NLRB - The Basics
Although labor law isn’t quite as interesting as the MVP vote, knowing a little about the subject can help us make sense of the ongoing battle between MLB owners and the Players Association.
Over the course of the negotiations of the new collective bargaining agreement
between Major League Baseball and the Major League Baseball Players Association
I will be writing a series of articles about the offers and strategies of the parties
and legal background of collective bargaining in general.
To start I’d like to give everyone a background into the National Labor Relations
Act and then get into the Employer’s duty to bargain in good faith as that is
the topic of most interest to many readers of the Baseball Primer.
The National Labor Relations Act (hereafter referred to as the NLRA or the
Act) 49 Stat. 449 (1935), as amended; 29 U.S.C. Sections 151-69 (1998) covers
private sector employees who do not work in the transportation industry as covered
by the Railway Labor Act. Public sector employees are covered by state law.
Federal sector employees are covered by the Federal Labor Relations Act. Employees
are specifically distinguished from independent contractors within Sec. 2(3)
of the Act.
The National Labor Relations Board (hereafter referred to as the NLRB or the
Board) is made up of five members, but recently due to the Senate approval process,
has been made up of fewer than five members. By general custom, the Board is
made up of three members from the President’s party, as the President nominates
the members, and two from the opposite party. Also, by custom, at least two
of the members are considered either pro-union, or pro-management, depending
on the President’s posture. Members serve a five year term and successor members
only serve the remainder of the five-year term, as if it started the day after
the previous member’s term expired. The President also designates a Chairman
of the Board. Any three or more members may issue a decision of the Board, and
in most cases, especially those that do not break new legal ground or overturn
previous Board decisions, the Board designates it’s decision making process
to a sub-panel of the Board made up of three members. Each member is usually
concurrently on three to five sub-panels made up of various arrangements of
I will not go into any detail on the Board’s duties as they relate to union
representation elections as they bear no interest on the current or any previous
issues between MLB and the MLBPA.
In Unfair Labor Practices, or ULPs, the five members of the NLRB is a neutral
adjudicatory body. The General Counsel is the prosecutorial arm under the NLRA.
The General Counsel is also appointed by the President with the advice and consent
of the Senate. The GC serves a four year term. The GC is charged with the final
authority in respect to investigations and issuance of complaints, in respect
to prosecution of such complaints before the Board. The NLRB has divided it’s
jurisdiction into Regional Offices and Resident Posts based upon geographic
need. The Regional Offices are made up of a Regional Director and other staff
who are under the supervision of the General Counsel. The regional staffs are
the first level deputies involved in investigation and prosecution of ULPs.
Administrative Law Judges, or ALJs, hear cases prosecuted by the Regional Offices
on behalf of the General Counsel. The NLRB is required to review any appeals
of decisions of ALJs. The NLRB’s decisions may be appealed to the Federal Circuit
Courts. These cases are either brought by the party who lost the case before
the Board, against the Board, as a petition of review, or by the NLRB itself
as a petition for enforcement. Since the NLRB acts in all of the circuits, and
since, on a lot of issues, the circuits are non-conforming, the Board does not
consider itself bound by the circuits, except in special circumstances. The
Board, however, is bound by the Supreme Court. Generally the circuit courts
are supposed to allow the NLRB discretion due to the Board’s great expertise
in labor relations matters, so when the circuit’s affirm a Board decision, they
usually state that they give great deference to the NLRB. When a circuit reverses
the Board, it is common for the circuit to state that the Board went beyond
is bounds of expertise. The NLRB is successful in defending its decisions in
70-80% of appeals to the Federal Circuits.
© 2001 Eugene Freedman
Posted: November 15, 2001 at 06:00 AM | 2 comment(s)
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