National Labor Relations Board
National Labor Relations Board (NLRB) is an independent US
government agency with responsibilities for enforcing
US labor law
US labor law in
relation to collective bargaining and unfair labor practices. Under
National Labor Relations Act of 1935
National Labor Relations Act of 1935 it supervises elections for
labor union representation and can investigate and remedy unfair labor
Unfair labor practices may involve union-related situations
or instances of protected concerted activity. The
NLRB is governed by
a five-person board and a General Counsel, all of whom are appointed
by the President with the consent of the Senate. Board members are
appointed to five-year terms and the
General Counsel is appointed to a
four-year term. The
General Counsel acts as a prosecutor and the Board
acts as an appellate judicial body from decisions of administrative
NLRB is headquartered at 1015 Half St. SE, Washington, D.C., with
over 30 regional, sub-regional, and residential offices throughout the
Plaque on the exterior of
1099 14th Street
1099 14th Street NW in Washington, D.C., the
NLRB headquarters as of 2013.
1.1 1933–1935: First collective bargaining organization 'National
1.2 1935–1939: Constitutionality, communism, and organizational
1.3 1940–1945: The Economics Division and World War II
1.4 1947–1965: Taft-Hartley
1.6 2007–2013: Lack of quorum
2.2 Processing of charges
3 General Counsel
4 Board members
4.1 2007–2013: Unoccupied board seats
4.2 2017 appointments
5 See also
8 External links
1933–1935: First collective bargaining organization 'National Labor
The history of the
National Labor Relations Board
National Labor Relations Board (NLRB) can be traced
to enactment of the
National Industrial Recovery Act
National Industrial Recovery Act in 1933. Section
7(a) of the act protected collective bargaining rights for unions,
but was difficult to enforce. A massive wave of union organizing was
punctuated by employer and union violence, general strikes, and
recognition strikes. The
National Industrial Recovery Act
National Industrial Recovery Act was
administered by the
National Recovery Administration
National Recovery Administration (NRA). At the
outset, NRA Administrator
Hugh S. Johnson
Hugh S. Johnson believed that Section 7(a)
would be self-enforcing, but the tremendous labor unrest proved him
wrong. On August 5, 1933, President
Franklin D. Roosevelt
Franklin D. Roosevelt announced
the establishment of the National Labor Board, under the auspices of
the NRA, to implement the collective bargaining provisions of Section
National Labor Board (NLB) established a system of 20 regional
boards to handle the immense caseload. Each regional board had a
representative designated by local labor unions, local employers, and
a "public" representative. All were unpaid. The public representative
acted as the chair. The regional boards could hold hearings and
propose settlements to disputes. Initially, they lacked authority to
order representation elections, but this changed after Roosevelt
issued additional executive orders on February 1 and February 23,
The NLB, too, proved ineffective. Congress passed Public Resolution
No. 44 on June 19, 1934, which empowered the president to appoint a
new labor board with authority to issue subpoenas, hold elections, and
mediate labor disputes. On June 29, President Roosevelt
abolished the NLB and in Executive Order 6763 established a new,
three-member National Labor Relations Board.
Lloyd K. Garrison was the first chair of the National Labor Relations
Board (often referred to by scholars the "First NLRB" or "Old
NLRB"). The "First NLRB" established organizational structures
which continue at the
NLRB in the 21st century. This includes the
regional structure of the board; the use of administrative law judges
and regional hearing officers to initially rule on cases; an appeal
process to the national board; and the use of expert staff, organized
into various divisions, at the national level. Formally, Garrison
Executive Office, which handled administrative activities of the
national and regionalsit boards, field staff, and Legal Division. It
was overseen by an Executive Secretary.
Examining Division, national staff which conducted field
investigations and assisted the regional boards with adjudications,
hearings, and representative elections.
Information Division, which provided the press and public with news.
Legal Division, which assisted the Department of Justice in seeking
compliance with board decisions in the courts, or in responding to
suits brought about by board decisions.
Research Division, which studied decisions of the regional boards so
that a comprehensive labor law might be developed, and studied the
economics of each case.
Within a year, however, most of the jurisdiction of the "First NLRB"
was stripped away. Its decisions in the automobile, newspaper,
textile, and steel industries proved so volatile that Roosevelt
himself often removed these cases from the board's jurisdiction.
Several federal court decisions further limited the board's power.
Robert F. Wagner
Robert F. Wagner (D – NY) subsequently pushed legislation
through Congress to give a statutory basis to federal labor policy
that would survive court scrutiny. On July 5, 1935, a new law—the
National Labor Relations Act
National Labor Relations Act (NLRA, also known as the Wagner
Act)—superseded the NIRA and established a new, long-lasting federal
labor policy. The NLRA designated the National Labor Relations
Board as the implementing agency.
