NLRB Processes

03
CHAPTER

Overview of Agency Functions

The National Labor Relations Board (NLRB) is an independent federal agency created to administer the National Labor Relations Act (NLRA). It is not a court, but an administrative body with quasi-judicial and quasi-legislative powers. Its work is bifurcated into two independent authorities: the Board (a five-member judicial body) and the General Counsel (an independent prosecutor).

The agency’s primary functions are:

    • Representation Cases (“R” Cases): Facilitating the democratic process by which employees choose whether to be represented by a union.
    • Unfair Labor Practice Cases (“C” Cases): Investigating, prosecuting, and adjudicating allegations of violations of the Act by employers or unions.
Video Resource: Agency Overview

What Does the National Labor Relations Board Do?

This resource outlines the fundamental split between the Board’s adjudicatory role and the General Counsel’s prosecutorial role, visualizing the path of a case from the regional level to headquarters.

Video 1:

Conducting Elections

The NLRB does not initiate organizing drives; it responds to petitions filed by stakeholders. The process is designed to determine if a “Question Concerning Representation” (QCR) exists.

Types of Petitions

    • RC Petition: Filed by a union or a group of employees seeking certification as a bargaining representative.
    • RD Petition (Decertification): Filed by employees seeking to remove an existing union.
    • RM Petition (Management): Filed by an employer. Historically, this was permitted only if the employer had “objective considerations” to doubt a union’s majority status or had been presented with a claim of majority support.
    • UD Petition (Deauthorization): Filed by employees to rescind a union security clause (forced dues).

The Cemex Framework (2023)

In the landmark Cemex Construction Materials Pacific, LLC decision, the Board fundamentally altered the “R” case landscape. Under this new framework, if a union requests recognition based on majority support (e.g., signed cards), the employer must either:

    1. Recognize the union immediately.
    2. Promptly file an RM Petition (typically within two weeks) to test the union’s support in an election.

If the employer commits an unfair labor practice (ULP) during the “critical period” before the election that requires the election to be set aside, the Board will likely issue a Bargaining Order rather than ordering a rerun election.

Video Resource: Filing Petitions

NLRB Representation and Decertification Petitions

This guide details the different types of petitions (RC, RD, RM) and the legal thresholds required to file them.

Video 2:

The Election Process

    1. Petition Filing & Showing of Interest: For RC and RD petitions, the petitioner must demonstrate that at least 30% of the employees in the proposed bargaining unit support the petition. This is typically done through signed authorization cards, which are confidential and checked administratively against the employer’s payroll.
    2. Investigation/Hearing: The Regional Director investigates if the proposed bargaining unit is appropriate (i.e., do employees share a “community of interest”?). If the parties cannot agree on the unit composition (e.g., who is a “supervisor”), a pre-election hearing is held.
    3. The Election: Typically conducted via secret ballot (either manual or mail).
    4. Certification: If the union receives a majority of the valid votes cast (50% + 1), the Board issues a Certification of Representative. If not, it issues a Certification of Results.

“Laboratory Conditions”

The Board strives to conduct elections under “laboratory conditions” an ideal environment free from coercion where employees can make a rational, uninhibited choice. This doctrine originated in General Shoe Corp. (1948). If either party engages in conduct that destroys these conditions (e.g., surveillance, interrogation, inflammatory appeals), the Board may set aside the results and order a new election.

Investigating Charges

The ULP process is prosecutorial. The NLRB General Counsel acts as the prosecutor on behalf of the public interest.

Steps in the Investigation

    1. Filing a Charge: Any person (employee, union, employer) can file a charge alleging a violation of the Act. Under Section 10(b), this must usually be done within six months of the alleged violation.
    2. Investigation: A Board Agent is assigned to interview witnesses and take sworn affidavits. The investigation is rigorous; historically, approximately 60-70% of charges are found to lack merit and are dismissed or withdrawn.
    3. Merit Determination: If the Regional Director determines the charge has merit, they will first seek a settlement.

