National Labor Relations Board

The National Labor Relations Board is an independent agency of the federal government of the United States that enforces U.S. labor law in relation to collective bargaining and unfair labor practices. Under the National Labor Relations Act of 1935, the NLRB has the authority to supervise elections for labor union representation and to investigate and remedy unfair labor practices. Unfair labor practices may involve union-related situations or instances of protected concerted activity.
The NLRB is governed by a five-person board and a general counsel, all of whom are appointed by the president with the consent of the Senate. Board members are appointed for five-year terms and the general counsel is appointed for a four-year term. The general counsel acts as a prosecutor and the board acts as an appellate quasi-judicial body from decisions of 36 administrative law judges, as of November 2023. The NLRB is headquartered at 1015 Half St. SE, Washington, D.C., and it has over 30 regional, sub-regional, and residential offices throughout the United States.

History

1933–1935: First collective bargaining organization National Labor Board

The history of the National Labor Relations Board can be traced to enactment of the National Industrial Recovery Act in 1933. Section 7 of the act protected collective bargaining rights for unions, but was difficult to enforce. The NLRB was not given monitoring powers. A massive wave of union organizing was punctuated by employer and union violence, general strikes, and recognition strikes. The National Industrial Recovery Act was administered by the National Recovery Administration. At the outset, NRA Administrator Hugh S. Johnson believed that Section 7 would be self-enforcing, but the tremendous labor unrest proved him wrong. On August 5, 1933, President Franklin D. Roosevelt announced the establishment of the National Labor Board, under the auspices of the NRA, to implement the collective bargaining provisions of Section 7.
The National Labor Board established a system of 20 regional boards to handle the immense caseload. Each regional board had a representative designated by local labor unions, local employers, and a "public" representative. All were unpaid. The public representative acted as the chair. The regional boards could hold hearings and propose settlements to disputes. Initially, they lacked authority to order representation elections, but this changed after Roosevelt issued additional executive orders on February 1 and February 23, 1934.
The NLB, too, proved ineffective. Congress passed Public Resolution No. 44 on June 19, 1934, which empowered the president to appoint a new labor board with authority to issue subpoenas, hold elections, and mediate labor disputes. On June 29, President Roosevelt abolished the NLB and in Executive Order 6763 established a new, three-member National Labor Relations Board.
Lloyd K. Garrison was the first chairman of the National Labor Relations Board. The "First NLRB" established organizational structures which continue at the NLRB in the 21st century. This includes the regional structure of the board; the use of administrative law judges and regional hearing officers to initially rule on cases; an appeal process to the national board; and the use of expert staff, organized into various divisions, at the national level. Formally, Garrison established the:

Executive Office, which handled administrative activities of the national and regional boards, field staff, and Legal Division. It was overseen by an Executive Secretary.
Examining Division, national staff which conducted field investigations and assisted the regional boards with adjudications, hearings, and representative elections.
Information Division, which provided the press and public with news.
Legal Division, which assisted the Department of Justice in seeking compliance with board decisions in the courts, or in responding to suits brought about by board decisions.
Research Division, which studied decisions of the regional boards so that a comprehensive labor law might be developed, and studied the economics of each case.

Within a year, however, most of the jurisdiction of the "First NLRB" was stripped away. Its decisions in the automobile, newspaper, textile, and steel industries proved so volatile that Roosevelt himself often removed these cases from the board's jurisdiction. Several federal court decisions further limited the board's power. Senator Robert F. Wagner subsequently pushed legislation through Congress to give a statutory basis to federal labor policy that survived court scrutiny. On July 5, 1935, a new law—the National Labor Relations Act —superseded the NIRA and established a new, long-lasting federal labor policy. The NLRA designated the National Labor Relations Board as the implementing agency.

1935–1939: Constitutionality, communism, and organizational changes

The first chairman of the "new" NLRB was J. Warren Madden, professor of the University of Pittsburgh School of Law. Madden largely confirmed the previous structure of the "first NLRB" by formally establishing five divisions within the agency:

Administrative Division: Oversaw all administrative activities of national and regional boards and their finances; led by Secretary
Economic Division: Analyzed economic evidence in cases; made studies of economics of labor relations for use by board and courts; supervised by Chief Industrial Economist; also known as the Technical Service Division
Legal Division: Handled NLRB either decisions appealed to courts or cases in which NLRB sought enforcement of its decisions; overseen by general counsel ; comprised two subdivisions:
* Litigation Section: Advised national and regional boards, prepared briefs, worked with Justice Department
* Review Section: Analyzed regional hearings and decisions; issued interpretations of law; prepared forms; drafted regulations
Publications Division: Handled all press and public inquiries; published decisions of national and regional boards and their rules and regulations; overseen by Director of Publications
Trial Examining Division: Held hearings before the national board; overseen by Chief Trial Examiner