1935–1939: Constitutionality, communism, and organizational
J. Warren Madden
J. Warren Madden (left), Nathan Witt, and
Charles Fahy (right)
reviewing documents before a congressional hearing on December 13,
The first chair of the "new"
NLRB was J. Warren Madden, professor of
the University of Pittsburgh School of Law. Madden largely
confirmed the previous structure of the "first NLRB" by formally
establishing five divisions within the agency:
The Administrative Division, which oversaw all administrative
activities of the national and regional boards, as well as their
finances. It was led by a Secretary.
The Economic Division, which analzyed economic evidence in cases and
made studies of the economics of labor relations for use by the board
and the courts. It was supervised by a Chief Industrial Economist.
(The division was also known as the Technical Service Division.)
The Legal Division, which handled
NLRB decisions which were appealed
to the courts, or cases where the
NLRB sought enforcement of its
decisions. The position of
General Counsel (an individual hired by the
board) was created to oversee this division. There were two
subdivisions: The Litigation Section, which advised the national and
regional boards, prepared briefs, and worked with the Justice
Department; and the Review Section, which analyzed regional hearings
and decisions, issued interpretations of law, prepared forms, and
The Publications Division, which handled all press and public
inquiries, and published the decisions of the national and regional
boards and their rules and regulations. It was overseen by a Director
The Trial Examining Division, which held hearings before the national
board. It was overseen by a Chief Trial Examiner.
Benedict Wolf was the first Secretary of the NLRB,
Charles H. Fahy
Charles H. Fahy the
first General Counsel, and
David J. Saposs the first Chief Industrial
Economist. Wolf resigned in mid-1937, and Nathan Witt, an attorney
in the Legal Division, was named Secretary in October.
The Economic Division was a critical one for the NLRB.
Cause-and-effect was one of the fundamental assumptions of the
National Labor Relations Act, and for the causes of labor unrest to be
understood economic analysis was needed. From the start, the
Economic Division undertook three important tasks: 1) Gather economic
data in support of cases before the courts; 2) Conduct general studies
of labor relations to guide the board in formulating decisions and
policies; and 3) Research the history of labor relations (the history
of written agreements, whether certain issues were historically part
of collective bargaining, how unions functioned internally, trends in
employer activities, trends in collective bargaining, whether certain
employer actions led to labor disputes, etc.) so that the board could
educate itself, the courts, Congress, and the public about labor
relations. The first function proved critical to the survival of
the NLRB. It was the Economic Division's data and analysis, more than
then NLRB's legal reasoning, which proved critical in persuading the
Supreme Court to sustain the Wagner Act in
NLRB v. Jones &
Laughlin Steel. The Court even cited several Economic Division
studies in its decision. In the wake of Jones & Laughlin
Steel, many labor relations experts outside the agency concluded that
economic analysis was "an accepted fact" essential to the proper
functioning of the agency. The Economic Division did, too. It
asked Madden to pair an economist with an attorney in every important
case, and prepared outline of the economic data needed to support
each case in case it went before the courts.
During his time on the NLRB, Madden was often opposed by the American
Federation of Labor (AFL), which believed that Madden was using the
NLRA and the procedures and staff of the
NLRB to favor the AFL's
primary competitor, the Congress of Industrial Organizations
NLRB and NLRA were also under intense pressure from
employers, the press, congressional Republicans, and conservative
The NLRB's Economic Division proved critical in pushing for a
congressional investigation into employer anti-union activities, and
ensuring that investigation was a success. The Economic Division was
deeply aware of employer use of labor spies, violence, and company
unions to thwart union organizing, and quietly pressed for a
congressional investigation into these and other tactics. Senator
Robert M. La Follette, Jr.
