An independent federal agency, the National Labor Relations Board (NLRB) was originally a product of the New Deal era, when Democrats led by President Franklin Roosevelt sought to strengthen the power of organized labor. The NLRB was created in 1935 to enforce the National Labor Relations Act, which reinforced the rights of employees to bargain collectively. The primary duties of the board over the years have been to ensure workers’ desires to form unions, and to prevent and remedy unfair labor practices, whether committed by labor organizations or businesses. But with the arrival of President Ronald Reagan in 1981, the NLRB ceased to be a diehard friend of labor, as Reagan’s appointees to the board brought about a decidedly pro-business shift. Similar complaints about the board’s conservative orientation arose during the administration of George W. Bush, as Democrats on Capitol Hill complained that the NLRB failed to support employees’ efforts to bargain collectively. Those complaints were echoed by NLRB board member Wilma Liebman, a Democrat first appointed by President Bill Clinton. On his first day in office, President Barack Obama elevated Liebman to chairman of the NLRB. Liebman took charge of an agency in turmoil, which at the time had three vacancies on its five-member board.
The National Industrial Recovery Act (NIRA) was enacted by Congress in June 1933 as part of President Franklin D. Roosevelt’s “New Deal,” which sought to assist the nation’s economic recovery during the Great Depression. The NIRA represented a unique experiment in U.S. economic history, as it sanctioned, supported, and in some cases, enforced an alliance of industries. Antitrust laws were suspended, and companies were required to write industry-wide “codes of fair competition” that effectively fixed prices and wages, established production quotas, and imposed restrictions on entry of other companies into the alliances. The act further called for industrial self-regulation and declared that codes of fair competition—for the protection of consumers, competitors, and employers—be drafted for various industries and subject to public hearings. Employees were given the right to organize and bargain collectively and could not be required, as a condition of employment, to join or refrain from joining a labor organization. Congress also created the National Labor Board in 1933 to enforce the collective bargaining provisions of the NIRA, although the board had little power to do so.
Around the same time as the passage of the NIRA, Roosevelt created the National Recovery Administration (NRA) by executive order. The NRA was empowered to make voluntary agreements dealing with hours of work, rates of pay, and the fixing of prices. From the beginning, the NRA came under attack from businesses, members of Congress and labor unions, and was challenged in court. In May 1935, in the case of the Schechter Poultry Corp. v. United States, the U.S. Supreme Court invalidated parts of the NIRA and nullified the National Labor Board.
In response to the court’s decision, Sen. Robert Wagner (D-New York) sponsored new legislation creating a more comprehensive labor law and a strong three-person NLRB. The National Labor Relations Act (NLRA), or Wagner Act, passed both houses easily and was signed on July 5, 1935. The new law and labor board sought to govern relations between unions, employees, and employers, and guarantee employees the right to organize and bargain collectively with their employers.
Again, opponents challenged the new labor law, but this time, the court upheld the Wagner Act and the NLRB in 1937. From then on, the NLRB took an active role in supporting and extending labor’s right to organize during the late 1930s.
The NLRB functioned during World War II, but labor relations were mainly handled by the National War Labor Board (NWLB), the mid-century version of which existed from 1942 until 1945. After the end of WWII, the NLRB’s role began to change. The Taft-Hartley Act of 1947 expanded the board from three members to five, but it also removed its power to prosecute, leaving it a solely judicial agency. And whereas the Wagner Act had focused exclusively on restraining unfair practices by employers, Taft-Hartley required the NLRB to examine unfair practices by unions as well. Also, the legislation required union chiefs to prove they were not Communists before the board could take action on any complaints filed against employers.
In 1959, Taft-Hartley was amended by the Landrum-Griffin Act (also known as the Labor-Management Reporting and Disclosure Act), which repealed the requirement that a union must file a non-Communist affidavit and a financial report in order to obtain a hearing before the NLRB. The act also gave the states permission to assume jurisdiction over cases that the NLRB declined, even when interstate commerce was involved. Organizational and recognition picketing (that is, picketing of companies where another union is already recognized) were made unlawful, and the NLRB general counsel was required to seek an injunction against such picketing if a violation was proved.
The NLRB’s power was subsequently extended to postal workers (1970) and private health care institutions (1974). The 1970s represented a high-water mark for the board, as its caseload shot up 71% during the decade.
But with the arrival of President Ronald Reagan in the White House in 1981, the power of organized labor and the NLRB began to wane. With pro-business appointees taking the helm of the board, the NLRB ceased being a friend of unions. Things improved somewhat during the 1990s under President Bill Clinton, but the NLRB has yet to recover and return to its zenith of importance and power that existed prior to the “Reagan Revolution.”
