NLRB - National Labor Relations Board (US)
The independent US federal agency responsible for enforcing the National Labor Relations Act (NLRA), protecting employees' rights to organize, conducting union representation elections, and investigating unfair labor practice charges against employers and unions.
- What Is the NLRB?
- NLRB Structure and Key Roles
- NLRB Union Representation Elections
- Unfair Labor Practices Under the NLRA
- Protected Concerted Activity: Beyond Unions
- What Happens When a ULP Charge Is Filed
- Recent NLRB Developments HR Teams Should Know
- NLRB Statistics [2026]
- Frequently Asked Questions About the NLRB
What Is the NLRB?
Key Takeaways
- ✓The National Labor Relations Board (NLRB) is the US federal agency that enforces the National Labor Relations Act (NLRA), the primary law governing private sector labor relations in America.
- ✓The NLRB has two main functions: conducting union representation elections to determine whether employees want union representation, and investigating and adjudicating unfair labor practice (ULP) charges filed against employers or unions.
- ✓Over 20,000 unfair labor practice charges are filed with the NLRB each year, covering issues like employer interference with organizing, retaliation against union supporters, and failure to bargain in good faith.
- ✓The Board consists of 5 members appointed by the President for staggered 5-year terms. The political composition of the Board significantly influences how the NLRA is interpreted and applied.
- ✓The NLRB doesn't cover agricultural workers, domestic workers, independent contractors, supervisors, federal/state/local government employees, or railway/airline employees (who fall under the Railway Labor Act).
The NLRB is the reason American workers have a legal right to form unions, bargain collectively, and engage in protected concerted activity. Created in 1935 as part of FDR's New Deal, the agency enforces the NLRA (also called the Wagner Act). Every HR professional in the United States needs to understand what the NLRB does, even if their company has no union presence. Why? Because the NLRA protects all private sector employees, not just union members. Section 7 of the NLRA gives every covered worker the right to self-organization, to join or assist labor organizations, to bargain collectively, and to engage in concerted activities for mutual aid or protection. That last part is broad. Two non-union employees discussing their pay at lunch are engaging in protected concerted activity. An employee posting on social media about unsafe working conditions is likely protected. Fire them for it, and you'll face an NLRB charge. The agency operates through a network of 26 regional offices across the country. When someone files a charge, the regional office investigates. If there's merit, a complaint is issued and the case goes before an Administrative Law Judge (ALJ). ALJ decisions can be appealed to the five-member Board in Washington, and Board decisions can be appealed to the federal Circuit Courts.
NLRB Structure and Key Roles
The NLRB has two separate arms that operate independently: the Board (adjudicatory) and the General Counsel (prosecutorial).
Why the Board's political composition matters
The 5-member Board is the NLRB's decision-making body, and its composition swings between labor-friendly and employer-friendly interpretations depending on which party controls the White House. Democratic-appointed Boards tend to expand worker protections (broader definitions of protected activity, easier paths to unionization). Republican-appointed Boards tend to favor employer flexibility (narrower definitions, more procedural hurdles for unions). Major precedents can reverse when the Board's majority shifts, creating uncertainty for both employers and unions.
| Component | Function | Leadership |
|---|---|---|
| The Board (5 members) | Decides cases on appeal from ALJs, sets policy through case decisions, conducts rulemaking | Chair designated by the President from among the 5 members |
| General Counsel | Investigates charges, issues complaints, prosecutes ULP cases before ALJs, supervises regional offices | Appointed by the President for a 4-year term (separate from Board members) |
| Regional Offices (26) | Receive charges, investigate, conduct elections, attempt settlements, try cases before ALJs | Each headed by a Regional Director |
| Administrative Law Judges | Conduct hearings and issue initial decisions in ULP cases | Career judges within the NLRB, not political appointees |
NLRB Union Representation Elections
The NLRB conducts elections when employees want to determine whether a union will represent them. The process is more structured than most people realize.
How a union election is triggered
At least 30% of employees in a proposed bargaining unit must sign authorization cards or a petition expressing interest in union representation. The union then files a petition with the NLRB regional office. In practice, unions typically wait until they have 60% to 70% support before filing, because some supporters inevitably change their minds during the campaign period. The regional office investigates the petition, determines the appropriate bargaining unit, and schedules an election (typically 2 to 6 weeks after the petition).
The election process
Elections are conducted by secret ballot, usually at the workplace. An NLRB agent supervises the voting. Both the employer and the union can have observers present. A simple majority of votes cast (not all eligible employees) determines the outcome. If the union wins, the NLRB certifies it as the exclusive bargaining representative. If the union loses, another election petition can't be filed for 12 months (the election bar).
Employer conduct during campaigns
The TIPS rule defines what employers can't do during a union campaign: Threaten employees with adverse consequences for supporting a union, Interrogate employees about their union sympathies, Promise benefits to discourage union support, and Surveil union activities. Employers can express opinions about unionization, share factual information about what union representation means, and explain the election process. The line between lawful campaigning and unlawful interference is often thin and fact-specific.
