The NLRB gets its authority from the power of Congress to regulate interstate commerce under the Commerce Clause of the United States Constitution. The NLRB is comprised of five members who serve five-year terms. Although not mandated by law, it is customary that no more than three of the five NLRB members may belong to the sitting president’s political party at any given time, and the members’ political ideology frequently influences how they approach particular issues.
The NLRB determines whether employees want to be represented by a union in dealing with their employers and, if so, by which union. These are known as “representation cases” or “R cases.” The NLRB maintains certain procedures and standards of conduct that are at least intended to assure free and fair elections.
The NLRB also investigates and remedies unfair labor practices by employers or unions. These are known as “unfair labor practice (ULP) charges” or “C cases.” The NLRB has the power to order employers to follow “make-whole” remedies, such as reinstatement and/or back pay for workers who were wrongfully discharged. The NLRB can also pursue injunction orders from federal courts. For example, an injunction might, among other things, require a party to return to bargaining or to reinstate unlawfully discharged employees.
The NLRB can direct elections and conduct investigations of unfair labor practices only in cases involving labor disputes that affect, or would affect, commerce, which has been very broadly interpreted to extend to all but purely local enterprises. For example, the operations of a manufacturing company that sells its goods to wholesalers in its own state affects commerce if the wholesalers ship to buyers in other states. The effects of a labor dispute involving the manufacturing company would be felt in other states and the labor dispute would, therefore, “affect” commerce.
In addition to, and independent from, the five-member Board that oversees representation or unfair labor practices cases, the Office of General Counsel (OGC) is responsible for the investigation and prosecution of unfair labor practice cases and for the general supervision of the NLRB field offices in processing cases.
The Board is authorized not only to issue a cease-and-desist order, but also “to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of [the] Act.”
The Board’s order is designed to eliminate the unfair labor practice and undo the effects of the violation, to the extent possible. The Board enjoys considerable discretion in determining the remedy for any given situation.
The NLRB also has the authority to engage in administrative “rulemaking.”
For example, the Board may order an employer who engaged in unfair labor practices to offer certain named individuals immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions without prejudice to their seniority and other rights and privileges, with back pay and interest.
Similarly, the NLRB can also order a union who engaged in unfair labor practices to refund dues or fees illegally collected, plus interest.
The Board’s order usually includes a direction to the employer, the union or both, requiring them to post notices in the employer’s plant or the union’s office notifying the employees that unfair labor practices will be ceased and informing the employees of any affirmative action being undertaken to remedy the violation.
For serious and widespread unfair labor practices, the Board may require its notice be read aloud to the employees.1
Under Section 10(l), final Board orders can be reviewed on appeal.
1.Carey Salt Co., 360 NLRB No. 38 (2014)