NLRB: 75 Years (NLRB)
Board Members Since 1935 (NLRB)
General Counsels Since 1935 (NLRB)
The National Labor Relations Board (NLRB) is an independent federal agency that administers the NLRA and other subsequent amendments that govern relations between unions and businesses. The NLRB is supposed to ensure the right of employees to organize and bargain collectively with their employers, or to freely refuse the right to participate in a union. The board oversees labor issues stemming from areas of interstate commerce, other than airlines, railroads, agriculture, and government. It does not act on its own accord, but rather in response to complaints filed either by unions or employers.
The NLRB is organized into two major components: a five-member governing board, and the Office of the General Counsel. Board members are appointed by the President and confirmed by the Senate to five-year terms, with the term of one member expiring each year. The General Counsel is also appointed by the President, for a four-year term, and confirmed by the Senate. The board is a quasi-judicial body that decides labor issues, while the General Counsel investigates and prosecutes cases.
When an unfair labor practice (ULP) charge is filed, an NLRB field office conducts an investigation to determine whether there is reasonable cause to believe the NLRA 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 NLRB’s 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. In addition to performing these duties, the NLRB provides information to the public on employee rights, NLRB decisions and memos, appellate court branch briefs and motions, manuals, rules & regulations, brochures and reports.
The NLRB considers its greatest success to be the large number of unfair labor practice cases that result in settlements. As a result of settlements during the past decade, the NLRB has distributed close to $430 million to American workers for back pay owed as a result of employers’ unfair labor practices. The NLRB has collected nearly $1.2 billion as a result of all settlements and court orders during the decade.
The NLRB is headquartered in Washington D.C., and has 52 field offices across the country.
From the NLRB Web Site:
Filing a charge against an employer
The NLRB’s FY 2013 Justification of Performance Budget (pdf) offers the following proposed budget distribution:
Personnel Compensation $173,000,000
Civilian Personnel Benefits $44,000,000
GSA & DHS payments $33,000,000
Misc. Services $25,000,000
Furniture & Equipment $9,000,000
Rent, Communications & Utilities $5,000,000
Travel & Transportation $3,000,000
Supplies $1,000,000
Total Budget $293,000,000
The National Labor Relations Board spent more than $427 million this decade on more than 3,000 transactions, according to USASpending.gov. The primary services utilized by the NLRB include facility operation and maintenance services ($165,899,279), legal services ($33,088,968 ), automated information system design and integration services ($31,546,412 ), ADP software ($29,692,371), and lease or rental of facilities and office buildings ($27.9 million).
The top five recipients of NLRB contracts were:
Hewlett-Packard Company $170,793,831
Government of the United States $63,654,759
Harvey Holzman $33,121,018
Netstar-1 Inc. $32,267,657
Thomson Company Inc. $29,049,146
2011: A Busy Year of Controversy
The National Labor Relations Board (NLRB) drew plenty of attention and criticism in 2011 for its actions and decision-making.
Its move to use a rarely employed rulemaking authority to rewrite the rulebook on union elections sparked controversy, as did its requirement of employers to post what critics claimed was a pro-union NLRB poster in workplaces. The board also sued Boeing, which delayed the company from opening a new production facility in South Carolina in a plant move that was seen as an illegal retaliation against union workers in Washington.
A federal appeals court delayed the implementation of the posters in April 2012. The Boeing suit (also delayed in April 2012 by a federal judge) produced a backlash from Republicans in Congress who threatened to severely chop the NLRB’s budget. Board officials responded to the threat by warning the cuts would force it to largely stop operating altogether.
Instead of coming to the support of the NLRB, the Obama White House responded by ordering the board to remove its budget retort from its Web site.
NLRB: White House Muzzled Us In Budget Debate (by Ryan Grim, Huffington Post)
It's 2012 And The NLRB Is Off To A Fast – And Controversial – Start (Fisher & Phillips LLP)
Court Delays NLRB Rule on Workplace Union Posters (by Kent Hoover, Columbus Business First)
Obama’s NLRB Recess Appointments
Frustrated over Republican opposition in the Senate to his appointments, President Barack Obama tried to go around his GOP opposition in January 2012. Obama selected three new members of the NLRB, giving them recess appointments that do not require Senate confirmation. The only problem with this strategy was the Senate was not formally in recess (it was in pro forma session, at which no official business is performed).
Conservatives blasted the president for his actions. A business advocacy group filed a lawsuit, while Republican senators introduced resolutions and legislation condemning the appointments.
One GOP lawmaker, John Kline (R-Minnesota), said the legitimacy of the NLRB’s actions and decisions going forward would be drawn into question and considered “constitutionally suspect.”