Robert M. La Follette, Jr. took up the suggestion, on June 6, 1936,
the Senate Committee on Education and Labor established a Subcommittee
Investigating Violations of Free Speech and the Rights of Labor
chaired by La Follette. Better known as the "La Follette
Committee", the subcommittee held extensive hearings for five years
and published numerous reports. The committee uncovered extensive
evidence of millions of company dollars used to pay for spies and
fifth columnists within unions, exposed the culpability of local law
enforcement in acts of violence and murder against union supporters
(particularly in the Harlan County War), revealed the wide extent
of illegal blacklisting of union members, and exposed the use of armed
strikebreakers and widespread stockpiling of tear gas, vomit gas,
machine guns, mortars, and armor by corporations to use against
strikers. Some of the evidence the committee used was provided by
the Economic Division, and the investigation proved critical for a
time in defending the agency from business and congressional
The biggest issue the
NLRB faced was constitutional. The Justice
NLRB legal staff wanted the Supreme Court to rule as
quickly as possible on the constitutionality of the NLRA. But the
Board and Justice Department also realized that the Court's Lochner
era legal philosophy made it unlikely that the Court would uphold the
Act. Subsequently, Madden strove to resolve minor cases before they
could become court challenges, and worked to delay appeals as long as
possible until the best possible case could be brought to the
Court. This legal strategy paid off. The Supreme Court upheld the
National Labor Relations Board
National Labor Relations Board v. Jones & Laughlin Steel
Corporation, 301 U.S. 1 (1937). Afterward, Madden continued to
strategically guide the NLRB's legal efforts to strengthen the federal
courts' view of the NLRA and the board's actions. Because of the
efforts of Madden and
General Counsel Charles H. Fahy, the
Supreme Court reviewed only 27 cases between August 1935 and March
1941, even though the board had processed nearly 5,000 cases since its
inception. The Supreme Court enforced the NLRB's rulings in 19 cases
without modifying them, enforced them with modification in six more,
and denied enforcement in two cases. Additionally, the Board won all
30 injunction and all 16 representation cases before the lower courts,
a rate of success unequalled by any other federal agency.
AFL opposition to the "Madden Board" grew after decisions in
Shipowners' Ass'n of the Pacific Coast, 7
NLRB 1002 (1938), enf'd
American Federation of Labor
American Federation of Labor v. National Labor Relations Board, 308
U.S. 401 (1940) (awarding a longshoremen's unit to the CIO rather than
the AFL), and American Can Co., 13
NLRB 1252 (1939) (unit's history of
collective bargaining outweighs desire of workers to form craft-only
The AFL began pushing for an investigation into the NLRB, and this
investigation led to allegations of communist influence within the
agency. In June 1938, the
House Un-American Activities Committee
House Un-American Activities Committee (led
Martin Dies, Jr.
Martin Dies, Jr. [D-TX]) heard testimony from AFL leader
John P. Frey, who accused Madden of staffing the
communists. The allegations were true, in at least one case:
Nathan Witt, the NLRB's executive secretary and the man to whom Madden
had delegated most administrative functions, was a member of the
Communist Party of the United States. These allegations and
discoveries significantly damaged the agency's support in Congress and
with the public.
A second investigation into the
NLRB led to organizational changes at
the board. On July 20, 1939, Republicans and conservative Democrats
formed a coalition to push through the House of Representatives a
resolution establishing a
Special Committee to Investigate the
National Labor Relations Board
National Labor Relations Board (the "Smith Committee"), chaired by
conservative, anti-labor Rep.
Howard W. Smith
Howard W. Smith (D-VA). On March
7, 1940, the Smith Committee proposed legislation which would abolish
the NLRB, reconstitute it, and radically amend the NLRA.
President Roosevelt opposed the bill, although he conceded that
perhaps the Board's membership should be expanded to five from
three. The Smith bill won several early tests in the House, which
also voted to substantially cut the NLRB's budget. Smith won a
vote in the House Rules Committee permitting him to bring his bill to
the floor for a vote. In an attempt to defuse the legislative
crisis, Madden fired 53 staff and forced another five to resign, and
decentralized the NLRB's trial process to give regional directors and
field agents more authority. But the House still passed the Smith
bill by a vote of 258 to 129 on June 7, 1940. To protect the NLRB,
Roosevelt convinced Senator Elbert D. Thomas, chair of the Senate
Committee on Education and Labor, to hold no hearings or votes on the
bill, and the legislation died.
The Smith Committee investigation had a lasting effect on labor law in
the U.S., and was the basis for the
Taft-Hartley Act of 1947.
Madden's term on the
NLRB came to an end after just four years. On
November 15, 1940, President Roosevelt nominated
Harry A. Millis
Harry A. Millis to
NLRB and named him chair, and nominated Madden to a seat on the
U.S. Court of Claims.
1940–1945: The Economics Division and World War II
Another major structural change occurred at the same time that Madden
left the NLRB. The Smith committee's anti-communist drive also
targeted David J. Saposs, the
NLRB Chief Industrial Economist. Saposs
had been surreptitiously assessed by members of the Communist Party
USA for membership, and rejected as a prospect. But Smith and
others attacked Saposs as a communist, and Congress defunded his
division and his job on October 11, 1940. Although the
Smith committee's investigation proved critical, the disestablishment
of the Economic Division was due to many reasons—both internal and
external to the NLRB, and only some of which involved allegations of
communist infiltration. As historian
James A. Gross observed:.
The Division was eliminated for all kinds of reasons which had nothing
to do with the merits and importance of its work: political pressures
and maneuverings, jealousy and empire building between and among
lawyers and economists inside the Board, opposition to leftist
ideologies, a personal attack on the Chief Economist, David Saposs,
and a mighty hostility to the administrative process.
