The
National Labor Relations Board (
NLRB) is an
independent agency of the United States governmentIndependent agencies of the United States federal government are those agencies that exist outside of the federal executive departments...
charged with conducting
electionAn election is a formal decision-making process by which a population chooses an individual to hold public office. Elections have been the usual mechanism by which modern representative democracy operates since the 17th century. Elections may fill offices in the legislature, sometimes in the...
s for
labor unionA trade union, trades union or labor union is an organization of workers that have banded together to achieve common goals such as better working conditions. The trade union, through its leadership, bargains with the employer on behalf of union members and negotiates labour contracts with...
representation and with investigating and remedying
unfair labor practiceIn United States labor law, the term unfair labor practice refers to certain actions taken by employers or unions that violate the National Labor Relations Act and other legislation...
s. Unfair labor practices may involve union-related situations or instances of
protected concerted activityProtected Concerted Activity is a legal term used in labor policy to define employee protection against employer retaliation. It is a legal principle under the subject of the freedom of association. It defines the activities workers may partake in without fear of employer retaliation...
. The NLRB is governed by a five-person board and a
General CounselA general counsel is the chief lawyer of a legal department, usually in a corporation or government department. The term is most used in the United States...
, all of whom are appointed by the
PresidentThe President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
with the
consentAdvice and consent is an English phrase frequently used in enacting formulae of bills and in other legal or constitutional contexts, describing a situation in which the executive branch of a government enacts something previously approved of by the legislative branch.-General:The expression is...
of the
SenateThe United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
. Board members are appointed to five-year terms and the General Counsel is appointed to a four-year term. The General Counsel acts as a prosecutor and the Board acts as an appellate judicial body from decisions of
administrative law judgeAn administrative law judge in the United States is an official who presides at an administrative trial-type hearing to resolve a dispute between a government agency and someone affected by a decision of that agency. The ALJ is usually the initial trier of fact and decision maker...
s.
History and Structure
The NLRB was established by Executive Order 6763 on June 29, 1934. Its first Chair was
J. Warren MaddenJ. Warren Madden, born Joseph Warren Madden, was an American lawyer, judge, civil servant, and educator. He served on the United States Court of Claims and was the first Chair of the National Labor Relations Board...
.
A predecessor organization, the
National Labor BoardThe National Labor Board was an independent agency of the United States Government established on August 5, 1933 to handle labor disputes arising under the National Industrial Recovery Act .-Establishment, structure and procedures:...
, was established by the
National Industrial Recovery ActThe National Industrial Recovery Act , officially known as the Act of June 16, 1933 The National Industrial Recovery Act (NIRA), officially known as the Act of June 16, 1933 The National Industrial Recovery Act (NIRA), officially known as the Act of June 16, 1933 (Ch. 90, 48 Stat. 195, formerly...
in 1933, an act that was subsequently
struck downJudicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
by the Supreme Court.
Structure
In 1947, the Taft–Hartley Act created a formal administrative distinction between the Board and the General Counsel of the NLRB. In broad terms, the General Counsel is responsible for investigating and prosecuting
unfair labor practiceIn United States labor law, the term unfair labor practice refers to certain actions taken by employers or unions that violate the National Labor Relations Act and other legislation...
claims; the Board, on the other hand, is the adjudicative body that decides the unfair labor practice cases brought to it. While the General Counsel has limited independence to argue for a change in the law in presenting cases to the Board, once the Board has decided the issue it is the General Counsel's responsibility to uphold the Board's decision, even if it is contrary to the position he advocated when presenting the case to the Board. The Board is also responsible for the administration of the Act's provisions governing the holding of elections and resolution of jurisdictional disputes.
The General Counsel oversees four divisions: the Division of Operations Management, the Division of Administration, the Division of Advice, and the Division of Enforcement Litigation.
