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The National Labor Relations Board, and its structure and processes, and the terms it uses, and the terms journalists use for what it does are confusing: a (dry but hopefully maybe useful) thread...
Context: The National Labor Relations Board is the agency created by the 1935 National Labor Relations Act to enforce and interpret private sector labor laws covering collective action and unionization rights (for those workers the NLRA didn't exclude). https://www.bloomberg.com/graphics/2020-the-fleecing-of-the-american-worker/
(While the NLRB handles “labor law,” other state and federal agencies handle “employment law” matters like minimum wage and sexual harassment.) https://www.bloomberg.com/news/articles/2017-10-09/the-eeoc-commissioner-out-to-prove-that-lgbt-discrimination-is-sex-discrimination
The NLRB is an enforcement agency, investigating claims and prosecuting cases; a quasi-judicial agency, hearing cases and issuing sometimes-sweeping rulings on the law’s meaning; and also a regulatory agency that can go through formal rulemaking to issue regs.
The NLRB has two main arms. One is the “Board” itself, made up of 5 presidentially-appointed members (3 from the U.S. President’s party, including a “Chair,” and 2 from the other party), who hear appeals on cases and can issue regulations.
The other arm is the office of the NLRB general counsel, also appointed by the U.S. President. The GC is arguably the most powerful individual person at the NLRB, because they have sweeping power over what cases get pursued in the first place. https://www.bloomberg.com/news/articles/2020-11-08/prop-22-gives-uber-and-lyft-a-new-model-for-gig-economy-workers
And unlike employment laws such as overtime pay, the NLRA generally makes the NLRB the only legal recourse for labor law violations, preventing private lawsuits or parallel enforcement by states. https://www.bloomberg.com/news/articles/2018-02-14/now-arriving-at-america-s-airports-unions
The General Counsel oversees a network of regional NLRB offices that handle cases, and other units like a Division of Advice that weighs in with those offices on whether to pursue certain types of claims. https://www.bloomberg.com/news/articles/2018-02-16/google-firing-of-damore-was-legal-u-s-labor-panel-lawyer-said
Regional NLRB offices also handle petitions from workers seeking to unionize and oversee unionization elections https://www.bloomberg.com/news/articles/2017-02-14/boeing-floods-airwaves-in-south-carolina-union-grudge-match
Here's how NLRB enforcement works: To pursue a violation of the NLRA, you file a claim with a regional NLRB office. Such claims can be filed against companies or unions by anyone, whether or not they witnessed the offense or work at the place in question. We can call this Step 1.
(Here's the form to file allegations with the NLRB: https://apps.nlrb.gov/chargeandpetition)
To make things extra confusing, the NLRB refers to this first step – somebody bringing an allegation to the agency - as a “charge,” while some media outlets (mine included) call it a "complaint."
To make things extra confusing, the NLRB refers to this first step – somebody bringing an allegation to the agency - as a “charge,” while some media outlets (mine included) call it a "complaint."
If what’s being alleged would (if true) violate the NLRA, generally the NLRB regional office investigates the claims and, if it finds merit in them, tries to secure a settlement. https://www.bloomberg.com/news/articles/2016-04-28/t-mobile-accused-of-fighting-a-real-union-by-creating-a-fake-one
If the regional NLRB office finds merit in allegations and can’t get a settlement, it will issue a complaint. (This is something the NLRB calls a complaint and media outlets also call a complaint.) We can call this Step 2. https://www.bloomberg.com/news/articles/2017-08-31/u-s-labor-board-complaint-says-on-demand-cleaners-are-employees
Following a complaint being issued by a regional director, if there’s still no settlement, the case proceeds to a trial before one of the NLRB’s Administrative Law Judges, who then (eventually) issues a ruling. We can call this Step 3. https://www.bloomberg.com/news/articles/2019-09-27/tesla-committed-unfair-labor-practices-nlrb-judge-rules
Getting from filing a claim with the NLRB to securing a ruling from an NLRB judge can take years. The remedies the judge can order are severely limited – no punitive damages. And those rulings can be appealed... https://www.bloomberg.com/news/articles/2014-06-27/after-nine-years-the-labor-board-says-fired-starbucks-barista-should-get-his-job-back
Here’s where the NLRB members (the “Board”) come in. NLRB administrative law judges’ rulings get appealed to them (usually a panel of 3 out of the 5 members, if it’s not a precedent-setting case).
NLRB members review the evidence & issue rulings on cases, and sometimes use those cases to establish new precedents (or restore older ones by reversing reversals) on how to interpret the NLRA (Who/what does/doesn't it protect?). We could call this Step 4. https://www.bloomberg.com/news/articles/2020-07-30/it-s-now-even-easier-to-fire-u-s-workers-for-what-they-say
Because the board's majority flips (eventually) when the White House changes parties, precedent on some issues keeps flipping back & forth too, though it can take a president’s whole term or more for the right case to reach the Board for that to happen https://www.bloomberg.com/news/articles/2016-05-12/can-graduate-students-unionize-the-government-can-t-decide
NLRB rulings can be appealed to federal court and onward to the Supreme Court – we can call that Step 5. https://www.bloomberg.com/news/articles/2017-09-29/california-helps-workers-sue-their-bosses-new-york-has-noticed
This doesn’t count other weird things that can happen, like a whole slew of rulings being thrown out at once by the Supreme Court on the grounds there wasn’t a quorum on the board, and so needing to be heard all over again…
In summary, major steps in the NLRB enforcement process - each of which can be newsworthy but are important to distinguish from each other - are:
1) Somebody files allegation (NLRB term is "charge")
2) If no settlement, NLRB regional director can issue a complaint
3) If no settlement, agency judge holds trial and issues ruling
4) NLRB members can issue a ruling on an appeal of the agency judge's ruling
5) Federal court
2) If no settlement, NLRB regional director can issue a complaint
3) If no settlement, agency judge holds trial and issues ruling
4) NLRB members can issue a ruling on an appeal of the agency judge's ruling
5) Federal court
If you're noticing that there are at least 2 of these 5 steps that can reasonably be called a "complaint" and 3 of them that can be called a "ruling," that's part of why I wrote this thread!
All that said, many workers are excluded entirely from NLRB protection, and many others have found the agency of little use against their bosses. These are ongoing themes in my work...
https://www.bloomberg.com/graphics/2020-the-fleecing-of-the-american-worker/
https://www.bloomberg.com/news/articles/2020-04-07/coronavirus-marks-the-best-and-worst-time-for-workers-to-strike
https://prospect.org/notebook/alt-labor/ https://www.bloomberg.com/news/features/2020-08-27/covid-pandemic-u-s-businesses-issue-gag-rules-to-stop-workers-from-talking
https://www.bloomberg.com/graphics/2020-the-fleecing-of-the-american-worker/
https://www.bloomberg.com/news/articles/2020-04-07/coronavirus-marks-the-best-and-worst-time-for-workers-to-strike
https://prospect.org/notebook/alt-labor/ https://www.bloomberg.com/news/features/2020-08-27/covid-pandemic-u-s-businesses-issue-gag-rules-to-stop-workers-from-talking
Wherever you work, please bring me your stories! (DMs are open; email is jeidelson at bloomberg dot net; cell/Signal is area code 215 then 828-9123)