Littler Shareholder Stefan Marculewicz Testifies at Congressional Hearing Addressing NLRB Recess Appointments (by Ilyse Schuman, Employment Law Update)
House Committee To Examine Obama’s NLRB Recess Appointments Tuesday (Labor Union Report)
Social Network Issues
The NLRB stepped into the issue regulating social networking Web sites when it came to the defense of a reporter in 2011 after she got into trouble for using Twitter.
Deborah Zabarenko, Reuter’s environmental reporter in Washington, responded to an invitation from the wire service’s management that asked employees how Reuters could be a better place to work. She posted on Twitter: “One way to make this the best place to work is to deal honestly with [Newspaper] Guild members.”
The next day Zabarenko received a call at home from her bureau chief who said Reuters’ policy required employees not to speak ill of the company publicly. The journalist said she felt threatened and intimidated by the call.
The NLRB then stepped in and filed a civil complaint accusing Reuters of illegally reprimanding the reporter. The board said the company had violated Zabarenko’s right to engage colleagues in a discussion about improving work conditions.
The matter was finally resolved in late 2011. At that time Reuters agreed on a social media policy that preserved employees’ rights to discuss wages, hours, and working conditions on Facebook, Twitter, and similar Web sites.
Labor Panel to Press Reuters Over Reaction to Twitter Post (by Steven Greenhouse, New York Times)
NLRB To File Complaint Against Reuters Over Reporter’s Tweet (Talking Biz News)
Is the NLRB Turning Up the “Social Media Heat” Too High? No… Not Yet (Social Media in Organizations)
Social Media Accord Ends Union Dispute with Thomson Reuters (The Sunday Times)
NLRB Accused of Violating Labor Law
Washington Post columnist Joe Davidson reported in January 2009 that, “the National Labor Relations Board has problems with its own labor relations.” The NLRB had refused to obey a ruling by a sister agency that settles disputes between the federal government and unions representing federal employees. The controversy stemmed from NLRB’s refusal to negotiate with a bargaining unit that combines employees from the two sides of the agency (the general counsel and the board). That refusal disobeyed a ruling by the Federal Labor Relations Authority (FLRA). The union picketed NLRB General Counsel Ronald Meisburg and called on him to resign if he didn’t obey the law. In July 2010, the U.S. Court of Appeals for the District of Columbia Circuit reversed the FLRA ruling.
Union Challenges Labor Relations Board (by Joe Davidson, Washington Post)
Decision of U.S. Court of Appeals in NLRB v FLRA (pdf)
Democrats Accuse Labor Board of Being Pro-Business
Senate and House Democrats attacked the Republican-led National Labor Relations Board in December 2007, saying its recent decisions had favored employers over workers. The Democrats focused on 61 board decisions issued in September that, among other things, made it harder for unions to organize workers and harder for illegally fired employees to collect back pay. “This board has undermined collective bargaining at every turn, putting the power of the law behind lawbreakers, not law victims,” said Sen. Edward M. Kennedy (D-Massachusetts), then chairman of the Senate Health, Education, Labor and Pensions Committee. At a Congressional hearing, Wilma Liebman, then a Democratic member of the five-member board, repeatedly clashed with the board’s Republican chairman, Robert J. Battista. “Virtually every recent policy choice by the board,” Liebman charged, “impedes collective bargaining, creates obstacles to union representation or favors employer interests.” Liebman, herself, went on to serve as the chair of the NLRB from 2009 to 2011.
Critics Say Labor Board Favors Business (by Steven Greenhouse, New York Times)
“No Fraternizing” Ruling Sparks Lawsuit
The NLRB caused an uproar in 2005 by upholding an employer’s rule against employees fraternizing with each other—on or off the premises. The ruling involved a complaint brought against an employee of Guardsmark, a large security company, over the company’s rule that warned employees not to “... fraternize on duty or off duty, date or become overly friendly with the client’s employees or with co-employees.” Guardsmark said it needed the rule because, “A security officer who is overly familiar with a fellow security officer or a client’s employee may overlook signals that, if detected, could be instrumental in preventing workplace violence.” The NLRB ruling brought criticism from employee-rights advocates and newspaper columnists, as well as from a union lawyer representing the guard, Daniel Higgins. “It is absurd,” remarked labor lawyer Antonio Ruiz. “How do you define what fraternizing is?” In February 2007, the D.C. Court of Appeals ruled against Guardsmark, and in favor of workers’ rights to fraternize.
The Underrated Importance of Fraternizing (by Paula Brantner, Today’s Workplace)
Guardsmark v. NLRB (OpenJurist)
Undercover Friends: Firms That Discourage Mixing Have It Wrong (by Amy Joyce, Washington Post)
As workers' rights erode, unions are fighting back (by Rick Bender, Seattle Times)
Should the NLRB expand rules favorable to unions?