The Board has more than thirty regional offices. The regional offices conduct elections, investigate unfair labor practice charges, and make the initial determination on those charges (whether to dismiss, settle, or issue complaints). The Board has jurisdiction to hold elections and prosecute violations of the Act in
Puerto RicoPuerto Rico , officially the Commonwealth of Puerto Rico , is an unincorporated territory of the United States, located in the northeastern Caribbean, east of the Dominican Republic and west of both the United States Virgin Islands and the British Virgin Islands.Puerto Rico comprises an...
and
American SamoaAmerican Samoa is an unincorporated territory of the United States located in the South Pacific Ocean, southeast of the sovereign state of Samoa...
.
Jurisdiction
The Board's
jurisdictionJurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
is limited to
private sectorIn economics, the private sector is that part of the economy, sometimes referred to as the citizen sector, which is run by private individuals or groups, usually as a means of enterprise for profit, and is not controlled by the state...
employers and the
United States Postal ServiceThe United States Postal Service is an independent agency of the United States government responsible for providing postal service in the United States...
; other than Postal Service employees, it has no authority over labor relations disputes involving governmental, railroad and
airlineAn airline provides air transport services for traveling passengers and freight. Airlines lease or own their aircraft with which to supply these services and may form partnerships or alliances with other airlines for mutual benefit...
employees covered by the Adamson Railway Labor Act, or agricultural employees. On the other hand, in those parts of the private sector its jurisdictional standards are low enough to reach almost all employers whose business has any appreciable impact on interstate commerce.
Processing of charges
Charges are filed by parties against unions or employers with the appropriate regional office. The regional office will investigate the complaint. If a violation is believed to exist, the region will take the case before an
Administrative Law JudgeAn administrative law judge in the United States is an official who presides at an administrative trial-type hearing to resolve a dispute between a government agency and someone affected by a decision of that agency. The ALJ is usually the initial trier of fact and decision maker...
who will conduct a hearing. The decision of the Administrative Law Judge may be reviewed by the five member Board. Board decisions are reviewable by
United States Courts of AppealsThe United States courts of appeals are the intermediate appellate courts of the United States federal court system...
. The Board's decisions are not self-executing: it must seek court enforcement in order to force a recalcitrant party to comply with its orders. (For greater detail on this process see the entry for
unfair labor practiceIn United States labor law, the term unfair labor practice refers to certain actions taken by employers or unions that violate the National Labor Relations Act and other legislation...
).
Quorum issues
From December 2007 until March 2009, the five-member Board had only two members, creating a legal controversy. Three members' terms expired in December 2007, leaving the NLRB with just two members—Chair Wilma B. Liebman and Member Peter Schaumber. President George W. Bush refused to make some nominations to the Board and Senate
DemocratsThe Democratic Party is one of two major contemporary political parties in the United States, along with the Republican Party. The party's socially liberal and progressive platform is largely considered center-left in the U.S. political spectrum. The party has the lengthiest record of continuous...
refused to confirm those he did. Just before the Board lost a quorum, the five Members agreed to delegate their authority to a three-person panel (as provided for by the
National Labor Relations ActThe National Labor Relations Act or Wagner Act , is a 1935 United States federal law that limits the means with which employers may react to workers in the private sector who create labor unions , engage in collective bargaining, and take part in strikes and other forms of concerted activity in...
). Only two of the members of the panel (Liebman and Schaumber) would remain on the Board, but the Board concluded that these two members constituted a
quorumA quorum is the minimum number of members of a deliberative assembly necessary to conduct the business of that group...
of the panel and thus could make decisions on behalf of the entire Board. Liebman and Schaumber informally agreed to decide only those cases which were noncontroversial (in their view) and on which they could agree, and issued more than 400 decisions between January 2008 and September 2009.
Meanwhile, the U.S. Courts of Appeals for the
FirstThe United States Court of Appeals for the First Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* District of Maine* District of Massachusetts...
,
SecondThe United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals...
, and
SeventhThe United States Court of Appeals for the Seventh Circuit is a federal court with appellate jurisdiction over the courts in the following districts:* Central District of Illinois* Northern District of Illinois...
