NEED TO KNOW
NATIONAL LABOR RELATIONS BOARD
The National Labor Relations Board (NLRB) is perhaps the most influential
actor in private sector labor relations today. Assigned multiple functions
from conducting elections for unionization to arbitrating charges of unfair
labor practice, NLRB’s extensive powers over the private sector reflect the
Depression era from which it sprung. Unfortunately, great power and great
danger go hand in hand. In recent years, NLRB’s decisions have been
criticized for favoring labor unions at the expense of businesses and
economic growth.

ORIGINS
As the American economy sunk into the Great Depression, the National
Industrial Recovery Act was enacted in 1933, granting private sector workers
the right to collectively bargain with their employees (3). Quickly after
passage, a National Labor Board was created to protect the Act’s bargaining
provisions. However, after that board’s structure proved ineffective,
President Franklin D. Roosevelt abolished it in 1934 and established a
three-member National Labor Relations Board in its place. Like its
predecessor, the newly created NLRB was quickly stripped of its power after
issuing numerous controversial rulings. Finally, in 1935, the National Labor
Relations Act was passed solidifying the structure of the NLRB to a
five-person adjudicating board. Although the Board’s bureaucracy has
shifted over the years, abolishing its Economics Division in 1940 for example,
the NLRB’s basic functions have remained the same.

QUICK FACTS
NLRB’s national and 32
regional offices process
20,000-30,000 charges of
unfair labor practice each year
(1)

NOTABLE & QUOTABLE
“Today, many job creators are
being punished for doing
business. Confiscatory taxes.
Suffocating regulations.
Stifling energy costs... Now
they must also endure a rogue
agency thumbing its nose at
an unambiguous and
unanimous court ruling. How
are they supposed to have the
confidence to invest and
create jobs?” (2)
-Bernie Marcus, co-founder of
Home Depot

FUNCTIONS
Today NLRB performs five basic functions: conducting elections for unionization, investigating charges of unfair
labor practice, facilitating settlements of such charges, deciding cases of such charges, and enforcing Circuit Court
orders (4). Most of these functions are performed by the NLRB’s 32 regional offices. However, administration law
case decisions are appealable to NLRB’s five-member board in Washington, D.C.
When a workforce is interested in organizing, they must circulate a petition for unionization and present it to their
NLRB regional office when 30% of employees sign. After such a requirement is met and the petition is processed,
and NLRB regional official conducts an election after waiting period of approximately 30 days in which both proand anti-unionization factions can make their case to the workforce. A union must be recognized if more than 50%
of the workforce votes in favor.
If a worker, employee, or union believes their rights have been violated under the National Labor Relations Act,
they can file an unfair labor practice charge with the NLRB regional office. If the office finds merit with the claim,
they notify the charged part and offer an opportunity to settle before proceeding with the charge. NLRB receives
20,000 to 30,000 charges per year, 90% of which are settled before going to court.
The 10% of cases remaining are heard before a NLRB administrative law judge and can be appealed to the Board
in Washington, D.C. However, the D.C. Board is not the final arbiter of unfair labor practice charges. All NLRB cases
can be appealed to Circuit Court, and ultimately the Supreme Court, and have been overturned numerous times
throughout the Board’s history.

 BOARD STRUCTURE & QUORUM ISSUES
In theory, the Board consists of five members – three from the President’s party and two from the
opposition party. However, the Board has had many periods throughout its history where it was
occupied by less than five members and has thereby experienced problems maintaining a quorum. In
recent years, the U.S. Supreme Court invalidated the Board’s decisions from December 2007 to March
2009 because it only had two members (5). Most recently, the NLRB’s Quorum from January 2012 was
evaluated by the Supreme Court, as the President attempted to make three recess appointments when,
according to the D.C. Court of Appeals, the Senate was not actually in recess. The Court ruled that the
appointments were unconstitutional, leaving more than a year of rulings invalidated (6).

CONTROVERSY
NLRB has faced intense scrutiny under the Obama administration for issuing rulings that critics claim
overturn years of precedent to favor labor. Such controversial decisions include:
• Ambush elections: In December 2011, the Board issued a final rule eliminating 25-30 day waiting
period before a workforce votes whether to unionize. The D.C. District Court of Appeals has since
dismissed the rule, but similar cases may surface soon (7).
• Microunions: In September 2011, the Board ruled in Specialty Healthcare that subclasses of workers
in a workplace can form “micro-unions,” forcing employers to bargain with several classes of employees
simultaneously (8).
• Social media: In December 2012, the Board ruled in Hispanics Unified of Buffalo that companies
cannot fire employees for complaining about management online (9).

CONCLUSION
Although NLRB plays a critical role in enforcing provisions of the National Labor Relations Act, their
recent quorum issues and controversial rulings merit reconsideration of the function and organization
of the Board.

Endnotes:
1.
“Investigate Charges,” National Labor Relations Board, http://www.nlrb.gov/what-we-do/investigate-charges.
2.
Bernie Marcus, “The National Labor Relations Board Goes Rogue,” The Wall Street Journal (February 13, 2013),
http://online.wsj.com/article/SB10001424127887324162304578302590637139214.html.
3.
James A. Gross, The Making of the National Labor Relations Board: A Study in Economics, Politics, and the Law:
Volume 1(1933-1937) (1974).
4.
National Labor Relations Board, http://www.nlrb.gov.
5.
“Supreme Court Invalidates Decisions Made by Two-Member NLRB Panel,” Constangy, Brooks & Smith, LLP (June 17,
2010), http://www.constangy.com/firm-news-135.html.
6.
Recess appointments
https://www.washingtonpost.com/politics/supreme-court-rebukes-obama-on-recess-appointments/2014/06/26/e5e4fefa-e83111e3-a86b-362fd5443d19_story.html
7.
“NLRB Watch: NLRB’s ‘Ambush’ Election Rule Invalidated... At Least for Now,” National Right to Work Legal Defense
Foundation, http://www.nrtw.org/en/nlrb-watch/nlrb-watch-nlrb-s-ambush-election-rule-invalidated.
8.
“Specialty Healthcare and Rehabilitation Center of Mobile” (August 26, 2011), National Labor Relations Board,
http://www.nlrb.gov/case/15-RC-008773.
9.
Hispanics United of Buffalo (December 14, 2012), National Relations Board
http://mynlrb.nlrb.gov/link/document.aspx/09031d4580e8c5f4.

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