National Labor Relations Board (NLRB)

Overview of the National Labor Relations Board (NLRB)

National Labor Relations Board (NLRB) Powers: The NLRB has the power to investigate unfair labor practice charges and order employers to follow “make-whole” remedies, such as reinstatement and/or back pay for workers who were wrongfully discharged. The NLRB can also pursue injunction orders from federal courts. For example, an injunction might, among other things, require a party to return to bargaining or to reinstate unlawfully discharged employees. The NLRB can also direct elections and conduct investigations of unfair labor practices only in cases involving labor disputes that affect, or would affect, commerce.

“Commerce” includes trade, traffic, transportation or communication within the District of Columbia or any territory of the United States, between any states or territories or between two points in the same state but through any other state, territory, the District of Columbia or a foreign country. Because the effect on commerce has been very broadly interpreted, the authority of the NLRB could extend to all but purely local enterprises. For example, the operations of a manufacturing company that sells its goods to wholesalers in its own state affects commerce if the wholesalers ship to buyers in other states. The effects of a labor dispute involving the manufacturing company would be felt in other states and the labor dispute would, therefore, “affect” commerce.

The NLRB has two major components — the five-member NLRB and the Office of General Counsel (OGC). The Board oversees contested matters in either representation or unfair labor practice cases. The OGC is independent from the Board and is responsible for the investigation and prosecution of unfair labor practice cases and for the general supervision of the NLRB field offices in processing cases.

NLRB Rulemaking Powers: The NLRB has the authority to engage in administrative “rulemaking.” In its 75-year history, the Board has made little use of its rulemaking authority; instead, formulating law and policy primarily through adjudication. Since 2012, however, the Board has taken a more aggressive stance regarding rulemaking, and enacted two rules, the notice posting rule and the “ambush election” rule. However, each of these rules was stricken down by federal courts.

The Notice Posting Rule: On August 30, 2011, the NLRB issued a rule that required employers, both union and nonunion, to post an 11’’ x 17’’ notice informing employees of their union rights under the NLRA. The rule required employers to post the notice in a “conspicuous place where [it is] readily seen by employees, including all places where notices to employees concerning personnel rules or policies are customarily posted.” The rule was due to take effect on April 30, 2012. However, after two conflicting federal district court opinions on the validity of the notice posting rule, on April 17, 2012, the U.S. Court of Appeals for the District of Columbia temporarily enjoined the required posting of employee rights. Since then, two other Courts of Appeal have ruled that the notice posting rule is invalid. On January 6, 2014, the NLRB issued a statement indicating that it had decided not to seek Supreme Court review of the U.S. Court of Appeals decisions invalidating the NLRB’s notice posting rule. The poster is not required (although it can be displayed voluntarily).

The “Ambush Election” Rule: In 2011, the NLRB proposed major changes to its election procedures in order to expedite the representation and election process. These changes were often referred to as the “ambush election” rule. The NLRB adopted the proposed changes, and the final rule took effect on April 30, 2012. However, in May of 2012, a federal district court for the District of Columbia held that the NLRB lacked the authority to issue the rule because it was not adopted by a quorum of the NLRB members. The NLRB dismissed its appeal but has since re-proposed these rules. An employer that finds itself facing a union organizing effort, or who otherwise comes to the attention of the NLRB, should seek assistance from counsel experienced in labor relations matters. The upshot for employers is that while the “Ambush Election” rule is not currently effective, nothing appears to prevent a properly constituted quorum of the Board from voting to adopt the rule if it has the desire to do so.

Rights of Employees: The NLRA provides covered employees certain rights to join together to improve their wages and working conditions, with or without a union. Two sections of the NLRA create far-reaching protections for employees in non-union workplaces: Section 7 sets forth the rights of employees, and Section 8 defines unfair labor practices, which can be committed by either employers or labor organizations. Section 7 of the NLRA sets forth the principal rights of employees:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3).

Examples of employee rights under Section 7 of the NLRA include:

Forming or attempting to form a union among the employees of a company
Joining a union, whether the union is recognized by the employer or not
Assisting a union to organize the employees of an employer
Engaging in concerted activity, such as picketing or striking, to secure better working conditions
Refraining from activity on behalf of a union
Taking advantage of the NLRB’s processes
Non-union employees coming together to demand an increase in wages or changes to work rules or working conditions

Section 8 of the NLRA covers unfair labor practices committed by either employers or labor organizations. Under Section 8(a), employers are prohibited from committing the unfair labor practices of interfering with, restraining or coercing employees from taking any actions related to the Section 7 guarantee rights.

