit, craft unit, or plant unit; to conduct secret ballot elections among employees to choose a bargaining representative; and to determine whether the employees desire an agreement with the employer requiring membership in their labor organization as a condition of continued employment. In carrying out these aims, the NLRB may issue orders requiring employers, labor organizations, and their agents to cease and desist from unfair labor practices and to take affirmative action to effect the policies of the labor relations acts, including the reinstatement of employees with or without pay; it may certify the results of elections held by secret ballot among employees, and the names of employee representatives chosen by secret ballot; it may order and conduct hearings and investigations, issue subpoenas, administer oaths, and prescribe rules and regulations designed to carry out provisions of the act; it may petition any U.S. court of appeals for the enforcement of its orders; and it may petition a U.S. district court for an appropriate temporary injunction to prevent the continuation of any unfair labor practice.

Any person or labor organization may file with the NLRB a charge that an employer, labor organization, or the agents of either has engaged in an unfair labor practice affecting interstate commerce.

Any employee, group of employees, or individual or labor organization acting in their behalf, or any employer who has been requested to recognize any individual or labor organization as the employee representative, may petition the NLRB to investigate and certify a representative of employees for the purpose of collective bargaining. A petition for decertification of a representative previously certified or currently being recognized by an employer may be filed with the NLRB by any employee, group of employees, or any individual or labor organization acting on their behalf. These persons and groups may also petition the NLRB for a secret-ballot election to determine whether or not the employees desire to authorize their representative to negotiate a union-shop agreement.

After investigating and finding merit to charges alleging the commission of unfair labor practices, NLRB regional offices work with the parties to achieve a voluntary settlement to remedy the alleged violation. Failing that, trials are conducted in public hearings before NLRB administrative law judges. Upon the evidence produced at the hearing, the judge issues a decision containing findings of fact, conclusions, and a recommended order, which takes effect as an order of the NLRB unless it is appealed to the board by one or more of the parties within 20 days. In cases involving employee representation decided by an NLRB regional director, appeal from that action may be taken on limited grounds to the board. Any aggrieved party may obtain a review of an NLRB order in an unfair labor practice case in a federal court of appeals.” (1)

Activities of the National Labor Relations Board

The National Labor Relations Board has two principal functions: preventing and remedying unfair
labor practices by employers and labor organizations or their agents and
conducting secret ballot elections among employees in appropriate collectivebargaining
units to determine whether or not they desire to be represented by
a labor organization in bargaining with employers about their wages, hours, and
working conditions. The agency also conducts secret ballot elections among
employees who have been covered by a union-security agreement to determine
whether or not they wish to revoke their union’s authority to make such
agreements. In jurisdictional disputes between two or more unions, the Board
determines which competing group of workers is entitled to perform the work
involved.

The regional directors and their staffs process representation, unfair labor
practice, and jurisdictional dispute cases. They issue complaints in unfair
labor practice cases, seek settlement of unfair labor practice charges, obtain
compliance with Board orders and court judgments, and petition district courts for
injunctions to prevent or remedy unfair labor practices. The regional directors
conduct hearings in representation cases, hold elections pursuant to the agreement
of the parties or the decision-making authority delegated to them by the Board
or pursuant to Board directions, and issue certifications of representatives
when unions win or certify the results when unions lose employee elections.

They process petitions for bargaining unit clarification, for amendment of
certification, and for rescission of a labor organization’s authority to make
a union-shop agreement. They also conduct national emergency employee
referendums.

Administrative law judges conduct hearings in unfair labor practice cases,
make findings of fact and conclusions of law, and recommend remedies for
violations found. Their decisions can be appealed to the Board for a final agencydetermination. The Board’s decisions are subject to review in the U.S. courts ofappeals. For a complete list of National Labor Relations Board field offices, visit nlrb.gov/about_us/locating_our_offices”>www.nlrb.gov/about_us/locating_our_offices.

Tempoary Workers

by Thomas Brom (2010)

The Bureau of Labor Statistics reported that the staffing industry supplied more than 40,000 new jobs in March, marking its sixth consecutive month of growth. Contributing to the trend were the usual pattern of temp hiring after a recession, a drop in organized labor to just 7.2 percent of the private workforce, and years of employer-friendly rulings from a Republican-controlled majority at the National Labor Relations Board (NLRB).

But there’s many a slip between prediction and reality. By early 2010 the five-member NLRB had been reduced to just two members – one Democrat and one Republican. With his board nominees stymied by Congress, Obama in late March made two recess appointments: labor lawyers Craig Becker and Mark Pearce. Democrats, who now dominate the panel 3?1, will have it all to themselves in August, when the terms of Republican Peter Schaumber and board general counsel Ronald Meisburg expire.

“You will have the most pro-labor board since 1947,” says employment lawyer Michael J. Lotito, a partner at Jackson Lewis. “Case after case may be overthrown. If labor doesn’t celebrate this Labor Day, it never will.”

The dramatic shift in board members should produce a series of policy reversals at the agency made possible by several U.S. Supreme Court rulings. Decades ago the Court promoted deference to administrative agencies when they interpret statutory language, if it determines that Congress was ambiguous or silent on the point at issue (Chev-ron U.S.A. Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837 (1984)). A more recent ruling permits agencies to change course if an alternative interpretation of the statute is reasonable (National Cable & Telecomm. Ass’n v. Brand X Internet Serv., 545 U.S. 967 (2005)).