Benedict Wolf served as first Secretary of the NLRB, Charles H. Fahy the first general counsel, and David J. Saposs the first Chief Industrial Economist. Wolf resigned in mid-1937, and Nathan Witt, an attorney in the Legal Division, was named Secretary in October.
The Economic Division was a critical one for the NLRB. Cause-and-effect was one of the fundamental assumptions of the National Labor Relations Act, and for the causes of labor unrest to be understood economic analysis was needed. From the start, the Economic Division undertook three important tasks: 1) Gather economic data in support of cases before the courts; 2) Conduct general studies of labor relations to guide the board in formulating decisions and policies; and 3) Research the history of labor relations so that the board could educate itself, the courts, Congress, and the public about labor relations. The first function proved critical to the survival of the NLRB. It was the Economic Division's data and analysis, more than then NLRB's legal reasoning, which proved critical in persuading the Supreme Court to sustain the Wagner Act in NLRB v. Jones & Laughlin Steel. The Court even cited several Economic Division studies in its decision. In the wake of Jones & Laughlin Steel, many labor relations experts outside the agency concluded that economic analysis was "an accepted fact" essential to the proper functioning of the agency. The Economic Division did, too. It asked Madden to pair an economist with an attorney in every important case, and prepared outline of the economic data needed to support each case in case it went before the courts.
During his time on the NLRB, Madden was often opposed by the American Federation of Labor, which believed that Madden was using the NLRA and the procedures and staff of the NLRB to favor the AFL's primary competitor, the Congress of Industrial Organizations. The NLRB and NLRA were also under intense pressure from employers, the press, congressional Republicans, and conservative Democrats.
The NLRB's Economic Division proved critical in pushing for a congressional investigation into employer anti-union activities, and ensuring that investigation was a success. The Economic Division was deeply aware of employer use of labor spies, violence, and company unions to thwart union organizing, and quietly pressed for a congressional investigation into these and other tactics. Senator Robert M. La Follette Jr. took up the suggestion, on June 6, 1936, the Senate Committee on Education and Labor established a Subcommittee Investigating Violations of Free Speech and the Rights of Labor chaired by La Follette. Better known as the "La Follette Committee", the subcommittee held extensive hearings for five years and published numerous reports. The committee uncovered extensive evidence of millions of company dollars used to pay for spies and fifth columnists within unions, exposed the culpability of local law enforcement in acts of violence and murder against union supporters, revealed the wide extent of illegal blacklisting of union members, and exposed the use of armed strikebreakers and widespread stockpiling of tear gas, vomit gas, machine guns, mortars, and armor by corporations to use against strikers. Some of the evidence the committee used was provided by the Economic Division, and the investigation proved critical for a time in defending the agency from business and congressional attack.
The biggest issue the NLRB faced was constitutional. The Justice Department and NLRB legal staff wanted the Supreme Court to rule as quickly as possible on the constitutionality of the NLRA. But the board and Justice Department also realized that the Court's Lochner era legal philosophy made it unlikely for the Court to uphold the Act. Subsequently, Madden strove to resolve minor cases before they could become court challenges, and worked to delay appeals as long as possible until the best possible case could be brought to the Court. This legal strategy paid off. The Supreme Court upheld the NLRA in National Labor Relations Board v. Jones & Laughlin Steel Corporation, 301 U.S. 1. Afterward, Madden continued to strategically guide the NLRB's legal efforts to strengthen the federal courts' view of the NLRA and the board's actions. Because of the efforts of Madden and NLRB General Counsel Charles H. Fahy, the Supreme Court reviewed only 27 cases between August 1935 and March 1941, even though the board had processed nearly 5,000 cases since its inception. The Supreme Court enforced the NLRB's rulings in 19 cases without modifying them, enforced them with modification in six more, and denied enforcement in two cases. Additionally, the board won all 30 injunction and all 16 representation cases before the lower courts, a rate of success unequalled by any other federal agency.
AFL opposition to the "Madden Board" grew after decisions in Shipowners' Ass'n of the Pacific Coast, 7 NLRB 1002, enf'd ''American Federation of Labor v. National Labor Relations Board, 308 U.S. 401 , and American Can Co''., 13 NLRB 1252 .
The AFL began pushing for an investigation into the NLRB, and this investigation led to allegations of communist influence within the agency. In June 1938, the House Un-American Activities Committee heard testimony from AFL leader John P. Frey, who accused Madden of staffing the NLRB with communists. The allegations were true, in at least one case: Nathan Witt, the NLRB's executive secretary and the man to whom Madden had delegated most administrative functions, was a member of the Communist Party of the United States. These allegations and discoveries significantly damaged the agency's support in Congress and with the public.
A second investigation into the NLRB led to organizational changes at the board. On July 20, 1939, Republicans and conservative Democrats formed a coalition to push through the House of Representatives a resolution establishing a Special Committee to Investigate the National Labor Relations Board, chaired by conservative, anti-labor Rep. Howard W. Smith. On March 7, 1940, the Smith Committee proposed legislation to abolish the NLRB, reconstitute it, and radically amend the NLRA. President Roosevelt opposed the bill, although he conceded that perhaps the board's membership should be expanded to five from three. The Smith bill won several early tests in the House, which also voted to substantially cut the NLRB's budget. Smith won a vote in the House Rules Committee permitting him to bring his bill to the floor for a vote. In an attempt to defuse the legislative crisis, Madden fired 53 staff and forced another five to resign, and decentralized the NLRB's trial process to give regional directors and field agents more authority. But the House still passed the Smith bill by a vote of 258 to 129 on June 7, 1940. To protect the NLRB, Roosevelt convinced Senator Elbert D. Thomas, Chairman of the Senate Committee on Education and Labor, to hold no hearings or votes on the bill, and the legislation died.
The Smith Committee investigation had a lasting effect on labor law in the U.S., and was the basis for the Taft–Hartley Act of 1947. Madden's term on the NLRB came to an end after just four years. On November 15, 1940, President Roosevelt nominated Harry A. Millis to the NLRB and named him chairman, and nominated Madden to a seat on the U.S. Court of Claims.