The loss of the Economic Division was a major blow to the NLRB. It had
a major tactical impact: Economic data helped the
NLRB fulfill its
adjudicatorial and prosecutorial work in areas such as unfair labor
practices (ULPs), representation elections, and in determining
remedial actions (such as reinstatement, back pay awards, and
fines). Economic data also undermined employer resistance to the
agency by linking that opposition to employer ULPs. The loss also
left the board dependent on the biased information offered by the
parties in dispute before it, leading to poor decision-making and far
less success in the courts. It also had a major strategic impact:
It left the board unable to determine whether its administration of
the law was effective or not. Nor could the board determine
whether labor unrest was a serious threat to the economy or not. As
labor historian Josiah Bartlett Lambert put it: "Without the Economic
Research Division, the
NLRB could not undertake empirical studies to
determine the actual impact of secondary boycotts, jurisdictional
strikes, national emergency strikes, and the like." The Economic
Division was critical to a long-range
NLRB process that would lead to
the long-term evolution of industrial labor relations in the U.S., but
that goal had to be abandoned. Most importantly, however, the
evisceration of the Economic Division struck at the fundamental
purpose of federal labor law, which was to allow experts to adjudicate
labor disputes rather than use a legal process. With this data and
analysis, widespread skepticism about the board's expertise quickly
spread through Congress and the courts. It also left the board largely
unable to engage in rule-making, forcing it to make labor law on an
inefficient, time-consuming case-by-case basis. As of 1981, NLRB
was still the only federal agency forbidden to seek economic
information about the impact of its activities.
The second chair of the NLRB, Harry A. Millis, led the board in a much
more moderate direction. Lacking an economic division to give it
ammunition to fight with Millis deliberately made the
on Congress and the executive branch for its survival. Millis made
a large number of organizational changes. He stripped the office of
Secretary of its power, set up an Administrative Division to supervise
the 22 regional offices, initiated a study of the Board's
administrative procedures, and genuinely delegated power to the
regional offices. He removed casehandling and regional office
communication from the jurisdiction of the Office of the Secretary and
created a Field Division. He also adopted procedures requiring
the board made its decisions based solely on the trial examiner's
NLRB review attorneys to review trial examiner
report, required decisions to be drafted ahead of time and distributed
for review, authorized review attorneys to revise drafts before a
final decision was issued, required trial examiners to emphasize
findings of fact and to address points of law, and began holding board
meetings when there were differences of opinion over decisions.
Millis eliminated the Review Division's decisive role in cases, which
had been established under Madden and Witt. Madden and Witt had
adopted a highly centralized Board structure so that (generally
speaking) only the cases most favorable to the board made it to the
courts. The centralized structure meant that only the strongest cases
made it to national board, so that the board could apply all its
economic and legal powers to crafting the best decision possible. This
strategy enabled the
NLRB to defend itself very well before the
Supreme Court. But Madden and Witt had held on to the centralized
strategy too long, and made political enemies in the process. Millis
substituted a decentralized process in which the board was less a
decision-maker and more a provider of services to the regions.
Many of the changes Millis instituted were designed to mimic
requirements placed on other agencies by the Administrative Procedure
American entry into World War II on December 8, 1941, significantly
changed the NLRB. On January 12, 1942, President Roosevelt created the
National War Labor Board (NWLB), which displaced the
NLRB as the main
focus of federal labor relations for the duration of the war. The NWLB
was given the authority to "finally determine" any labor dispute which
threatened to interrupt war production, and to stabilize union wages
and benefits during the war. Although Roosevelt instructed the NWLB
not to intrude on jurisdiction exercised by the NLRB, the War Labor
Board refused to honor this request. From 1942 to 1945, Millis tried
to secure a jurisdictional agreement with NWLB chair George W. Taylor.
But these discussions proved fruitless, and Millis broke them off in
June 1945. The NWLB also heavily raided the
NLRB for staff,
Additional changes came with the passage of the War Labor Disputes Act
(WLDA) on June 25, 1943. Enacted over Roosevelt's veto after 400,000
coal miners, their wages significantly lower due to high wartime
inflation, struck for a $2-a-day wage increase, the
legislation (in part) required the
NLRB to issue a ballot outlining
all the collective bargaining proposals and counter-proposals, wait 30
days, and then hold a strike vote. The War Labor Disputes Act
proved very burdensome. The
NLRB processed 2,000 WLDA cases from 1943
to the end of 1945, of which 500 were strike votes. The act's strike
vote procedures did little to stop strikes, however, and Millis feared
unions were using the referendums to whip up pro-strike feelings among
their members. Millis also believed the law's strike vote process
actually permitted more strikes to occur than the
NLRB would have
allowed under its old procedures. There were so many strike vote
filings in the six months after the war ended that
NLRB actually shut
down its long distance telephone lines, cancelled all out of town
travel, suspended all public hearings, and suspended all other
business to accommodate the workload. By early 1945, Millis was in
ill health. He resigned from the
NLRB on June 7, 1945, and
Paul M. Herzog was named his successor.
