National Labor Relations Act & Collective Bargaining

The National Labor Relations Act (NLRA, 1935) — also called the Wagner Act — is the foundational federal law governing union organizing and collective bargaining in the private sector. It guarantees most private-sector workers the right to form unions, engage in collective bargaining, and take collective action (including strikes), and prohibits employers from interfering with those rights ("unfair labor practices"). The National Labor Relations Board (NLRB) — a five-member independent agency — enforces the law, conducts union elections, and adjudicates unfair labor practice charges. About 10% of U.S. workers are union members (2025), down from over 30% in the 1950s — a decline driven by manufacturing jobs moving overseas, the growth of service industries, legal restrictions from the Taft-Hartley Act (1947), and 27 states enacting "right-to-work" laws that prohibit mandatory union membership or dues as a condition of employment. Union organizing has seen a notable resurgence at Amazon, Starbucks, and in the entertainment industry since 2021, with NLRB election petition filings rising significantly. The NLRB's own authority has been contested through litigation, with the Supreme Court's 2024 Starbucks v. McKinney decision limiting the Board's ability to seek preliminary injunctions to stop anti-union activity during investigations.

Current Law (2026)

Legal Authority

• 29 U.S.C. § 151 — Findings and declaration of policy (inequality of bargaining power between employees and employers burdens commerce; policy of the United States to encourage collective bargaining and protect workers' right to organize)
• 29 U.S.C. § 152 — Definitions (employee, employer, labor organization, commerce, unfair labor practice, supervisor — key exclusions for agricultural laborers, domestic workers, independent contractors, and supervisors)
• 29 U.S.C. § 153 — National Labor Relations Board (establishment; 5 members; 5-year terms; General Counsel appointed separately with authority over unfair labor practice complaints)
• 29 U.S.C. § 157 — Rights of employees (right to self-organization, to form/join/assist labor organizations, to bargain collectively through representatives, to engage in concerted activities for mutual aid or protection, and to refrain from any of these activities)
• 29 U.S.C. § 158 — Unfair labor practices (employer ULPs: interference with § 157 rights, domination of unions, discrimination for union activity, retaliation for filing charges, refusal to bargain; union ULPs: coercion of employees, causing discrimination, refusal to bargain, secondary boycotts, excessive fees, featherbedding)
• 29 U.S.C. § 159 — Representatives and elections (exclusive representation by majority-selected union; NLRB-conducted secret ballot elections; appropriate bargaining unit determination; election bar rules)
• 29 U.S.C. § 160 — Prevention of unfair labor practices (NLRB complaint process; hearings before administrative law judges; Board orders; federal court enforcement and review; injunctive relief under § 10(j) for serious ULPs)
• 29 U.S.C. § 163 — Right to strike preserved (nothing in the Act limits the right to strike, except as specifically provided)
• 29 U.S.C. § 164(b) — Right-to-work provision (states may enact laws prohibiting agreements that require union membership as a condition of employment)

Implementing Regulations (29 CFR Parts 100-103)

• 29 CFR Part 101 — Statements of Procedure (the NLRB's plain-English description of how its cases actually move, required to be published under the APA; 37 sections covering the full lifecycle of both ULP and representation cases):

