The National Labor Relations Board, also called “NLRB” and “the Board,” is the federal government agency responsible for enforcing the National Labor Relations Act. The NLRA has quasi-judicial powers, which means it can decide cases at administrative hearings, but its decisions are subject to review by Federal District Courts (whose decisions are subject to review by Federal Circuit Courts, and ultimately the Supreme Court of the United States). In addition to over 30 Regional Offices, the NLRB has five Members in Washington D.C. who are tasked with interpreting the National Labor Relations Act.
The five Board Members are appointed by the President of the United States to a staggered five year term. The Senate must appoint the President’s nomination – something that has not been happening the past few years. In theory, one Board Members is replaced each year and a Board Member of the sitting President’s political party rolls onto the Board. Because of the lack of Senate confirmations in recent years, President Obama has appointed several Board Members, but only a few have been confirmed.
The NLRB is also responsible for conducting union organizing and decertification elections. Initially, the Board determines whether the election or decertification petition is valid – authentically signed by at least 30% of the bargaining unit, and acts as a judge to any disputes regarding those petitions. The NLRB then set the election date and works with the parties to determine the proper location of the election, as well as who is eligible to vote. The Board then counts the votes, rules on any challenges, and declares a winner.
The Board also receives and rules on a lot of unfair labor practice charges, like close to 30,000 charges per year. Unions are quick to file refusal to bargain or surface level bargaining charges against employers during the collective bargaining process. In fact, these have been the leading topics of charges in recent years. The NLRB investigates the charges, receives evidence both sides, and determines whether to dismiss the charge or file a Complaint against the allegedly offending party.
If a Complaint is filed, the NLRB and the defendant (call the Respondent) can settle the dispute or have a formal hearing before an Administrative Law Judge (ALJ) on the Complaint. The ALJ can only institute “make whole” remedies, like reinstatement and back pay for discharged workers, and of course, require the employer to post a notice – typically for 60 days – saying it won’t violate the law again.
The NLRB has recently begun seeking 10(j) injunctions like they’re going out of style – actually, to the Board they’re coming into style. A 10(j) injunction is where the NLRB asks the court to temporarily restore the status quo while the parties litigate a Board Complaint. 10(j) injunctions are usually sought to require a party to return to the bargaining table, to reinstate a discharged employee, or halt subcontracting union jobs during while the unfair labor practice charge is litigated.
Overall, I enjoy working with the Regional Directors and Board Agents that I encounter on a daily basis. Their job is to uphold and enforce the National Labor Relations Act, which means they are to encourage unionization and collective bargaining. I understand and empathize with employers who have a difficult time dealing with the NLRB and who always feel like the NLRB is against them. In reality, the NLRB isn’t so much anti-employer as it is pro-union.