NLRB Enforcement Priorities

In enforcing the law against unfair labor practices, a key part is performed by the NLRB General Counsel, who plays a role analogous to that of a district attorney in a typical criminal law regime.  A party who accuses an employer or a union of committing an unfair labor practice must file a charge with the General Counsel in the appropriate regional office.  The General Counsel then decides whether there are sufficient grounds for prosecution and, if so, issues a complaint against the accused, which then commences an enforcement process that, unless settled with the party, starts with an administrative law judge decision, which is then reviewed by the five-member Board and then is ultimately enforced in the federal courts.  If the General Counsel decides not to issue a complaint, as in about two-thirds of all charges, the charging party has no further legal recourse under the National Labor Relations Act.  When exercised responsibly and with restraint, this unchecked power of the General Counsel can serve to eliminate frivolous and/or meritless cases.  However, when exercised in a one-sided manner, the General Counsel’s power can tilt the balance in favor of one party over another.  Labor unions often take advantage of the ease of filing a charge by filing them at key times—e.g., contract negotiations, during a strike or inside game, during union organizing—to add to their leverage against employers.  In those situations, unions have little to lose from taking such actions and employers often complain about the General Counsel’s office in certain regions being particularly amenable to such tactics.  For small employers, who do not have the benefit of inside counsel and who cannot easily afford outside counsel, a “don’t fight city hall” mentality often leads to a quick settlement.  An additional area of concern is that of efforts by the General Counsel to “shape” the labor laws by issuing complaints against employers whose practices comply with well-settled law in order to achieve a change in the Board’s interpretation of the law.  HR Policy Association believes the enforcement of the labor laws works best when the General Counsel respects the need for stability and predictability in the law and exercises the unchecked power of issuing complaints in an even-handed manner.