  • § 101.2 — Charge filing: a ULP charge is filed in writing with the Regional Office serving the area where the violation occurred; it may be filed by an employee, union, or employer; the charge must describe the conduct alleged to violate the NLRA with enough specificity for the Regional Director to investigate; there is no filing fee; the charge must be filed within 6 months of the alleged violation (§ 10(b) of the NLRA)
  • § 101.4 — Investigation: a field examiner from the Regional Office conducts an investigation — interviewing witnesses, reviewing documents, and assessing whether the evidence would establish a violation; most charges (approximately 65-70%) are dismissed at this stage or settled informally without formal complaint issuance
  • § 101.8 — Formal complaint: if the Regional Director finds merit, a formal complaint is issued and served on the respondent (employer or union); the complaint identifies each alleged ULP and schedules a hearing; at this stage parties may still settle — an NLRB settlement typically involves a posted notice to employees, reinstatement if the case involves discharge, and in some cases backpay
  • § 101.10 — Hearings: the formal hearing is open to the public and conducted in the region where the charge originated; a designated ALJ presides; the General Counsel's regional staff presents the government's case; the respondent may be represented by counsel; evidentiary rules are relaxed (formal rules of evidence do not apply); the hearing is transcribed verbatim
  • § 101.11 — ALJ's decision: after the hearing, the ALJ prepares a written decision with findings of fact, legal conclusions, and a recommended remedial order; the decision is served on all parties and the Board; any party may file exceptions with the Board within 28 days of the ALJ's decision
  • § 101.12 — Board decision and order: if exceptions are filed, the Board reviews the ALJ's decision de novo on issues of law and with deference to ALJ credibility findings; Board decisions are rendered by a panel of the three participating members; the Board issues its own written decision and order; the order may direct the respondent to cease and desist, post a notice, reinstate employees with backpay, or bargain in good faith; if no exceptions are filed, the ALJ's decision automatically becomes the Board's order
  • § 101.13 — Compliance: after the Board order issues, the Regional Director contacts the respondent to obtain voluntary compliance; if the respondent agrees, the remedy is implemented without court involvement (the norm in the majority of cases); if the respondent refuses or disputes the remedy, the Regional Office pursues enforcement in the courts
  • § 101.14 — Judicial review: if the respondent does not comply voluntarily, the Board may petition the appropriate U.S. Court of Appeals to enforce its order; the respondent may simultaneously file a petition for review challenging the order's validity; the Court of Appeals reviews the Board's factual findings for "substantial evidence" support on the record as a whole — a deferential standard; the Court of Appeals' judgment is final except for Supreme Court review
  • § 101.16 — Backpay proceedings: when a Board order requires backpay but the amount is disputed (e.g., because the employee had interim earnings or failed to mitigate), the Regional Director files a supplemental compliance specification; the respondent must answer within 21 days; if disputed, the case returns to an ALJ for a hearing limited to the backpay computation; cumulative NLRB backpay awards run approximately $40-50 million per year nationally, concentrated in cases involving unlawful discharge of organizing leaders

• 29 CFR Part 102 — Rules and Regulations, Series 8 (168 sections — the NLRB's comprehensive procedural code governing ULP proceedings and representation election cases; the practical machinery through which NLRA rights are enforced):

  • Subpart C — Unfair Labor Practice Procedure (§§ 102.9–102.59): a ULP charge is filed with the Regional Director for the region where the violation occurred (§ 102.10); must be signed and sworn (§ 102.11) within 6 months of the alleged violation (29 U.S.C. § 160(b) — the limitations period); charge must briefly describe the conduct alleged (§ 102.12); if the Regional Director finds merit, a formal complaint issues (§ 102.15) with a hearing scheduled ≥14 days from service; respondent must file an answer within 14 days (§ 102.20) — failure to deny is deemed admission; if the Regional Director declines to issue a complaint, the Charging Party may appeal to the General Counsel within 14 days (§ 102.19); the ALJ conducts hearing, issues a recommended decision; exceptions filed with the Board; Board issues final order enforceable in the federal Court of Appeals
  • Subpart D — Representation Case Procedure (§§ 102.60–102.72): representation petition filed with Regional Director; requires a 30% showing of interest (authorization cards); Regional Director determines appropriate bargaining unit; Excelsior list — within 2 business days of election direction, employer must provide names and contact information (including personal email and phone where available) of all eligible voters; secret-ballot election conducted by NLRB; majority of votes cast determines outcome; losing party may file objections within 7 days of election
  • Subpart H — Injunctive Relief Procedure (§ 102.87–102.90): Regional Director may seek § 10(j) injunctive relief in federal district court to temporarily remedy serious ULPs (e.g., unlawful discharge of union organizers) while the case is pending before the Board; the Board (not the Regional Director) must authorize § 10(j) petitions; relief may include reinstatement pending outcome; standard is "just and proper" — considerably more deferential to the Board than the traditional injunction standard after Starbucks v. McKinney (2024), which raised the bar by requiring district courts to apply the traditional four-factor test
  • Subpart T — Awards of Fees and Other Expenses: NLRB may award attorney fees and other expenses to prevailing small businesses in NLRB proceedings under the Equal Access to Justice Act if the government's position was not substantially justified
  • Subpart W — Misconduct: procedures for sanctioning attorneys or representatives who engage in misconduct before the NLRB — including suspension from practice and referral to state bar

• 29 CFR Part 103 — Other Rules: jurisdictional standards, representation election procedures, and joint employment — Part 103 is where the NLRB sets threshold rules that determine who gets the benefit of NLRA protection and how elections are run. Key provisions:

