Magazine article Academe

Navigating Troubled Waters at the NLRB

Magazine article Academe

Navigating Troubled Waters at the NLRB

Article excerpt

The author of an AAUP amicus brief on private-sector faculty unions explains the legal and political constraints on effective NLRB protection of the right to collective bargaining.

Since the US Supreme Court's infamous NLRB v. Yeshiva University decision in 1980, faculty members at private colleges and universities have confronted major roadblocks to unionization. Yeshiva labels most tenure-track faculty as "managerial," excluding them from the right to unionize under the National Labor Relations Act (NLRA). Now, more than thirty years later, the National Labor Relations Board (NLRB) has signaled its interest in opening greater possibilities for faculty unionization. In the pending case of Point Park University, the NLRB has taken the unusual step of inviting amicus briefs to guide it in considering how to interpret Yeshiva. I found this invitation tantalizing and exciting, particularly in my role in drafting an amicus brief on behalf of the AAUP. The NLRB's willingness to consider new interpretations of legal precedents reflects its liberal character under the Obama administration. At the same time, though, the NLRB's independence and authority are constrained by Congress and the courts.

Institutional tensions between the NLRB and the legislative and judicial branches are long-term problems. But some of the recent difficulties reflect the current downward spiral of politics, including overt hostility by Republicans in the Congress toward the NLRB. The board has struggled to function through the political wrangling that has leftit with fewer than its full five-member complement. The fight culminated in the recent legal showdown over President Obama's January 2012 recess appointments. The NLRB's current lightning-rod status is all the more significant for academia as it has important implications for the eventual outcome of the Point Park University case.

The NLRB and the Courts

The NLRB is the independent federal agency with responsibility for enforcing the National Labor Relations Act. It carries out this function through processes that protect employee rights and enable employees to choose whether to be represented by a union. The fieldwork of the NLRB is done in its regional offices located throughout the United States. The five-member board is an appellate body reviewing regional office decisions in representation cases and decisions by administrative law judges in unfair labor practice cases. Board members are nominated by the president and confirmed by the Senate for five-year terms.

The NLRA itself creates the strained relationship between the NLRB and the federal courts. On the one hand, Congress gave the NLRB authority to make national policy by interpreting the NLRA. Labor organizations file petitions in a regional office of the NLRB to hold an election in a described group or "bargaining unit" of employees of a particular privatesector employer. If the union receives a majority vote, the NLRB officially certifies the union as the exclusive bargaining representative of the employees. Individuals or groups claiming that employers or unions have committed unfair labor practices must file a charge with an NLRB regional office, not in the courts. On the other hand, the NLRB has no enforcement power. Individuals, unions, employers-and even the NLRB-seeking to enforce decisions by the five-member board must go to one of the twelve federal circuit courts of appeals. As the various circuit courts decide cases presenting similar legal issues, they may reach differing conclusions about whether the NLRB has correctly interpreted the NLRA.

In general, the circuit courts tend to be more politically conservative than the NLRB. Although the courts repeat the mantra that they defer to the NLRB's expertise on national labor policy, they often refuse to enforce the NLRB's decisions because they disagree with the board's interpretation of the NLRA. When two or more circuit courts of appeals disagree over the board's interpretation, it becomes more likely that the US Supreme Court will grant review of a case raising that legal issue. …

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