What is the NLRB?

The National Labor Relations Board (NLRB) is an agency of the US government with the designated task of safeguarding the rights of employees in the workplace.

If you and your co-workers want to unionize in order to collectively bargain for better wages, benefits, etc., the NLRB will be a necessary part in getting your union recognized as an official representative in the collective bargaining process.

More specifically, the NLRB does the following:

Conduct Elections

If you wish to form or join a union, or decertify an existing union, you may file an election petition. Please contact an information officer at your nearest Regional Office for assistance.

Investigate Charges

If you believe your NLRA rights have been violated, you may file a charge against an employer or a labor organization. You can find charge forms here. Please contact an information officer at your nearest Regional Office for assistance.

Facilitate Settlements

The NLRB encourages parties to resolve cases by settlement rather than litigation whenever possible. In fact, more than 90% of meritorious unfair labor practice cases are settled by agreement at some point in the process, either through a Board settlement or a private agreement. Board Settlement Agreements

Decide Cases

When complaints of Unfair Labor Practices issued by regional directors do not lead to settlement, they typically result in a hearing before an NLRB Administrative Law Judge. As in any court proceeding, both parties prepare arguments and present evidence, witnesses, and experts.

Enforce Orders

In reviewing cases, the Circuit Courts evaluate the factual and legal basis for the Board’s Order and decide, after briefing or oral argument, whether to enter a judicial decree commanding obedience to the Order. The Court may also enter an Order on the grounds that the responding party failed to oppose or had no legal basis to oppose the Board’s action.

National Labor Relations Board Rulemaking

As part of its ongoing efforts to more effectively administer the National Labor Relations Act and to further the purposes of the Act, the National Labor Relations Board is engaging in rulemaking in a number of important areas.

The NLRB was created in 1935 as a result of the National Labor Relations Act (NLRA). The NLRA was passed as law in recognition of anti-democratic, inegalitarian imbalance of power between employer and employee when it comes to bargaining. Collective bargaining produces strength in numbers and helps soften the imbalance of power, provided the rights of labor are safeguarded. The NLRB is the primary government agency in charge of safeguarding these rights.

The key components of NLRB’s organizational structure consists of a Board and the General Counsel.

The Board is a “quasi-judicial body” charged with deciding the cases brought to it. The Board includes 5 members, each appointed for a 5-year term. The Board members are appointed by the President and subject to congressional approval.

The General Counsel “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.” The General Counsel is appointed by the President for a 4-year term.

The framers of the NLRA legislation opted to anchor the constitutionality (read: authority, legality) of the NLRA in the Commerce Clause of the Constitution. Remember: the ultimate source of validity for the laws in the US is the US Constitution and the conformity of laws with the principles designated in the US Constitution. There are a number of principles in the Constitution that could be picked out as the basis for the legality of labor rights. The Commerce Clause wasn’t the only option. Some possible candidates argued for at the time: the First Amendment right to free speech and free assembly; the Fifth Amendment right to “due process”; the Thirteenth Amendment, which prohibited “”involuntary servitude” and slavery. Instead, legislators opted for the Commerce Clause, which gives Congress the power to “to regulate Commerce with foreign Nations, and among the several States.” This strategy was chosen because the legislators thought it would be the strongest basis on which to ground the NLRA in view of the political disposition of the Supreme Court at the time.

If you want to unionize in the workplace – like the folks at Trader Joe’s – and/or exercise any of the rights you are entitled to under the NLRA, you may need the help of the NLRB. You can follow them on Instagram and Twitter because it’s the 21st-century.

Other questions to think about:

Who can overturn or otherwise nullify decisions made by the NLRB?

What is the relationship of the General Counsel to the Board? What are the zones of responsibility?

If the Board and General Counsel are the result of appointments, what prevents an anti-labor President from appointing anti-labor appointments in order to sabotage the agency?

What are the good and bad consequences of basing the authority of the NLRA on the Commerce Clause as opposed to some other constitutional basis?