The National Labor Relations Board in 2011 proposed regulations that would give labor more ability to win union-organizing elections. The rules would cut the time that employers have to fight union efforts after an election is requested. The debate surrounding the proposal was fed in part by another NLRB decision to sue Boeing for moving its production facility out of state, an act viewed by the board and unions as retaliatory against local workers who previously went on strike.
Pro
Labor leaders and Democrats insisted the new NLRB rules were vital for the sake of the American worker. The proposals would give workers “a fair chance to vote” and fix a “broken, bureaucratic maze that stalls and stymies workers’ choices.” Without these changes, employees will lose hope for improving their working conditions, which could result in lower productivity and injure the economy, supporters argued.
Pro-Union Rulings Stir Up Debate (by Diane Stafford, Kansas City Star)
New Data: NLRB Process Fails to Ensure a Fair Vote (by John Logan, Erin Johansson, and Ryan Lamare, UC Berkeley)
Con
Business organizations and Republicans strongly opposed the plan. Representative John Kline of Minnesota, chairman of the House Education and the Workforce Committee, said less time in the union-organizing process would “undermine an employer’s lawful right to communicate with his or her employees” and “cripple a worker’s ability to make an informed decision” in deciding to vote for or against a union.
Republicans, Employers Cry Foul on New Labor Dept., NLRB Rules (The Daily Caller)
Should NLRB powers be limited?
After the National Labor Relations Board (NLRB) sued Boeing to stop it from relocating a factory from Washington state to South Carolina, Republicans went after the NLRB. South Carolina Representative Tim Scott introduced legislation that would strip the NLRB of some of its power, and would specifically “prohibit the NLRB from ordering any employer to relocate, shut down, or transfer employment under any circumstance.”
The NLRB filed suit against Boeing because it claimed the company retaliated against union workers in Washington state by building a nonunion production facility in North Charleston.
Pro: Lessen the Power of the NLRB
Republicans believed the NLRB action against Boeing was an intrusion into private decisions by a company and represented an attack on right-to-work states. “No government board should have the authority to tell a private employer where it can run a business,” said House Committee on Education and the Workforce Chairman John Kline (R-Minnesota). Kline and others said the NLRB should not have the power to override the business decisions of American employers.” To allow the NLRB move to stand would result in an unfriendly business environment and stifle economic growth in Washington state and across the country, and even force American companies to do business overseas.
NLRB's Top Lawyer Still Feels Fallout From Boeing, Union Case (by Kyung M. Song,
Seattle Times)
Federal Labor Board Faces Double-Edged Decision (by Tim Devaney, The Washington Times)
Con: Let the NLRB Do Its Job
Labor groups and Democrats argued the NLRB was simply enforcing the law when it took action against Boeing. They insisted federal law forbids employers from punishing workers who join unions or stage a strike, and Boeing was trying to punish its Washington workforce for going on strike in the past. The anti-NLRB bill was a “reckless” move that would make it easier to play American workers against each other and make it easier to ship American jobs overseas. “It would create an open season for CEOs to punish workers for exercising their rights,” said Representative George Miller (D-California).
Tim Scott Takes on NLRB (by David Slade, Post and Courier)
Wilma B. Liebman (D) 01/20/09 - 08/27/11
Peter C. Schaumber (R) 03/19/08 - 01/19/09
Robert J. Battista (R) 12/17/02 - 12/16/07
Peter J. Hurtgen (R) 05/15/01 - 08/01/02
John C. Truesdale (D) 12/04/98 - 05/14/01
William B. Gould IV (D) 03/07/94 - 08/27/98
James M. Stephens (R) 12/17/87 - 03/06/94
Donald L. Dotson (R) 03/07/83 - 12/16/87
John C. Miller (R) 12/27/82 - 03/07/83
John R. Van de Water (R) 08/18/81 - 12/16/82
Betty S. Murphy (R) 02/18/75 - 04/13/77
John H. Fanning (D) 02/19/74 - 02/19/75, 04/14/77 - 08/14/81
Edward B. Miller (R) 06/03/70 - 12/16/74
Frank W. McCulloch (D) 03/07/61 - 06/02/70
Boyd S. Leedom (R) 11/02/55 - 03/06/61
Guy Farmer (R) 07/13/53 - 08/27/55
Paul M. Herzog (D) 07/05/45 - 06/30/53
Harry A. Millis (D) 11/26/40 - 07/04/45
J. Warren Madden (D) 08/27/35 - 08/26/40
- Table of Contents
- Overview
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- What it Does
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- Suggested Reforms
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