How Proceedings Before the National Labor Relations Board Are Conducted

Advising employers on their rights and obligations in NLRB cases

The National Labor Relations Board (NLRB) is an independent U.S. government agency that enforces the National Labor Relations Act of 1935 (NLRA) with regard to collective bargaining, union elections, and unfair labor practices. The NLRA applies to union and non-union workplaces. The NLRB is governed by a board that consists of five members who act as an appellate judicial body and a General Counsel that acts as a prosecutor. Most cases are initially held by local administrative law judges who have offices across the United States.

At Gertsburg Licata, our Cleveland labor lawyers understand when and how claims can be brought before the NLRB. We understand the unique set of procedural and substantive rules that guide the litigation process. Our lawyers work with the NLRB, which has the authority to investigate complaints, foster settlements, rule on cases, and enforce its decisions. We have the experience to cooperate but also advocate for our clients. We bring both complaints on behalf of employers, and defend actions by unions and employees.

Understanding unfair labor practices

Unfair labor practices are specifically defined in the NLRA. Both employers and employees can be found liable for unfair labor practices.

Employers cannot:

  • Interfere with the creation of a union
  • Interfere with multiple employees who act together to seek enforcement of rights protected under the NLRA
  • Discriminate against employees who engage in union actions or concerted activities or who file charges with the NLRB
  • Refuse to negotiate with an authorized union

Unions cannot:

  • Coerce or force employees with regard to which bargaining representative they choose
  • Cause an employer to discriminate against an employee
  • Refuse to bargain with the employer
  • Engage in secondary boycotts
  • Require employees to pay excessive union dues
  • Require an employer to hire workers it doesn’t need
  • Picket for recognition for more than 30 days without petitioning for an election
  • Refuse to handle products from employers who are anti-union
  • Picket or strike at healthcare facilities without giving the proper notice

Some activities may not be violations of the NLRA. Other activities may be violations of other federal or state laws. At Gertsburg Licata, we advise employers on which acts may cause a union to object and which union acts employers have the right to complain about.

The NLRB process

There are many complicated stages to NLRB cases. In general, the following are the key stages:

  • Filing charges. Each case begins with the filing of a timely charge by the union or the employer.
  • Investigating the charge. The NLRB General Counsel investigates the charge and decides whether to file a formal complaint. Local regional directors file the formal complaints when authorized and when warranted. They can also dismiss charges that do not have merit. Charges do have to be properly substantiated. Appeals of dismissals can be submitted back to the office of the General Counsel. The decision of the General Counsel cannot be appealed further.The General Counsel can also direct that the unfair labor practice charge be handled through a viable collective bargaining agreement. Essentially, the General Counsel places the matter on hold until the grievance and arbitration part of the collective bargaining agreement is exhausted.
  • Issuing a complaint. If the regional director believes an unfair labor practice has occurred, it will issue a formal complaint setting out the details of the violation. The regional director will first try to settle the matter. If the case can’t be settled, it will proceed to a hearing before an administrative judge.
  • Interim injunctive relief. In appropriate cases, the General Counsel can request that a federal district court order injunctive relief to stop the unfair labor practice.
  • Hearings. Hearings in NLRB cases are conducted similarly to federal court trials. The General Counsel prosecutes the cases. The employer or union does have the right to use an attorney of its own choosing to defend the charges. Our labor attorneys are skilled at defending unfair labor practice charges before administrative law judges.
  • Appeals. The administrative law judge makes a recommendation, which can be appealed to the NLRB. Appeals of NLRB decisions can be taken to an appropriate Federal Court of Appeals. Appeals can ultimately be taken to the U.S. Supreme Court, which has the discretion to hear or refuse to hear the appeal.

The NLRB process is a complex process. At Gertsburg Licata, we understand the process, what rules of law apply, the rules of evidence, and the practical business issues.

Get help navigating the NLRB unfair labor practices process

Employers need to be represented by NLRB lawyers who have experience filing charges, responding to charges, and trying NLRB cases. Employees need to be represented by attorneys who understand the NLRA. At Gertsburg Licata, our labor lawyers are prepared to represent either employers or employees. Please call 216-573-6000 or complete our contact form to schedule a consultation.