For labor lawyers, the priorities for reinterpretation include union recognition by card-check, defining which supervisory positions are excluded from bargaining units, and the right of nonunion employees to be represented in disciplinary hearings. The most nettlesome staffing industry case is Oakwood Care Center (343 NLRB 659 (2004)), which reinterpreted an earlier, Clinton-era ruling in M.B. Sturgis (331 NLRB 1298 (2000)).

Sturgis had permitted staffing agencies’ temps to organize with permanent workers on the job site if the two groups could show a “community of interest.” But Sturgis coincided with the election of President George W. Bush, who appointed employer-friendly members to the NLRB. The new majority held in Oakwood that under the joint employer doctrine, unions had to win the consent of both the supplier and user employers to force multiemployer bargaining.
That ruling effectively killed organizing at job sites that have a mix of temporary and permanent employees.

To its credit, “The Emerging New Workforce” predicted a return to Sturgis. “Anticipate that the Obama-appointed NLRB may again include contingent workers in bargaining units with regular employees,” Mathiason wrote. Now, he says in an interview, “I would guarantee a return to Sturgis.” But Mathiason adds, “It’s a historical fiction to pretend the employee provider and buyer are independent. I believe joint employer liability should be contractual – accept that both parties are employers, and then apportion the responsibility.”

A return to Sturgis, however, doesn’t address underlying issues related to contingency labor. Independent contractors, for instance, work entirely outside of employee protections. Whether other contingency workers – direct-hire temps, staffing agency employees, leased employees, or in-home workers – are “employees” protected by labor law varies by statute. The National Labor Relations Act, ERISA, and OSHA, for instance, use a 13-factor “agency test” to define covered individuals. The Fair Labor Standards Act uses a broader economic realities test, and the federal anti-discrimination statutes use a hybrid test. Other determinants are contractual relationships between supplier and user employers, and the organization of the job site.

“The NLRB only governs certain employees,” says David A. Rosenfeld, a labor lawyer at Alameda’s Weinberg Roger & Rosenfeld and an adjunct professor at UC Berkeley’s School of Law. “So you have to look to legislative solutions. The core issue for us is the right to organize.”

With so much at stake before the new NLRB, advocates for both management and labor already are spinning out alternative scenarios. “Obama might approach the Republicans and agree to appoint two pro-management members in return for five-year appointments for Becker and Pearce,” says Don Lee, a partner in the Atlanta office of Ford & Harrison who writes the firm’s NLRB client alerts. “The downside for management is that those two would be on the board longer.”

Another possibility for employers would be to accept a 3?0 labor majority, but file repeated recusal motions against Becker because of his past positions at the Service Employees International Union and the AFL-CIO. Within days of Becker’s recess appointment, the National Right to Work Legal Defense Foundation had filed 12 such motions. “You can’t require Becker to recuse himself,” says Lynn R. Faris, a labor lawyer with Leonard Carder in Oakland.
“But you could ask him, as former assistant general counsel to the AFL-CIO, to recuse himself in every case involving the federation.”

If Becker agreed to withdraw in such cases, 2-0 decisions could then be challenged as nonbinding, for lack of a quorum. At least 60 challenges to the validity of two-member rulings already have been filed in the appellate courts; in November, the U.S. Supreme Court granted cert to resolve the matter (New Process Steel, LP v. NLRB, pending as No. 08-1457). The danger, says Lee, is that Obama could respond by making two more recess appointments to the board, creating a 5?0 labor majority.

Jackson Lewis’s Lotito is unhappy about any such prospects. “This is labor law reform by a thousand cuts,” he says. “The board will find that people are employees, eligible for representation in whatever role they are employed, and whatever they are called. But enhancing union interference in your workforce does not promote job growth. What management needs most is flexibility.”

NLRB Rule on Unionizing

Judge James Boasberg of the Washington, D.C. federal district rebuked, in May 2012, a National Relations Board panel for approving without a quorum a new rule that shortens the time between filing for a union election and the actual voting.

Without its lone Republican member, the panel had voted (2 to 0) to implement the rule starting April 30 2013. Management lawyers oppose the new rule, arguing that it does not give businesses enough time to lobby employees against unionizing.

Concept of National Labor Relations Board (NLRB) in Labor Law

In this context, a definition of National Labor Relations Board (NLRB) is offered here: Agency created by the National Labor Relations Act, 1935, and continued through subsequent amendment, whose functions are to define the appropriate bargaining units, to hold elections, to determine whether a majority of workers want to be represented by a specific union or no union, to certify unions to represent employees, to interpret and apply the Act’s provisions prohibiting certain employer and union unfair practices, and otherwise to administer the provisions of the Act.

Resources

Notes and References

Information about National Labor Relations Board in the Encarta Online Encyclopedia

National Labor Relations Board (nlrb) in the International Business Landscape

Definition of National Labor Relations Board (nlrb) in the context of U.S. international business and public trade policy: Federal agency that administers the nation’s laws relating to labor relations in the private and nonprofit sectors.

National Labor Relations Board