National Labor Relations Board (NLRB)

Scope

Generally applying to all employers involved in interstate commerce — other than airlines, railroads, agriculture, and government — the Act implements the national labor policy of assuring free choice and encouraging collective bargaining as a means of maintaining industrial peace. Through the years, Congress has amended the Act and the Board and courts have developed a body of law drawn from the statute.

Regulatory citations

• None

Key definitions

• Key definitions

Summary of requirements

The agency has two major, separate components.

• The Board itself has five Members and primarily acts as a quasi-judicial body in deciding cases on the basis of formal records in administrative proceedings. Board Members are appointed by the President to five-year terms, with Senate consent, the term of one Member expiring each year.
• The General Counsel, appointed by the President to a four-year term with Senate consent, 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 the processing of cases. Each Regional Office is headed by a Regional Director who is responsible for making the initial determination in cases arising within the geographical area served by the region.

What does the NLRB do?

In its statutory assignment, the NLRB has two principal functions:

1. To determine, through [secret-ballot elections,] the free democratic choice by employees whether they wish to be represented by a union in dealing with their employers and if so, by which union; and
2. To prevent and remedy unlawful acts, called [unfair labor practices,] by either employers or unions. The agency does not act on its own motion in either function. It processes only those charges of unfair labor practices and petitions for employee elections that are filed with the NLRB in one of its 51 Regional, Subregional, or Resident Offices.

How are unfair labor practice cases processed?

When an unfair labor practice (ULP) charge is filed, the appropriate field office conducts an investigation to determine whether there is reasonable cause to believe the Act has been violated. If the Regional Director determines that the charge lacks merit, it will be dismissed unless the charging party decides to withdraw the charge. A dismissal may be appealed to the General Counsel’s office in Washington, D.C.

If the Regional Director finds reasonable cause to believe a violation of the law has been committed, the region seeks a voluntary settlement to remedy the alleged violations. If these settlement efforts fail, a formal complaint is issued and the case goes to hearing before an NLRB Administrative Law Judge. The judge issues a written decision that may be appealed to the five-Member Board in Washington for a final agency determination. The Board’s decision is subject to review in a U.S. Court of Appeals.

Depending upon the nature of the case, the General Counsel’s goal is to complete investigations and, where further proceedings are warranted, issue complaints if settlement is not reached within 7 to 15 weeks from the filing of the charge. Of the total ULP charges filed each year [about 30,000]; approximately one-third are found to have merit of which over 90 percent are settled.

What authority does NLRB have to secure injunctive relief from a court?

Section 10(j) of the National Labor Relations Act empowers the NLRB to petition a federal district court for an injunction to temporarily prevent unfair labor practices by employers or unions and to restore the status quo, pending the full review of the case by the Board. In enacting this provision, Congress was concerned that delays inherent in the administrative processing of unfair labor practice charges, in certain instances, would frustrate the Act’s remedial objectives. In determining whether the use of Section 10(j) is appropriate in a particular case, the principal question is whether injunctive relief is necessary to preserve the Board’s ability to effectively remedy the unfair labor practice alleged, and whether the alleged violator would otherwise reap the benefits of its violation.

Under NLRB procedures, after deciding to issue an unfair labor practice complaint, the General Counsel may request authorization from the Board to seek injunctive relief. The Board votes on the General Counsel’s request and, if a majority votes to authorize injunctive proceedings, the General Counsel, through his Regional staff, files the case with an appropriate federal district court.

In addition, Section 10(l) of the Act requires the Board to seek a temporary federal court injunction against certain forms of union misconduct, principally involving “secondary boycotts” and “recognitional picketing.” Finally, under Section 10(e), the Board may ask a federal court of appeals to enjoin conduct that the Board has found to be unlawful.

Posting requirement

Notices. Effective April 30, 2012, all private employers, except for very small businesses, under the jurisdiction of the National Labor Relations Act must post a notice “Employee Rights under the National Labor Relations Act” where other workplace posters are usually posted.

• Size: The notice must be 11 x 17 inches, and be in the format, type size, and style prescribed by the NLRB. Employers must ensure the notice is not altered, defaced, covered by other material, or otherwise made unreadable.
• Online: If the employer customarily communicates about personnel rules or policies on an intranet or internet site, the employer must also post the notice on such site. This must be an exact copy or a link to the NLRB’s site. The link must read: “Employee Rights under the National Labor Relations Act.”
• Non-English notices. If 20 percent or more of the employer’s workforce speaks a language other than English, it must post a notice in the language employees speak. Employers will not need to translate the notice, however. If the NLRB does not have a notice available in an alternate language, the employer will not be liable for non-compliance with the posting requirement.
• Content and examples: The required notice will describe employee rights regarding organizing and bargaining collectively as well as engaging in other NLRA-protected activity. It will also provide examples of unlawful employer and union conduct, and instruct employees in how to contact the NLRB with questions or complaints.
• DOL poster: If the employer is a government contractor and already has the similar Department of Labor (DOL) poster up, the DOL poster is acceptable; the contractor will not need to have both the DOL poster and the NLRA poster.