Who’s Who at the National Labor Relations Board
The National Labor Relations Board (the “NLRB” or “Board”) is a federal agency created by Congress in 1935 to administer the National Labor Relations Act (the “NLRA”). The Board functions primarily in two areas. First, the Board establishes and oversees procedures for union representation matters (those involving union elections, decertifications and clarification of existing bargaining units). Second, the Board adjudicates charges that employers and unions have engaged in unfair labor practices in violation of the NLRA. In carrying out these roles, the Board wields tremendous power in charting the course of labor-management relations in the United States. As such, many employers naturally ask: who are the people making these decisions that can have such a dramatic impact on my business?
The Board itself, which sits in Washington, D.C., is a quasi-judicial body comprised of five members that decides both unfair labor practice and representation cases which, generally, are appealed to it from the recommended decisions and orders of various administrative law judges (in unfair labor practice cases) and from decisions issued by the Regional Directors (in representation matters). The Board is the “Supreme Court” within the agency. Board Members are appointed by the President to 5-year terms, with Senate consent, and one Member is designated by the President to serve as the Chairperson.
Although the Board is supposed to have five sitting Members who were confirmed by the Senate, it is not uncommon for there to be fewer than five Members. In addition, when a Member’s term expires but no new Member has yet been nominated by the President or confirmed by the Senate, there occurs a “recess” opening on the Board, and the President may make a “recess appointment,” under which a Member serves temporarily without Senate confirmation.
The General Counsel
While the five members of the Board fulfill the agency’s adjudicatory function, the prosecutorial function is carried out by the NLRB’s General Counsel. The General Counsel is appointed by the President to a 4-year term with the consent of the United States Senate. The Office of the General Counsel is responsible for the investigation and prosecution of unfair labor practice charges, and oversees the administration of the various NLRB Regional Offices throughout the United States.