Circuits upheld the two-member NLRB's authority to decide cases, while the
D.C. Circuit Court of AppealsThe United States Court of Appeals for the District of Columbia Circuit known informally as the D.C. Circuit, is the federal appellate court for the U.S. District Court for the District of Columbia. Appeals from the D.C. Circuit, as with all the U.S. Courts of Appeals, are heard on a...
did not. In September 2009, the
Justice DepartmentThe United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...
asked the
U.S. Supreme CourtThe Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
to immediately hear arguments concerning the dispute, given the high stakes involved. The Supreme Court granted
certiorariCertiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
in October and agreed to decide the issue. In June 2010, the Supreme Court ruled in
New Process Steel, L. P. v. NLRBNew Process Steel v. NLRB, 130 S. Ct. 2635 , was a case before the United States Supreme Court holding that the National Labor Relations Board cannot make decisions without a quorum.-Background:...
that the two-member Board had no authority to issue decisions, invalidating the rulings made by Liebman and Schaumber.
Board Members
In April 2009, President Obama nominated Craig Becker (Associate General Counsel of the
Service Employees International UnionService Employees International Union is a labor union representing about 1.8 million workers in over 100 occupations in the United States , and Canada...
), Mark Gaston Pearce (a member on the Industrial Board of Appeals, an agency of the New York State Department of Labor), and Brian Hayes (Republican Labor Policy Director for the
Senate Committee on Health, Education, Labor and PensionsThe United States Senate Committee on Health, Education, Labor, and Pensions generally considers matters relating to health, education, labor, and pensions...
) to fill the three empty seats on the NLRB.
Becker's nomination appeared to fail on February 8, 2010, after Republican Senators (led by
John McCainJohn Sidney McCain III is the senior United States Senator from Arizona. He was the Republican nominee for president in the 2008 United States election....
) threatened to filibuster his nomination. President Obama said he would consider making
recess appointmentA recess appointment is the appointment, by the President of the United States, of a senior federal official while the U.S. Senate is in recess. The U.S. Constitution requires that the most senior federal officers must be confirmed by the Senate before assuming office, but while the Senate is in...
s to the NLRB due to the Senate's failure to move on any of the three nominations. On March 27, 2010 Obama recess appointed Becker and Pearce. On June 22, 2010, a
voice voteA voice vote is a voting method used by deliberative assemblies in which a vote is taken on a topic or motion by responding verbally....
in the Senate confirmed Pearce to a full term, allowing him to serve until August 27, 2013. The same day, the Senate confirmed Republican nominee Brian Hayes of Massachusetts by voice vote. Hayes' term will end on December 16, 2012. Becker's term, as a recess appointee, will end on December 31, 2011. Effective August 28, 2011, Pearce was named chairman to replace Democrat Wilma Liebman, whose term had expired.
General Counsel
The General Counsel, appointed by the President to a 4-year term, 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.
Lafe SolomonLafe E. Solomon was named the National Labor Relations Board 's Acting General Counsel on June 21, 2010 by President Barack Obama. His nomination to serve as general counsel was sent to the U.S. Senate on January 5, 2011. His nomination is still pending and has not come before the Senate for a...
was named Acting General Counsel on June 21, 2010. His nomination to serve as General Counsel was sent to the U.S. Senate on January 5, 2011. His nomination is still pending and has not come before the Senate for a vote.
See also
- List of Chairs of the National Labor Relations Board
- NLRB election procedures
The National Labor Relations Board, an agency within the United States government, was created in 1935 as part of the National Labor Relations Act. Among the NLRB’s chief responsibilities is the holding of elections to permit employees to vote whether they wish to be represented by a particular...
- subpoena duces tecum
A subpoena duces tecum is a court summons ordering a named party to appear before the court and produce documents or other tangible evidence for use at a hearing or trial....
- subpoena ad testificandum
A subpoena ad testificandum is a court summons to appear and give oral testimony for use at a hearing or trial. The use of a writ for purposes of compelling testimony originated in the Ecclesiastical Courts of the High Middle Ages, especially in England...
- Union organizer
A union organizer is a specific type of trade union member or an appointed union official. A majority of unions appoint rather than elect their organizers....