HR GlossaryThe NLRB

The NLRB

The NLRB was formed in 1935 to enforce the National Labor Relations Act of 1935 and to investigate charges and facilitate settlements. 

The National Labor Relations Board (NLRB or the “Board”) enforces federal labor laws. Labor law deals with unions, collective bargaining, and other issues related to organized labor. 

What is the NLRB? 

Concerns about unpaid wages, job safety, workplace bias, workers’ compensation, and other work-related matters are generally regarded as employment law and are outside the NLRB’s scope. The NLRB has several purposes: 

  • Protecting employees’ right to organize and determine whether a union should be their bargaining representative
  • Ensuring that employers do not act in a prejudicial manner against workers for joining unions or for bargaining for improved working conditions or better pay
  • Preventing unfair labor practices by unions and private-sector employers
  • Investigating unfair labor practice complaints
  • Proposing and enforcing rules for implementing the NLRA, including standards for determining what constitutes a joint employer or an independent contractor

Why is the NLRB important to a small business? 

The National Labor Relations Board (NLRB) is necessary for small businesses because it governs employee rights and union activity. It also investigates unfair labor practice complaints made against employers and unions and can impose penalties and subject small businesses to litigation. 

The NLRB has three parts: a 5-member board, a General Counsel, and regional offices. The President of the United States appoints Board members, each serving a 5-year term with staggered expiration dates. The President also appoints the General Counsel (GC), who serves a 4-year term, investigates and prosecutes unfair labor practice cases, and supervises cases processed by the field offices. The GC is independent of the Board. The NLRB’s main office is in Washington, D.C., with regional offices across the United States. 

What is the history of the NLRB? 

The NLRB was formed in 1935 to enforce the National Labor Relations Act of 1935. The Board’s purpose is to investigate charges and facilitate settlements. 

The National Labor Relations Act 

The NLRA was created to protect the rights of employees and employers, encourage collective bargaining, and curtail certain private-sector labor and management practices that can harm the general welfare of workers, businesses, and the U.S. economy. It is the principal federal labor law governing private-sector collective bargaining. 

Section 7 of the NLRA legally protects workers from employer retaliation because they engaged in “concerted activity” — when co-workers attempt to address work-related issues. Such actions can include: 

  • Organizing a union
  • Talking to co-workers about working conditions
  • Demanding better working conditions
  • Bringing group complaints to an employer’s attention

A prohibition on retaliation means that an employer cannot discharge, discipline, or threaten workers for participating in concerted activity. The NLRA protects private-sector employees regardless of whether the workplace is unionized or non-unionized, and it also protects employees not interested in joining a union. 

The NLRA doesn’t cover: 

  • Agricultural and domestic workers
  • Employees for rail and air carriers covered by the Railway Labor Act
  • Independent contractors
  • Public sector employees
  • Supervisors

Three sections of the NLRA are especially important for business owners: 

  • Section 7 outlines the rights of employees.
  • Section 8 covers unfair labor practices by employers.
  • Section 9 governs bargaining relationships.

What happens when an employee files unfair labor practice charges? 

Charges must be filed within 6 months of the alleged occurrence in an NLRB Regional Office. The Regional Office investigates the accusation and issues a complaint if the charge has merit. The NLRB prefers to work out a settlement rather than take the matter to court — more than 90% of meritorious unfair labor practice cases are settled by agreement at some point in the process. 

If a settlement is not reached, unfair labor practice complaints go to a hearing before an NLRB Administrative Law Judge (ALJ). The judge issues a decision and a recommended order after considering the evidence. ALJ decisions are subject to review by the 5-member Board in Washington, D.C. On appeal, a 3-member panel of Board members typically reviews and decides the case, though the full Board will review matters involving new issues or those that could set a legal precedent. If either party disagrees with the Board’s ruling, they can appeal to a federal appellate court, and sometimes decisions reach the U.S. Supreme Court. 

Summary 

In recent decisions, the NLRB has ruled that employers can put boundaries on employees’ use of company email under certain circumstances, and that an employer’s social media policy cannot require employees to use their real names. Through its enforcement of the NLRA and administrative rulings on unfair labor practices, the NLRB is a federal agency that cannot be ignored by HR professionals and employers.