  • § 103.1 — Colleges and universities: the NLRB exercises jurisdiction over private colleges and universities whose gross annual revenue exceeds $1 million; below that threshold, the Board declines jurisdiction, leaving employee organizing at small private institutions without federal protection
  • § 103.2 — Symphony orchestras: jurisdiction over symphony orchestras with annual revenues above $1 million; the same threshold recognizes the unusual employer-employee structure of orchestras and ensures professional musicians can organize
  • § 103.3 — Horseracing and dogracing industries: the Board declines jurisdiction over these industries when state regulation provides comparable labor relations oversight — a rare carve-out from the NLRA's otherwise sweeping coverage
  • § 103.20 — Strikes and picketing at health care institutions: unions must give 10-day advance notice before striking or picketing at a health care institution — longer than the standard notice period — allowing hospitals to arrange continuity of patient care; the notice restarts if the strike doesn't begin within the notice window
  • § 103.21 — Voluntary recognition bar: when an employer voluntarily recognizes a union based on card check authorization (without an election), a recognition bar prevents a decertification petition or rival union petition for a "reasonable period" (typically one year) to allow the parties to negotiate a first contract; the Board has modified the duration and conditions of this bar multiple times across administrations
  • § 103.30 — Appropriate bargaining units in the health care industry: defines 8 appropriate bargaining units for acute care hospitals — registered nurses; physicians; all professionals except registered nurses and physicians; technical employees; skilled maintenance employees; business office clerical employees; guards; and all other nonprofessional employees — limiting the fragmentation of hospital workforces into dozens of micro-units that would complicate labor relations
  • § 103.40 — Joint employer standard: an entity is a joint employer of another employer's employees if the two entities share or codetermine the employees' essential terms and conditions of employment — defined as wages, benefits, hours, hiring, discipline, assignment, and supervision; this standard was significantly expanded by the NLRB's 2023 final rule (89 FR 63026) to cover "indirect" control and "reserved but unexercised" authority, capturing more franchise, staffing agency, and subcontracting relationships; the expanded rule was challenged in federal court and its current enforceability is contested

  The joint employer rule in § 103.40 is the most commercially significant provision in Part 103 — it determines whether a franchisor (McDonald's, for example) or a company using a staffing agency is a co-employer of those workers with collective bargaining obligations and ULP exposure. The 2023 expansion reversed a 2020 Trump-era rule that required "direct and immediate" control; the Biden-era rule was partially invalidated by the Eastern District of Texas in 2024; the Trump administration's NLRB withdrew the 2023 rule in 2025, reverting to a more restrictive standard. The § 103.30 health care bargaining units represent a long-stable compromise from 1989 rulemaking that ended years of case-by-case litigation over hospital unit structure. Recent rulemakings: 89 FR 63026 (August 2023) — expanded joint employer rule; 89 FR 11740 (February 2024) — Rule vacated by E.D. Tex.; withdrawal announced 2025.

• 29 CFR Part 406 — Reporting by Labor Relations Consultants Under the LMRDA: a separate but related law — the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA, 29 U.S.C. § 401 et seq.) — requires disclosure when employers hire consultants to run anti-union campaigns, implementing what is colloquially called the "persuader rule":

  • § 406.2 — Agreement and activities report: every person who, as a direct or indirect party to an agreement with an employer, undertakes activities where an object is to persuade employees regarding their rights to organize or bargain collectively, must file Form LM-20 (Agreement and Activities Report) within 30 days of entering the agreement; this covers consultants hired to give speeches, distribute materials, create talking points for supervisors, or design campaigns to discourage unionization — the reporting obligation attaches when the consultant agrees to undertake persuader activities, not just when they're paid
  • § 406.3 — Receipts and disbursements report: any consultant required to file an LM-20 must also file Form LM-21 (Receipts and Disbursements Report) annually reporting all revenue received from labor-management activities; together, the LM-20 and LM-21 create a public record of what employers are spending on consultants and what those consultants are doing
  • § 406.5 — Exceptions for "advice only": consultants who merely give advice to employers without direct contact with employees or employee communications are exempt from reporting; the scope of this "advice exception" has been the central controversy — does drafting scripts for supervisors to read to employees constitute "persuader" activity (triggering reporting) or "advice" (exempt)? DOL's 2016 final rule significantly narrowed the advice exception to require reporting for consultant-authored materials read by supervisors; courts partially blocked that rule; DOL under Trump reverted to a broader advice exception; DOL under Biden re-expanded the reporting obligation; the current scope of the persuader reporting requirement depends on current administration guidance
  • § 406.6 — Relationship to NLRA § 8(c): Section 8(c) of the NLRA protects an employer's right to express views about union organizing that are not coercive threats or promises of benefits; Part 406 does not restrict what employers or consultants may say — it only requires disclosure of the financial relationships; a consultant can legally urge employees to vote against a union (as long as not coercive) but must disclose that engagement