A major turning point in the history of the
NLRB came in 1947 with
passage of the Taft-Hartley Act. Disruptions caused by strikes during
World War II as well as the huge wave of strikes that followed the end
of the war fueled a growing movement in 1946 and 1947 to amend the
NLRA to correct what critics saw as a pro-labor tilt in federal
law. Drafted by the powerful Republican Senator Robert A. Taft
and the strongly anti-union Representative Fred A. Hartley, Jr., the
Taft-Hartley Act banned jurisdictional strikes, wildcat strikes,
political strikes, secondary boycotts, secondary picketing, mass
picketing, union campaign donations made from dues money, the closed
shop, and unions of supervisors. The act also enumerated new employer
rights, defined union-committed ULPs, gave states the right to opt out
of federal labor law through right-to-work laws, required unions to
give an 80-days' strike notice in all cases, established procedures
for the President to end a strike in a national emergency, and
required all union officials to sign an anti-Communist oath.
Organizationally, the act made the
General Counsel a presidential
appointee, independent of the board itself, and gave the General
Counsel limited powers to seek injunctions without referring to the
Justice Department. It also banned the
NLRB from engaging in any
mediation or conciliation, and formally enshrined in law the ban on
hiring personnel to do economic data collection or analysis.
Herzog publicly admitted the need for some change in the NLRA, but
privately he opposed the proposed Taft-Hartley amendments. He felt the
communist oath provisions were unconstitutional, that the amendments
would turn the NLRA into a management weapon, that creation of an
General Counsel would weaken the NLRB, and that the law's
dismantling of the agency's economic analysis unit deprived the NLRB
of essential expertise. Nonetheless, Congress overrode Truman's
veto of the
Taft-Hartley Act on June 23, 1947, and the bill became
Taft-Hartley Act fundamentally changed the nature of federal labor
law, but it also seriously hindered the NLRB's ability to enforce the
law. The loss of the mediation function left the
NLRB unable to become
involved in labor disputes, a function it had engaged in since its
inception as the
National Labor Board in 1933. This hindered the
agency's efforts to study, analyze, and create bulwarks against
bad-faith collective bargaining; reduced its ability to formulate
national labor policy in this area; and left the agency making labor
law on an ineffective, time-consuming case-by-case basis. The
separation of the
General Counsel from supervision by the national
board also had significant impact on the agency. This separation was
enacted against the advice of the Justice Department, contradicted the
policy Congress had enacted in the Administrative Procedure Act of
1946, and ignored Millis' extensive internal reforms. The change left
NLRB as the only federal agency unable to coordinate its
decision-making and legal activities, and the only agency exempted in
this manner under the Administrative Procedure Act. Interestingly, the
separation of the
General Counsel was not discussed by the committee
or by any witnesses during the legislation's mark-up. Indeed, there
was no basis for it at all in the public record. It was, in the
words of sociologist Robin Stryker, "little-noted" and
The anti-communist oath provisions generated extensive public debate,
and generated disputes before the Supreme Court several times. The
Taft-Hartley oath first reached the court in American Communications
Ass'n v. Douds, 339 U.S. 382 (1950), in which the court held 5-to-1
that the oath did not violate the First Amendment, was not an ex post
facto law or bill of attainder in violation of Article One, Section
10, and was not a "test oath" in violation of Article Six. The issue
again came before the court in Garner v. Board of Public Works, 341
U.S. 716 (1951), in which the court unanimously held that a municipal
loyalty oath was not an ex post facto law or bill of attainder. It
came before the court yet a third time in Wieman v. Updegraff, 344
U.S. 183 (1952). This time, the outcome was radically different. The
Supreme Court unanimously ruled that state loyalty oath legislation
violated the due process clause of the Fourteenth Amendment. In 1965,
the Supreme Court held 5-to-4 that the anti-communist oath was, in
fact, a bill of attainder in United States v. Brown, 381 U.S. 437
(1965). The Supreme Court essentially overturned Douds, but did
not formally do so.
This section needs expansion. You can help by adding to it. (January
2007–2013: Lack of quorum
From December 2007 until June 2010, the five-person Board had only two
members, creating a legal controversy. Three members' terms expired in
December 2007, leaving the
NLRB with just two members—Chair Wilma B.
