National Labor Relations Board — Union Elections & Labor Relations

The National Labor Relations Board is the independent federal agency that governs the fundamental right of private-sector workers to organize, bargain collectively, and strike — and in 2025, it became one of the most fought-over independent agencies in the country when the Trump administration fired the NLRB General Counsel and a board member in what became a test case for presidential removal power over independent agencies. Created by the National Labor Relations Act of 1935 (NLRA, 29 U.S.C. § 151 et seq. — the "Wagner Act"), the NLRB has two principal functions: conducting union representation elections to determine whether workers want union representation, and investigating and prosecuting unfair labor practice (ULP) charges against both employers and unions. The NLRB's five-member board has for-cause removal protection; the General Counsel — a separate Senate-confirmed position with independent prosecutorial authority over ULP charges — has been the subject of particularly sharp removal controversies because of the GC's ability to set enforcement priorities without a board vote. The NLRB's case law, built through adjudication rather than rulemaking, defines the boundary between protected concerted activity and unprotected conduct for the 80 million private-sector workers covered by the NLRA.

Legal Authority

• 29 U.S.C. § 151 — National Labor Relations Act (NLRA) § 1; findings and policy; declares that the denial of employees' rights to organize burdens commerce and that federal protection of collective bargaining serves the public interest
• 29 U.S.C. § 153 — Establishes the NLRB as an independent agency with 5 Senate-confirmed board members serving staggered 5-year terms with for-cause removal protection; separates the General Counsel as an independent prosecutorial officer
• 29 U.S.C. § 158 — Unfair labor practices; prohibits employer ULPs (interfering with organizing, dominating unions, discriminating against union activity) and union ULPs (secondary boycotts, featherbedding, excessive dues)
• 29 U.S.C. § 159 — Representatives and elections; authorizes NLRB to conduct representation elections; defines bargaining units; establishes the certification process for exclusive bargaining representatives
• 29 U.S.C. § 160 — Prevention of unfair labor practices; grants NLRB authority to issue cease-and-desist orders, order reinstatement with back pay, seek injunctive relief, and petition courts to enforce board orders

Key Mechanics

The NLRB's two core functions operate through distinct processes. For representation elections: a union files a petition with the regional office supported by authorization cards from at least 30% of the proposed bargaining unit; the regional director determines the appropriate bargaining unit (who is eligible to vote) and schedules an election; if the union wins a majority of votes cast, the regional director certifies the union as the exclusive bargaining representative; the employer must then bargain in good faith. For unfair labor practice (ULP) charges: a party files a charge with the regional office; the regional director investigates; if there is merit, the regional director issues a complaint and the case proceeds before an ALJ; ALJ decisions are appealable to the five-member Board; Board orders are enforced by federal courts of appeals. The NLRB cannot self-enforce — it must petition courts to enforce Board orders. The General Counsel (GC) has independent authority over ULP prosecution — the GC decides whether to issue a complaint, which enforcement priorities to pursue, and which legal positions to take before ALJs, without needing Board approval. This GC independence has made the position a site of political conflict: the Trump administration's 2025 firing of GC Jennifer Abruzzo raised presidential removal authority questions that were pending before federal courts as of mid-2026.

Organization & Structure

The NLRB's structure separates adjudicative from prosecutorial functions: the five-member Board decides cases on appeal from administrative law judges (ALJs) who conduct hearings on ULP charges and election objections; the General Counsel independently investigates and prosecutes ULP charges and oversees the regional offices. This separation is a constitutional design feature — the GC acts as prosecutor, the Board as adjudicator, with the D.C. Circuit as final appellate authority. The 26 regional offices receive and process charge filings, conduct representation elections, and investigate ULP charges; regional directors have authority to issue complaints and seek injunctions.

