The National Labor Relations Board is a federal agency charged with enforcing and interpreting the National Labor Relations Act (NLRA), which established the rights of employees to join or refrain from joining a union and bargain collectively. The NLRA governs relations between most private businesses and unions.
Under the Obama administration the NLRB issued rules and decisions that contradicted decades of well-established precedent and upended labor relations without regard to the negative impact those actions would have on employees, employers, and the economy. While the Trump administration walked back some of these disastrous policies, the Biden administration has pledged to return to the Obama-era tactics.
The National Labor Relations Act was enacted in 1935 in order to establish the rights of employees to join or refrain from joining a union. The Act establishes the rules and procedures for union organizing campaigns and elections, and it provides clarification for employers on how to avoid obstructing that process.
The Act also governs relations between unions and private businesses. If one party violates the Act and commits an Unfair Labor Practice, or ULP, the affected party can file a charge with the Board. ULP charges are then investigated and prosecuted by the NLRB’s General Counsel.
The General Counsel (GC), who is appointed by the president to a four-year term, acts independently from the NLRB. The GC is responsible for investigating and prosecuting ULP cases and overseeing the NLRB field offices in the processing of cases. He or she decides when to prosecute, settle, or dismiss a ULP charge. Should the GC want to prosecute a case, he or she brings that case before an Administrative Law Judge, or ALJ.
ALJs docket, hear, settle, and decide ULP charges nationwide. They hear cases brought to them by the General Counsel. Should either party in a case be unsatisfied with an ALJ decision, the case can be appealed to the NLRB.
The Board is made up of five members who have been nominated by the president and confirmed by the Senate. Each member is appointed to a five-year term. Generally speaking, three members are from the president’s party, and two are from the opposition party. While the Board often operates with less than five members, a quorum of three is needed to issue any decision.
The Board is responsible for interpreting the NLRA through adjudication by reviewing ULP decisions issued by ALJs. These decisions can be appealed to federal courts if either party is not satisfied with the result.
The Board’s representation section conducts secret ballot elections to determine whether or not employees want to be represented by a union. Disputes over elections, known as R cases, are settled by regional directors and may be appealed to the Board. The Board’s Representation decisions cannot be appealed directly to federal courts.
While the Board has broad rulemaking authority, it has only promulgated a handful of substantive rules in its nearly 100-year history.