Liebman and Member Peter Schaumber. President George W. Bush
refused to make some nominations to the Board and Senate Democrats
refused to confirm those which he did make.[full citation
On December 28, 2007, just before the Board lost its quorum, the four
members agreed to delegate their authority to a three-person panel per
the National Labor Relations Act. Only Liebman and Schaumber
would remain on the Board, but the Board concluded that the two
constituted a quorum of the three-person panel and thus could make
decisions on behalf of the Board. Liebman and Schaumber
informally agreed to decide only those cases which were in their view
noncontroversial and on which they could agree, and issued almost 400
decisions between January 2008 and September
2009.[full citation needed][full citation needed]
The U.S. Courts of Appeals for the First, Second, and Seventh Circuits
upheld the two-member NLRB's authority to decide cases, while the D.C.
Circuit Court of Appeals did not.[full citation
needed][full citation needed][full citation needed] In
September 2009, the Justice Department asked the U.S. Supreme Court to
immediately hear arguments concerning the dispute, given the high
stakes involved. The Supreme Court granted certiorari in October
and agreed to decide the issue.
In June 2010, the Supreme Court ruled in New Process Steel, L. P. v.
NLRB that the two-member Board had no authority to issue decisions,
invalidating all rulings made by Liebman and Schaumber.[full
citation needed] In 2013, the question of a legitimate quorum on the
NLRB surfaced again, when the District of Columbia Court of Appeals
ruled that President Obama had "violated the Constitution when he
bypassed the Senate to fill three board vacancies".[full citation
This section needs additional citations for verification. Please help
improve this article by adding citations to reliable sources.
Unsourced material may be challenged and removed. (February 2018)
(Learn how and when to remove this template message)
Union members picketing
NLRB rulings outside the agency's Washington,
D.C., headquarters in November 2007.
In 1947, the
Taft–Hartley Act created a formal administrative
distinction between the Board and the
General Counsel of the NLRB. In
broad terms, the
General Counsel is responsible for investigating and
prosecuting unfair labor practice claims and for the general
supervision of the
NLRB field offices. The
General Counsel is
appointed by the President to a four-year term and independent from
the Board; it has limited independence to argue for a change in the
law in presenting cases to the Board. The
General Counsel oversees
four divisions: the Division of Operations Management, the Division of
Administration, the Division of Advice, and the Division of
The Board, on the other hand, is the adjudicative body that decides
the unfair labor practice cases brought to it. Once the Board has
decided the issue, it is the General Counsel's responsibility to
uphold the Board's decision, even if it is contrary to the position it
advocated when presenting the case to the Board. The Board is also
responsible for the administration of the Act's provisions governing
the holding of elections and resolution of jurisdictional disputes.
The Board has more than thirty regional offices. The regional offices
conduct elections, investigate unfair labor practice charges, and make
the initial determination on those charges (whether to dismiss,
settle, or issue complaints). The Board has jurisdiction to hold
elections and prosecute violations of the Act in
Puerto Rico and
The Board's jurisdiction is limited to private sector employees and
the United States Postal Service; other than Postal Service employees,
it has no authority over labor relations disputes involving
governmental, railroad and airline employees covered by the Adamson
Railway Labor Act, or agricultural employees. On the other hand, in
those parts of the private sector its jurisdictional standards are low
enough to reach almost all employers whose business has any
appreciable impact on interstate commerce.
Processing of charges
Charges are filed by parties against unions or employers with the
appropriate regional office. The regional office will investigate the
complaint. If a violation is believed to exist, the region will take
the case before an
Administrative Law Judge who will conduct a
hearing. The decision of the
Administrative Law Judge may be reviewed
by the five member Board. Board decisions are reviewable by United
States Courts of Appeals. The Board's decisions are not
self-executing: it must seek court enforcement in order to force a
recalcitrant party to comply with its orders. (For greater detail on
this process see the entry for unfair labor practice).
Lafe Solomon was named Acting
General Counsel on June 21, 2010. His
nomination was sent to the U.S. Senate on January 5, 2011. Solomon's
authority came into question on August 13, 2013 when Judge Benjamin H.
Settle for the United States District Court for the Western District
of Washington denied a petition for injunctive relief, ruling that
Solomon had not been properly appointed under the Federal Vacancies
Reform Act of 1998 (FVRA). Although other district courts had
enforced Solomon's requests, Judge Settle's decision called into
question all of Solomon's activity since June 21, 2010, focusing on
subsections (a)(1) and (2) of the FVRA; some pundits claimed that
Solomon's appointment was allowed under subsection (a)(3).
President Obama withdrew Solomon's nomination.
On July 31, 2013, President Obama nominated former
Richard Griffin as General Counsel—"a kind of prosecutor at the
board" and "one of the most critical roles at the agency."
Solomon's nomination was withdrawn. The Senate approved Griffin's
nomination on October 29, 2013, by a vote of 55 to 44.