Complaint: If no settlement is reached, the Regional Director issues a formal Complaint, setting the case for trial before an Administrative Law Judge (ALJ).

Video Resource: The ULP Process

How to File a Complaint with the National Labor Relations Board?

A practical guide on the steps to identify a violation, contact the NLRB, and the protections against retaliation for filing a charge.

Facilitation of Settlements

The Board has a strong policy preference for settlement to resolve disputes quickly and conserve resources. Over 90% of meritorious ULP cases are settled.

    • Informal Settlements: Approved by the Regional Director. The charged party agrees to remedial action (e.g., reinstate a worker, post a notice) but typically does not admit to violating the law (a “non-admission clause”). These are not enforced by a court order but can be revoked if the party fails to comply.
    • Formal Settlements: Used in serious cases or for recidivists. These require approval by the Board in Washington, D.C., and result in a Board Order and often a federal court judgment enforcing that order. A violation of a formal settlement can lead to contempt of court proceedings.

Case Decisions and Enforcing Orders

If a case proceeds to litigation, it follows a hierarchical path:

    1. ALJ Hearing: The case is tried before an Administrative Law Judge. The General Counsel prosecutes, and the Respondent defends. The ALJ issues a recommended decision.
    2. Board Review: If a party files exceptions, the case goes to the five-member Board in Washington. The Board reviews the record de novo on matters of law.

Court Enforcement: NLRB orders are not self-enforcing. If a company refuses to comply, the Board must petition a U.S. Court of Appeals for enforcement. The court reviews the Board’s findings to ensure they are supported by “substantial evidence” (see Universal Camera Corp. v. NLRB).

Video Resource: Appeals and Remedies

Thryv, Inc. v. NLRB and Make-Whole Remedies

This discussion analyzes the appeals process and the Board’s expanding view of remedies, including the recent shift to include “consequential damages” (e.g., credit card interest, medical bills) in backpay awards.

Video 3:

Case Decisions and Enforcing Orders

If a case proceeds to litigation, it follows a hierarchical path:

    1. ALJ Hearing: The case is tried before an Administrative Law Judge. The General Counsel prosecutes, and the Respondent defends. The ALJ issues a recommended decision.
    2. Board Review: If a party files exceptions, the case goes to the five-member Board in Washington. The Board reviews the record de novo on matters of law.

Court Enforcement: NLRB orders are not self-enforcing. If a company refuses to comply, the Board must petition a U.S. Court of Appeals for enforcement. The court reviews the Board’s findings to ensure they are supported by “substantial evidence” (see Universal Camera Corp. v. NLRB).

Adjudication vs. Rulemaking

For decades, the Board resisted rulemaking, preferring the flexibility of case law. In NLRB v. Bell Aerospace (1974), the Supreme Court affirmed the Board’s discretion to choose between rulemaking and adjudication to announce new principles. However, recent Boards have used formal rulemaking more frequently to define election procedures and “Joint Employer” status, attempting to create regulations that are more durable than oscillating case precedents.5

Video Resource: Policy Making

NLRB v. Bell Aerospace (1974)

A lecture explaining the Supreme Court’s ruling that affirmed the Board’s power to create policy through individual case decisions rather than formal regulations.

Video 4:

References

  1. NLRB Overview: What Does the National Labor Relations Board Do? CountyOffice.org. 1
  2. Petitions: NLRB Representation and Decertification Petitions. Horton Management Law. 2
  3. Filing Charges: How to File a Complaint with the National Labor Relations Board? CountyOffice.org. 3
  4. Remedies & Appeals: Labor Law Insider – Thryv, Inc. v. NLRB. Husch Blackwell. 4
  5. Rulemaking: NLRB v. Bell Aerospace (1974). Professor Dru Stevenson. 5
  6. Cemex Decision: NLRB Flips Responsibility for Filing Representation Election Petitions. Duane Morris LLP.
  7. Settlements: NLRB Bench Book, Chapter 9: Settlements.