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Thursday, November 15, 2001

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   Members.

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


Eugene Freedman Posted: November 15, 2001 at 05:00 AM | 2 comment(s) Login to Bookmark
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   1. Toby Posted: November 15, 2001 at 12:13 AM (#604232)

One thing in your piece strikes me as odd. Is it only the employer that has an obligation to bargain in good faith? Doesn't the union have the same obligation?
   2. Eugene Freedman Posted: November 15, 2001 at 12:13 AM (#604235)

My next piece deals with ULPs, and specifically Section 8(a)(5) the Employer's duty to bargain. There is a parallel duty to bargain for the union in Sec. 8(b)(3).


The next article focusses on Unfair Labor Practices and specifically the failure to bargain in good faith. The third will focus specifically on the law of plant closures and relocations within the duty to bargain. That will be the most relevant to the issues of contraction. I also have already submitted a bio for Shyam Das, baseball's grievance arbitrator, who will be determining whether or not baseball has violated the notice requirements of the CBA in announcing contraction. Look for that to be posted soon.


The case from the 1994-5 strike is Major League Baseball Player Relations Committee Inc. v. Silverman, NLRB Regional Director. It's sites are 880 F.Supp 246, 148 LRRM 2992 (1995) Southern District of NY for Judge Sotomayor's opinion, and 67 F.3d 1054, 150 LRRM 2390 (1995) for the Second Circuit's affirming decision. Don't bust me on blue booking. Sorry I don't have an on-line location for these.

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