(Term expires in years ending 8 and 3)
Mark Gaston Pearce (D)
April 7, 2010
August 27, 2018
(Term expires in years ending 9 and 4)
Lauren McFerran (D)
December 17, 2014
December 16, 2019
(Term expires in years ending 6 and 1)
William Emanuel (R)
September 28, 2017
August 27, 2021
(Term expires in years ending 7 and 2)
December 16, 2022
(Term expires in years ending 5 and 0)
Marvin Kaplan (R)
August 10, 2017 
August 27, 2020
2007–2013: Unoccupied board seats
In April 2009, President Obama nominated Craig Becker (Associate
General Counsel of the Service Employees International Union), Mark
Gaston Pearce (a member on the Industrial Board of Appeals, an agency
of the New York State Department of Labor), and Brian Hayes
(Republican Labor Policy Director for the Senate Committee on Health,
Education, Labor and Pensions) to fill the three empty seats on the
Becker's nomination appeared to fail on February 8, 2010, after
Republican Senators (led by John McCain) threatened to filibuster his
nomination. President Obama said he would consider
making recess appointments to the
NLRB due to the Senate's failure to
move on any of the three nominations. On March 27, 2010, Obama
recess appointed Becker and Pearce.
On June 22, 2010, a voice vote in the Senate confirmed Pearce to a
full term, allowing him to serve until August 27, 2013. The same day,
the Senate confirmed Republican nominee Brian Hayes of Massachusetts
by voice vote. Hayes' term ended on December 16, 2012. Becker's
term, as a recess appointee, ended on December 31, 2011.
Effective August 28, 2011, Pearce was named chairman to replace
Democrat Wilma Liebman, whose term had expired.
On January 4, 2012, Obama announced recess appointments to three seats
on the board: Sharon Block, Terence F. Flynn, and Richard
Griffin. The appointments were criticized by Republicans,
including the House Speaker John Boehner, as unconstitutional and "a
brazen attempt to undercut the role of the Senate to advise and
consent the executive branch on appointments". Although made as
recess appointments, critics questioned their legality, arguing that
Congress had not officially been in recess as pro forma sessions had
been held. Former U.S. attorney general
Edwin Meese stated that
in his opinion, since the appointments were made when the Senate was
"demonstrably not in recess" they represented "a constitutional abuse
of a high order". On January 12, 2012 the U.S. Justice Department
released a memo stating that appointments made during pro forma
sessions are supported by the Constitution and precedent.
On January 25, 2013, in Noel Canning v. NLRB, a panel of the U.S.
Court of Appeals for the District of Columbia Circuit ruled that
President Obama's recess appointments were invalid as they were not
made during an intersession recess of the Senate, and the President
moved to fill them during the same recess. On May 16, 2013, in
National Labor Relations Board
National Labor Relations Board v. New Vista Nursing and
Rehabilitation, the U.S. Court of Appeals for the Third Circuit became
the second federal appellate court to rule that the recess
appointments to the
NLRB were unconstitutional. In a split decision,
it also found that the March 27, 2010 recess appointment of Craig
Becker was unconstitutional. On January 14, 2014, the U.S.
Supreme Court heard the case in
National Labor Relations Board
National Labor Relations Board v. Noel
Between January 2008 and mid-July 2013 the agency never had all five
members, and not once did it operate with three confirmed
members. On July 14, 2013, Senate Majority Leader Harry Reid
threatened to exercise the "nuclear option" and allow a simple
majority (rather than a supermajority) of the Senate to end a
filibuster. This threat to end the filibuster's privileged position in
the Senate was intended to end Republican filibustering of NLRB
nominees. On July 16, 2013, President Obama and Senate
Republicans reached an agreement to end the impasse over NLRB
appointees. Obama withdrew the pending nominations of Block and
Griffin, and submit two new nominees: Nancy Schiffer, associate
general counsel at the AFL-CIO, and Kent Hirozawa, chief counsel to
NLRB Chairman Mark Gaston Pearce. Republicans agreed not to oppose a
fourth nominee, to be submitted in 2014.
On July 30, 2013, the Senate confirmed all five of Obama's nominees
for the NLRB: Kent Hirozawa, Harry I. Johnson III, Philip Miscimarra,
Mark Gaston Pearce and Nancy Schiffer. Johnson and Miscimarra
represented the Republican nominees for the board. Pearce was
confirmed for a second five-year term. Nancy Schiffer's term
ended on December 15, 2014. She was succeeded by Lauren McFerran on
December 16, 2014. Harry I. Johnson III's term ended on August 27,
On January 25, 2017, President
Donald J. Trump
Donald J. Trump appointed Philip
Miscimarra the acting chairman of the NLRB. Miscimarra retired on
December 16, 2017. Marvin Kaplan succeeded him as
NLRB chair on
December 21, 2017.