Power to Investigate, Issue Subpoenas and Obtain Court Orders: To pursue an unfair labor practice charge, the charging party must file and serve its charge within six months after the unfair labor practice occurs. The party files the charge with the relevant NLRB Regional Office and serves copies of the charge on each person against whom the charge is made. All charges filed with the regional office are investigated, as are petitions for representation elections. The Board and/or its agents may:

Examine and copy “any evidence of any person being investigated or proceeded against that relates to any matter under investigation or in question”
Issue subpoenas on the application of any party to the proceeding requiring the attendance and testimony of witnesses or the production of any evidence
Administer oaths and affirmations, examine witnesses and receive evidence
Obtain a court order to compel the production of evidence or the giving of testimony

NLRA Power: Remedies, Not Penalties: The NLRA is not a criminal statute. It is intended to prevent and remedy unfair labor practices, not to punish the person responsible for them. The Board is authorized not only to issue a cease-and-desist order, but “to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of [the] Act.”

The Board’s order is designed to eliminate the unfair labor practice and undo the effects of the violation, to the extent possible. The Board enjoys considerable discretion in determining the remedy for any given situation. Ordinarily, its determination regarding any particular unfair labor practice will follow a standard form designed to remedy that unfair labor practice. But the Board can, and often does, change the standard order to meet the needs of the case. In a typical affirmative action, the Board may order an employer who engaged in unfair labor practices to:

Disband an employer-dominated union
Offer certain named individuals immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions without prejudice to their seniority and other rights and privileges, with back pay and interest
On request, bargain collectively with a certain union as the exclusive representative of the employees in a certain described unit and sign a written agreement if an understanding is reached

Similarly, the NLRB can also order a union who engaged in unfair labor practices to:

Notify the employer and the employees that the union has no objection to reinstatement of certain employees or employment of certain applicants whose discriminatory discharge or denial of employment was caused by the union
Refund dues or fees illegally collected, plus interest
On request, bargain collectively with a certain employer and sign a written agreement if one is reached

The Board’s order usually includes a direction to the employer, the union or both, requiring them to post notices in the employer’s plant or the union’s office notifying the employees that unfair labor practices will be ceased and informing the employees of any affirmative action being undertaken to remedy the violation.

Special Proceedings: Certain types of cases require special proceedings, which include the determination of jurisdictional disputes and injunction proceedings.

Proceedings in Jurisdictional Disputes: Section 8(b)(4)(D) of the NLRA prohibits unions from striking or inducing a strike to compel an employer to assign particular work to employees in one union, trade or craft rather than another. For a jurisdictional dispute to exist, real competition must exist between unions or between groups of employees for certain work. Whenever it is charged that any person engaged in an unfair labor practice in violation of Section 8(b)(4)(D), the Board must hear and determine the dispute out of which the unfair labor practice arises. Section 10(k) provides an opportunity for the parties to adjust the dispute during a 10-day period after notice of the Section 8(b)(4)(D) charge has been served. At the end of this period, if the parties have not submitted satisfactory evidence to the Board that they adjusted or agreed on a method of adjusting the dispute, the Board is “empowered and directed” to determine which of the competing groups is entitled to have the work.

Investigation Priority: Section 10(l) provides that, whenever a charge is filed alleging a violation of certain sections of the NLRA relating to boycotts, picketing and work stoppages, the preliminary investigation of the charge must receive priority over all other types of cases in the regional office where it is filed. The unfair labor practices subject to this priority concerning the investigation are generally those involving secondary boycotts, recognition picketing and hot cargo agreements. Section 10(m) also requires that priority be given to charges alleging violations of Section 8(a)(3), which involves the prohibition against employer discrimination to encourage or discourage membership in a union; and Section 8(b)(2), which forbids unions to cause or attempt to cause such discrimination.

Injunction Proceedings: If the preliminary investigation of any of the priority cases shows reasonable cause to believe that the charge is true and that a complaint should issue, Section 10(l) requires the Board to petition a U.S. district court for an injunction pending the final adjudication of the Board. Furthermore, Section 10(j) gives the Board discretion to petition a federal district court for an injunction to temporarily prevent any unfair labor practice after a complaint has been issued, and to restore the status quo pending the full review of the case by the Board.

Court Review of Board Orders: If an employer or a union fails to comply with a Board order, Section 10(e) empowers the Board to petition the Court of Appeal for a court decree enforcing the order and enjoining conduct that the Board finds to be unlawful. Section 10(l) provides that any person aggrieved by a final order of the Board may obtain a review of such order in any appropriate federal Circuit Court of Appeals.

When the Court of Appeal hears a petition concerning a Board order, the court may enforce the order, remand it to the Board for reconsideration, change it or set it aside entirely. If the Court of Appeal issues a judgment enforcing the Board order, failure to comply may be punishable by fine or imprisonment for contempt of court. In some cases, the U.S. Supreme Court may be asked to review the decision of a Circuit Court of Appeal, particularly when a conflict exists in the views of different courts on the same important problem.