  The persuader reporting requirement was designed to inform workers that their employer has hired outside professionals to influence their organizing decisions — creating transparency about anti-union campaigns that workers may not know are orchestrated by paid consultants rather than spontaneous management expression. LM-20 and LM-21 forms are publicly available on the DOL's OLMS (Office of Labor-Management Standards) website, allowing employees and union organizers to research what consultants their employer is using and how much is being paid. The practical effect of reporting requirements is modest — employers can still hire consultants freely; they must simply disclose the relationship.

How It Works

The National Labor Relations Act is the foundational statute governing labor-management relations in the American private sector. It establishes the right of employees to organize, form unions, and bargain collectively with their employers — and it created the National Labor Relations Board to enforce those rights.

Section 7 gives every covered employee the right to self-organize; form, join, or assist labor organizations; bargain collectively through representatives of their own choosing; engage in concerted activities for mutual aid or protection; and — crucially — to refrain from any of these activities. That last clause, added by Taft-Hartley in 1947, protects employees who don't want to join a union as firmly as those who do. "Concerted activity" extends beyond formal union organizing: two or more employees discussing wages, complaining about working conditions, or posting on social media about workplace issues can all be protected activity. When employees want union representation, they collect authorization cards from at least 30% of the proposed bargaining unit (organizers typically seek 50%+), file a petition with the NLRB, and the Board conducts a secret-ballot election. If a majority votes for the union, the NLRB certifies it as exclusive bargaining representative for all employees in the unit — members and non-members alike. Recent NLRB rules have shortened the election timeline to as little as 10–21 days from petition to vote, though rules shift with administrations.

Once certified, the union and employer must bargain in good faith over "mandatory" subjects — wages, hours, and terms and conditions of employment. Neither must agree or concede, but both must meet at reasonable times and execute a written contract if they reach agreement; failing to bargain in good faith is an unfair labor practice. Employer ULPs include surveilling union meetings, threatening plant closure, interrogating employees about union sympathies, firing organizers, and refusing to bargain. Union ULPs include coercing employees who don't want to join, engaging in secondary boycotts (pressuring neutral employers), and charging excessive initiation fees. Under Section 14(b) (added by Taft-Hartley), states may pass "right-to-work" laws barring union security agreements — as of 2026, 27 states have done so, meaning employees in those states cannot be required to pay dues even in a unionized workplace. In non-right-to-work states, unions can negotiate union shop agreements requiring dues payment, creating what critics call a "free rider" problem when employees receive representation benefits without contributing. The NLRA preserves the right to strike but distinguishes economic strikers (who can be permanently replaced) from ULP strikers (who must be reinstated upon unconditional offer to return); lockouts are permitted as an employer economic weapon in certain circumstances.

How It Affects You

If your employer has policies restricting what you can discuss at work: Section 7 of the NLRA protects "concerted activity for mutual aid or protection" — which includes discussing wages and working conditions with coworkers. An employer rule that says "don't discuss your pay with colleagues" or "don't post about workplace issues on social media" is presumptively an unfair labor practice. This protection applies whether or not you're in a union and whether or not you're actively organizing. NLRB has found violations for overly broad confidentiality policies, social media policies, and even handbook provisions requiring employees to "represent the company positively." If your employer disciplines you for discussing wages or conditions with coworkers, that retaliation is a ULP — file a charge with the nearest NLRB regional office within 6 months of the violation.

If you're interested in organizing your workplace: The process: (1) gather interest — generally you need 30% of the proposed bargaining unit to sign authorization cards before petitioning, though most organizers aim for 60-70% before going public; (2) file a petition with the NLRB regional office; (3) the NLRB conducts a secret ballot election after resolving unit-appropriate issues; (4) if you win a majority, the NLRB certifies your union and the employer must bargain in good faith. The employer will typically mount a counter-campaign. Specific illegal employer conduct during organizing: threatening job losses, promising benefits to discourage organizing, interrogating employees about union sympathies, surveilling organizing activity. These are per se ULPs. The 2023 NLRB general counsel memo targets more employer conduct as presumptively unlawful. If you're fired for organizing activity, a ULP charge and request for interim reinstatement are your primary remedies.