Organized labour portal
US labor law
Federal Labor Relations Authority
Federal Mediation and Conciliation Service (United States)
List of Chairs of the National Labor Relations Board
NLRB election procedures
Subpoena ad testificandum
Subpoena duces tecum
Title 29 of the Code of Federal Regulations
^ a b Morris 2005, p. 25.
^ a b Vittoz 1987, p. 145.
^ "Wage and Price Controls facts, information, pictures -
Encyclopedia.com articles about Wage and Price Controls".
^ Morris 2005, p. 8.
^ Dubofsky & Dulles 2004, pp. 252–54.
^ Bernstein & Piven 1969, pp. 217–18.
^ Rayback, pp. 328–29.
^ Morris 2005, p. 47.
^ Schlesinger 2003, p. 151.
^ Vittoz 1987, p. 144.
^ Gross 1974, pp. 71–72.
^ Gross 1974, p. 156.
^ Gross 1974, pp. 79–80.
^ The "first NLRB" was barred from initiating or responding to
lawsuits itself. It could only ask the Department of Justice to act on
^ Schlesinger 2003, pp. 400–06.
^ "President Names New Labor Board." New York Times. August 24, 1935.
^ Gross 1974, p. 219.
^ Gross 1974, pp. 79, 170, 174–75.
^ Gross 1974, pp. 111, 143.
^ a b Stryker 1989, p. 344.
^ Gross 1974, pp. 176–79.
^ Gross 1974, pp. 176–79, 191.
^ Stryker 1989, p. 347.
^ Gross 1974, pp. 228–29.
^ Gross 1974, p. 233.
^ a b Eisner 2000, p. 101.
^ Gross 1974, pp. 182–83.
^ Stark, Louis. "Both A.F.L. and C.I.O. Hit at National Labor Board."
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^ Gall 1999, pp. 83–84, 97–98.
^ Gross 1974, pp. 171–73.
^ Gross 1981, p. 2.
^ a b Gross 1974, pp. 214–23.
^ Baker & Stack 2006, pp. 56–57.
^ Luff 2007, p. 774.
^ Lambert 2005, p. 90.
^ a b Chasse 2011, p. 57.
^ Bernstein & Piven 1969, pp. 643–46.
^ Bernstein & Piven 1969, pp. 662–63.
^ Bernstein & Piven 1969, pp. 654–55 The AFL held to a
philosophy of craft unionism, while the CIO believed in industrial
unionism. According to the AFL, American Can decisively tipped NLRB
policy in favor of the CIO.
^ "Reds Start Count of Allies in Federal Jobs and Push Participation
in C.I.O., Frey Says." New York Times. January 10, 1938; "Communists
Rule the C.I.O., Frey of A.F.L. Testifies." New York Times. August 14,
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^ Bernstein & Piven 1969, p. 667.
^ Storrs 2013, p. 65.
^ Gross 1981, pp. 151–54.
^ Bernstein & Piven 1969, p. 668.
^ Gross 1981, pp. 194–99.
^ Among the changes proposed: Removing of many of the guarantees of
collective bargaining from the Wagner Act's preamble, denying legal
protection to sitdown strikers and agricultural workers, removing the
requirement that employers must bargain with unions, making the
General Counsel independent from the Board, abolishing the board's
economic research unit, enhancing employer free speech rights,
introducing the right of employers to seek an election among their
workers, and removing the board's authority to engage in bargaining
unit determination. See: Bernstein & Piven 1969, p. 670
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NLRB to Roosevelt." New York Times. December 30,
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^ Gross 1981, p. 225.
^ Atleson 1998, p. 11.
^ "Dr. Millis Slated to Head the NLRB." New York Times. November 7,
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^ Gross 1981, pp. 199, 202.
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^ a b c d Gross 1981, p. 264.
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^ Stryker 1989, p. 349.
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^ Gross 1981, p. 265.
^ a b c Lambert 2005, p. 104.
^ Eisner 2010, pp. 336–37.
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^ Gross 1981, pp. 264–65.
^ Gross 1981, p. 261.
^ Gross 1981, p. 229.
^ a b Tomlins 1985, p. 225.
^ Stark, Louis. "Methods of
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^ a b Tomlins 1985, p. 226.
^ Gross 1981, p. 243.
^ Malsberger 2000, p. 104.
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^ "Dr. H.A. Millis Dies." New York Times. June 26, 1948.
^ "In Administration Shake-Up", Associated Press, June 8, 1945.
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^ Gross 2010, pp. 11–13.
^ Lee 1980, pp. 101–03.
^ "Beyond Process: A Substantive Rationale for the Bill of Attainder
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