Key Functions & Authorities

Union representation elections — when a majority of employees in an appropriate bargaining unit sign authorization cards (or petition for an election), the NLRB regional director determines whether an election is appropriate, defines the bargaining unit, and schedules a secret-ballot election. If a majority votes for union representation, the NLRB certifies the union as exclusive bargaining representative. The employer must then bargain in good faith with the union. Obama-era "quickie election" rules (2015) shortened the election timeline to approximately 25 days; Trump reversed them in 2020; Biden restored them in 2023. The pace of union elections — and who votes in them — is one of the most consequential regulatory choices the NLRB makes.

Unfair labor practice proceedings — the NLRA prohibits both employer and union ULPs. Common employer ULPs include: interfering with employees' Section 7 rights (the right to engage in concerted activity for mutual aid or protection); discriminating against employees for union activity; refusing to bargain in good faith; and retaliating against employees who file NLRB charges. Common union ULPs include: secondary boycotts; coercing employees who do not want union representation; and refusing to bargain in good faith. The GC issues ULP complaints after investigation; if the parties do not settle, an ALJ hears the case; the Board reviews ALJ decisions; the circuit courts review Board decisions. The NLRB can order reinstatement, back pay, and cease-and-desist orders but cannot impose punitive damages.

Section 7 protected concerted activity — the NLRA's Section 7 protects not just formal union activity but any "concerted activity for mutual aid or protection" — including workplace conversations about wages and working conditions, social media posts about working conditions, and coordinated work refusals. The NLRB's GC has used Section 7 to challenge non-disclosure agreements that restrict discussion of wages, policies banning discussion of working conditions, and overbroad social media policies. The scope of Section 7 protection has expanded and contracted with administration changes; the Biden GC Jennifer Abruzzo issued landmark guidance on "captive audience" meetings (mandatory employer speeches before union elections), which the Trump GC reversed.

Micro-units and bargaining unit determinations — the NLRB's determination of the "appropriate bargaining unit" (which employees vote together) profoundly affects union organizing outcomes. More homogeneous units (a single department or craft) are easier for unions to win; employer-preferred larger units dilute organizing support. The Obama NLRB's "micro-unit" doctrine allowed unions to organize smaller groups; the Trump NLRB's PCC Airfoils and Boeing decisions expanded employer ability to force broader units. Biden-era decisions swung back. Bargaining unit doctrine is among the most politically contested areas of NLRB law.

Implementing Regulations

The NLRB's procedural rules governing ULP proceedings and representation elections are codified at 29 CFR Part 102 — Rules and Regulations (168 sections across 22 subparts, implementing 29 U.S.C. §§ 151–169).

Unfair labor practice charge procedure (Subpart C, 48 sections):

• § 102.10 — Where to file: ULP charges must be filed with the Regional Director of the region where the alleged ULP occurred (or where the person affected works); each NLRB region covers a defined geographic area and has an office where charges are received and investigated
• § 102.11 — Form: charges must be in writing, signed, and sworn or certified under penalty of perjury; the NLRB Form 501 is the standard charge form; electronic filing is available through the NLRB's case management system
• § 102.12 — Contents: charges must name the respondent (employer or union); identify the persons affected; describe the unfair labor practice; and cite the specific NLRA section allegedly violated (§ 8(a) for employer ULPs, § 8(b) for union ULPs)
• § 102.15 — Complaint issuance: if the Regional Director's investigation finds merit, the GC issues a formal complaint; the complaint sets out the specific ULP allegations and schedules a hearing before an NLRB Administrative Law Judge
• § 102.19 — Appeal from refusal: if the Regional Director declines to issue a complaint (the most common outcome — most charges are dismissed or settled), the charging party may appeal to the General Counsel in Washington within 14 days; the GC's decision on appeal is final and not subject to further Board review
• § 102.20 — Answer: respondents must file a written answer within 14 days; any allegation not specifically denied is deemed admitted

Representation election procedure (Subpart D, 13 sections): election petitions go to the Regional Director who schedules a pre-election hearing; the Regional Director determines the appropriate bargaining unit, the eligibility period for voter eligibility, and the election date; parties may seek Board review of unit determinations on a discretionary basis.