If your employer refuses to bargain after you've formed a union: Refusal to bargain in good faith is itself an unfair labor practice. "Good faith" means meeting at reasonable times, providing relevant information, making proposals and counterproposals, and genuinely trying to reach agreement — it does not mean the employer must accept the union's proposals. Surface bargaining (going through the motions without intent to agree) is a ULP. File a charge with the NLRB within 6 months. The NLRB can issue cease-and-desist orders and, in egregious cases, a "bargaining order" requiring an employer to recognize a union even without an election.

If you're in a right-to-work state: Twenty-seven states prohibit "union security agreements" — clauses requiring union membership or equivalent dues payment as a condition of employment. In these states, you can work in a unionized bargaining unit without joining the union or paying dues. The union is still legally required to represent you in bargaining and grievances (the "duty of fair representation"), but this creates a free-rider dynamic that weakens unions financially in right-to-work states. If your union fails to represent you fairly — by acting arbitrarily, discriminatorily, or in bad faith — you have a claim against the union, which you'd file in federal court within 6 months.

State Variations

• Right-to-work: 27 states (mostly Southern and Western) have right-to-work laws under NLRA § 14(b); employees in these states cannot be required to pay union dues
• Public-sector bargaining: Not covered by the NLRA — governed by state laws. Some states grant robust public-sector bargaining rights; others prohibit it entirely
• State labor relations boards: Several states (California, New York, others) have their own labor boards that cover workers excluded from NLRA coverage
• Agricultural workers: Excluded from NLRA; some states (California's Agricultural Labor Relations Act) provide separate protections
• State mini-NLRA statutes: Some states extend NLRA-like protections to workers excluded from federal coverage

Pending Legislation

• HR 6141 — Fair Access to Justice for Union Members Act. Allows union members to pursue legal claims in outside forums without first exhausting internal union hearing procedures. Status: Introduced.
• S 3114 / HR 6139 — Union Members Right to Know Act. Requires unions to disclose employee rights regarding dues, fees, and consent requirements. Status: Introduced.
• HR 6142 — Ask the Union Members Act. Requires secret ballot votes for contract ratification and strike authorization. Status: Introduced.
• S 3766 / HR 7337 — Make Congress Drive Union Made Act. Requires congressional vehicle fleets to use union-made automobiles. Status: Introduced.

Recent Developments

• Trump fires NLRB Chair Wilcox; independence battle: President Trump removed NLRB Chair Gwynne Wilcox on January 27, 2025, before her term expired, leaving the Board with only two members (Democrat David Prouty and Republican Marvin Kaplan) and no quorum. The NLRB's organic statute protects members from removal except "for neglect of duty or malfeasance in office." District court initially declared the removal unlawful and void, but the Supreme Court declined to reinstate Wilcox in a 6-3 May 2025 emergency order, and the D.C. Circuit ultimately upheld the termination. The Trump administration's position — that presidents may remove independent agency members at will — directly challenges Humphrey's Executor (1935) and the constitutional design of the NLRB; the broader removal-power question is before the Court in Trump v. Slaughter (argued December 8, 2025). The quorum vacancy effectively shut the Board down for case decisions until new appointments restored a quorum.
• General Counsel fired: NLRB General Counsel Jennifer Abruzzo — the Biden-appointed GC who had pursued aggressive pro-labor enforcement including novel theories on captive audience meetings, non-compete agreements, and remedies — was fired in January 2025. The Trump GC reversed most of Abruzzo's guidance memos and shifted enforcement back toward a more employer-friendly posture. Pending cases and complaints filed under Abruzzo's tenure were reviewed and many were withdrawn.
• Joint employer rule withdrawn: The NLRB formally withdrew its 2023 joint employer rule in March 2026 after a federal court had already vacated it. The rule would have significantly broadened which entities are "joint employers" of the same workers — directly affecting franchising, staffing, and contractor relationships. The Trump administration's rollback restored the more limited pre-2023 standard that requires direct and immediate control over working conditions.
• Amazon/Starbucks organizing: Major union organizing campaigns continued — the Amazon Labor Union won a watershed election at a Staten Island warehouse in 2022, and barista organizing at Starbucks continued spreading to hundreds of locations. However, winning union elections is only the first step; achieving first contracts has proven difficult. Amazon contested the ALU election results extensively. As of 2025, union organizing at large employers remained active but contract wins lagged election wins significantly.
• In March 2026: NLRB formally withdrew its 2023 joint employer standard rule (withdrawn after vacatur by federal court).