NLRB fights for its life

The battle between an aggressive National Labor Relations Board (NLRB) and a skeptical, conservative judiciary is being played out in courtrooms across the country. Board decisions on union recognition without election, expanded monetary damages, and classification of workers as “joint employees,” for example, are being challenged by employers shocked by the altered precedents and emboldened by Supreme Court rulings narrowing agencies’ jurisdiction and limiting their discretion when interpreting the law. Subsuming all the case law decisions is the assertion that the structure of the NLRB itself is unconstitutional, an assertion soon to reach an appellate court.

Background

NLRB cases begin with an unfair labor practice charge. The Board’s General Counsel, through its regional directors’ offices, investigates and determines whether to pursue the matter by filing an unfair labor practice complaint. If so, a hearing is held, with an NLRB lawyer arguing before administrative law judges (ALJs) appointed to hear NLRB cases.

The hearing’s outcome can be contested and then heard by the NLRB members themselves. All NLRB decisions can be appealed to an appellate court. Even then, the matter isn’t closed. If a Board decision is overruled by a federal circuit court of appeals, it’s the Board’s practice to deem the appellate ruling as applicable only in that circuit but enforceable everywhere else.

Thus, a final nationwide decision can come only from the Supreme Court. The High Court, however, has a history of taking few NLRB cases. That may change.