EAJA fees (Subpart T, 13 sections): eligible small entities or individuals who prevail in NLRB adjudications may recover attorney fees and other expenses when the NLRB's position was not substantially justified; applications must be filed within 30 days of the final Board order; the NLRB's Chief ALJ adjudicates EAJA applications.

How It Affects You

If you are a citizen or voter: NLRB decisions shape the balance of power between workers and employers in the private sector — whether workers can effectively organize, what employers can say during union campaigns, and whether striking workers have legal protection. High-profile organizing campaigns at Amazon, Starbucks, Apple retail, and other large employers have made NLRB proceedings visible to millions of workers considering their options. The strength of the NLRB's enforcement posture directly affects union density, which research links to wage distribution and economic inequality.

If you are a business or regulated entity: If you employ workers covered by the NLRA (virtually all private-sector employers outside railroad/airline industries), your labor relations practices are subject to NLRB scrutiny. Employer handbook policies (on social media, confidentiality, and workplace discussions), responses to organizing campaigns, and bargaining conduct after certification are all potential ULP exposure areas. Non-union employers seeking to maintain union-free status must be aware of what communications and actions the NLRB considers permissible during organizing campaigns; violations can result in bargaining orders that bypass the election process entirely.

If you work at a federal agency: Federal employees are not covered by the NLRA; federal sector labor relations are governed by the Civil Service Reform Act (5 U.S.C. §§ 7101-7135) and administered by the Federal Labor Relations Authority (FLRA) — a parallel independent agency. However, NLRB decisions on private-sector labor law affect federal agency contracting relationships with unionized contractors. NLRB coordinates with DOL on FLSA/wage/hour enforcement overlaps, and with NLRB regional offices that share federal office space with other labor agencies.

If you are a journalist, researcher, or policy analyst: NLRB case statistics — unfair labor practice charges filed, election petitions, election results — are published in the NLRB annual report. The NLRB's case management system (NxGen) tracks case processing timelines. GC memoranda (publicly issued policy guidance from the General Counsel) are available on nlrb.gov and are the primary signal of current enforcement priorities. Board decisions are published and searchable; significant decisions from the last 15 years show the doctrinal swings between administrations.

Recent Developments

• 2025 — President Trump fired NLRB General Counsel Jennifer Abruzzo and Board Member Gwynne Wilcox on January 27, 2025; a federal district court ordered Wilcox reinstated, holding the NLRA's for-cause removal protection constitutional; the administration appealed and obtained a stay from the Supreme Court (6-3, May 2025) declining to order Wilcox's reinstatement pending full review — setting up a major removal-power precedent that could modify or overrule Humphrey's Executor.
• 2023 — The Biden NLRB's Cemex Construction decision revived the "bargaining order" remedy for employer ULP misconduct during organizing campaigns, allowing the Board to certify a union without an election if the employer's misconduct makes a fair election impossible — the first major expansion of this remedy since the 1960s.
• 2023 — Amazon Labor Union (ALU) won the first-ever union election at an Amazon facility (Staten Island JFK8, April 2022), triggering representation cases at additional warehouses; Starbucks Workers United organized over 400 stores; NLRB proceedings involving both companies generated dozens of ULP cases involving allegations of employer interference.
• 2022 — The Biden NLRB General Counsel issued Memorandum 22-06 declaring captive audience meetings (mandatory employer meetings before union elections without the right to leave) presumptively unlawful — a significant shift in doctrine that employers challenged; the policy was reversed by the Trump GC in 2025.
• 1947 — The Taft-Hartley Act amended the NLRA, adding union ULP provisions, prohibiting closed shops, allowing states to enact right-to-work laws (Section 14(b)), and establishing the 80-day "cooling-off" period for national emergency strikes — fundamentally restructuring the labor law framework established by Wagner in 1935 and creating the basic NLRB structure that persists today.