Unfair Labor Practices Under the NLRA
The NLRA defines specific employer and union conduct that constitutes unfair labor practices. These are the most commonly charged violations.
| Section | Who It Applies To | What It Prohibits |
|---|---|---|
| 8(a)(1) | Employers | Interfering with, restraining, or coercing employees exercising Section 7 rights (the broadest employer ULP, covers nearly all other violations) |
| 8(a)(2) | Employers | Dominating or interfering with a labor organization (e.g., employer-controlled worker committees) |
| 8(a)(3) | Employers | Discriminating against employees to encourage or discourage union membership (firing union supporters, demoting organizers) |
| 8(a)(4) | Employers | Retaliating against employees who file NLRB charges or testify in proceedings |
| 8(a)(5) | Employers | Refusing to bargain in good faith with a certified union (unilateral changes, surface bargaining, failing to provide information) |
| 8(b)(1) | Unions | Restraining or coercing employees exercising Section 7 rights (including the right NOT to join a union) |
| 8(b)(4) | Unions | Secondary boycotts (pressuring neutral employers to stop doing business with the target employer) |
Protected Concerted Activity: Beyond Unions
Section 7 protections apply to all private sector employees, regardless of whether a union exists. This is the part of the NLRA that most non-union employers overlook.
What counts as concerted activity
Activity is "concerted" when two or more employees act together to improve working conditions, or when one employee acts on behalf of others. Examples include: employees discussing their wages or benefits with each other, a group of workers refusing to work in unsafe conditions, employees circulating a petition about workload or scheduling, posting on social media about workplace concerns when addressing a group audience, and walking off the job to protest working conditions. A single employee's complaint about their own individual issue (without any group element) is generally not concerted activity.
Common employer mistakes
Non-union employers frequently violate Section 7 without knowing it. Common mistakes include: maintaining policies that prohibit employees from discussing wages (illegal even if never enforced), firing employees for complaining about working conditions on social media, disciplining employees who organize group complaints to management, and requiring confidentiality during workplace investigations to the extent that it chills protected activity. The NLRB has been increasingly active in challenging workplace policies that could reasonably be read to restrict Section 7 rights, even if the employer didn't intend that effect.
What Happens When a ULP Charge Is Filed
Understanding the timeline and process helps employers respond effectively when they receive an NLRB charge.
Investigation phase
After a charge is filed at the regional office, an NLRB agent investigates. They interview witnesses, request documents, and assess whether the evidence supports the charge. This investigation typically takes 7 to 12 weeks. The regional office then makes a merit determination: issue a complaint (if there's reasonable cause) or dismiss the charge (if the evidence doesn't support it). About 60% of charges are withdrawn, dismissed, or settled before a complaint is issued.
Settlement opportunities
The NLRB strongly encourages settlements at every stage. Before a complaint issues, the regional office will attempt to negotiate a settlement between the parties. Typical settlement terms include posting a notice of employee rights, reinstating terminated employees with back pay, rescinding unlawful policies, and ceasing the specific conduct. Settling before a complaint issues avoids the public record of a formal proceeding. About 90% of meritorious charges are resolved through settlement.
Hearing and Board decision
If settlement fails, an Administrative Law Judge conducts a formal hearing. Both sides present evidence and testimony. The ALJ issues a written decision with recommended remedies. Either party can appeal to the five-member Board in Washington. Board decisions are enforceable through the federal Circuit Courts. The total timeline from charge to Board decision can take 1 to 3 years.
Recent NLRB Developments HR Teams Should Know
The NLRB's interpretation of the law shifts with each new Board composition. These recent developments are particularly relevant for employers.
- Cemex decision (2023): If an employer commits unfair labor practices during an organizing campaign that make a fair election unlikely, the NLRB can order the employer to bargain with the union without an election. This is a significant change from the previous approach of simply ordering a new election.
- Non-compete agreements: The NLRB has taken the position that overly broad non-compete clauses violate Section 7 by chilling employees' ability to resign and seek employment elsewhere, which affects their bargaining position.
- Employee handbook policies: The Board applies the Stericycle standard (2023), which asks whether a reasonable employee could interpret a workplace rule as restricting Section 7 activity. This has led to challenges against common policies on confidentiality, social media use, and workplace conduct.
- Joint employer standard: The NLRB's evolving joint employer rule determines when a staffing agency client or franchisor is considered an employer for collective bargaining purposes. The standard has shifted back and forth between narrow and broad definitions.
- Social media protections: The NLRB continues to find that employee social media posts about working conditions are protected concerted activity, even when the posts contain strong language, as long as they aren't threats or egregiously offensive.
NLRB Statistics [2026]
Key data points about the NLRB's caseload and enforcement activity.
Frequently Asked Questions
Does the NLRA apply to my company if we don't have a union?
Can an employer prohibit employees from discussing their pay?
What happens if the NLRB charges my company with a ULP?
Are supervisors protected by the NLRA?
How long does an employer have to respond to an NLRB charge?
Written by Adithyan RK