National Labor Relations Board

The history of the National Labor Relations Board (NLRB) can be traced to enactment of the National Industrial Recovery Act in 1933. Section 7(a) of the act protected collective bargaining rights for unions,[6] but was difficult to enforce. The NLRB was not given monitoring powers.[7]^: 23 A massive wave of union organizing was punctuated by employer and union violence, general strikes, and recognition strikes.[8][9][10] The National Industrial Recovery Act was administered by the National Recovery Administration (NRA). At the outset, NRA Administrator Hugh S. Johnson believed that Section 7(a) would be self-enforcing, but the tremendous labor unrest proved him wrong. On August 5, 1933, President Franklin D. Roosevelt announced the establishment of the National Labor Board, under the auspices of the NRA, to implement the collective bargaining provisions of Section 7(a).[1]

The National Labor Board (NLB) established a system of 20 regional boards to handle the immense caseload. Each regional board had a representative designated by local labor unions, local employers, and a "public" representative. All were unpaid. The public representative acted as the chair. The regional boards could hold hearings and propose settlements to disputes. Initially, they lacked authority to order representation elections, but this changed after Roosevelt issued additional executive orders on February 1 and February 23, 1934.

The NLB, too, proved ineffective. Congress passed Public Resolution No. 44 on June 19, 1934, which empowered the president to appoint a new labor board with authority to issue subpoenas, hold elections, and mediate labor disputes.[11][12] On June 29, President Roosevelt abolished the NLB and in Executive Order 6763 established a new, three-member National Labor Relations Board.[13][14]

Lloyd K. Garrison was the first chairman of the National Labor Relations Board (often referred to by scholars the "First NLRB" or "Old NLRB").[2] The "First NLRB" established organizational structures which continue at the NLRB in the 21st century. This includes the regional structure of the board; the use of administrative law judges and regional hearing officers to initially rule on cases; an appeal process to the national board; and the use of expert staff, organized into various divisions, at the national level.[15] Formally, Garrison established the:[16]

• Executive Office, which handled administrative activities of the national and regional boards, field staff, and Legal Division. It was overseen by an Executive Secretary.
• Examining Division, national staff which conducted field investigations and assisted the regional boards with adjudications, hearings, and representative elections.
• Information Division, which provided the press and public with news.
• Legal Division, which assisted the Department of Justice in seeking compliance with board decisions in the courts, or in responding to suits brought about by board decisions.[17]
• Research Division, which studied decisions of the regional boards so that a comprehensive labor law might be developed, and studied the economics of each case.

Within a year, however, most of the jurisdiction of the "First NLRB" was stripped away. Its decisions in the automobile, newspaper, textile, and steel industries proved so volatile that Roosevelt himself often removed these cases from the board's jurisdiction. Several federal court decisions further limited the board's power. Senator Robert F. Wagner (D – NY) subsequently pushed legislation through Congress to give a statutory basis to federal labor policy that survived court scrutiny. On July 5, 1935, a new law—the National Labor Relations Act (NLRA, also known as the Wagner Act)—superseded the NIRA and established a new, long-lasting federal labor policy.[18] The NLRA designated the National Labor Relations Board as the implementing agency.

J. Warren Madden (left), Nathan Witt, and Charles Fahy (right) reviewing documents before a congressional hearing on December 13, 1937

The first chairman of the "new" NLRB was J. Warren Madden, professor of the University of Pittsburgh School of Law.[19] Madden largely confirmed the previous structure of the "first NLRB" by formally establishing five divisions within the agency:

• Administrative Division: Oversaw all administrative activities of national and regional boards and their finances; led by Secretary
• Economic Division: Analyzed economic evidence in cases; made studies of economics of labor relations for use by board and courts; supervised by Chief Industrial Economist; also known as the Technical Service Division[20]
• Legal Division: Handled NLRB either decisions appealed to courts or cases in which NLRB sought enforcement of its decisions; overseen by general counsel (hired by NLRB board); comprised two subdivisions:
  • Litigation Section: Advised national and regional boards, prepared briefs, worked with Justice Department
  • Review Section: Analyzed regional hearings and decisions; issued interpretations of law; prepared forms; drafted regulations
• Publications Division: Handled all press and public inquiries; published decisions of national and regional boards and their rules and regulations; overseen by Director of Publications
• Trial Examining Division: Held hearings before the national board; overseen by Chief Trial Examiner

Benedict Wolf served as first Secretary of the NLRB, Charles H. Fahy the first general counsel, and David J. Saposs the first Chief Industrial Economist.[21] Wolf resigned in mid-1937, and Nathan Witt, an attorney in the Legal Division, was named Secretary in October.[22]

The Economic Division was a critical one for the NLRB. Cause-and-effect was one of the fundamental assumptions of the National Labor Relations Act, and for the causes of labor unrest to be understood economic analysis was needed.[23] From the start, the Economic Division undertook three important tasks: 1) Gather economic data in support of cases before the courts; 2) Conduct general studies of labor relations to guide the board in formulating decisions and policies; and 3) Research the history of labor relations (the history of written agreements, whether certain issues were historically part of collective bargaining, how unions functioned internally, trends in employer activities, trends in collective bargaining, whether certain employer actions led to labor disputes, etc.) so that the board could educate itself, the courts, Congress, and the public about labor relations.[24] The first function proved critical to the survival of the NLRB. It was the Economic Division's data and analysis, more than then NLRB's legal reasoning, which proved critical in persuading the Supreme Court to sustain the Wagner Act in NLRB v. Jones & Laughlin Steel.[25][26] The Court even cited several Economic Division studies in its decision.[27] In the wake of Jones & Laughlin Steel, many labor relations experts outside the agency concluded that economic analysis was "an accepted fact" essential to the proper functioning of the agency.[28] The Economic Division did, too. It asked Madden to pair an economist with an attorney in every important case,[29] and prepared outline of the economic data needed to support each case in case it went before the courts.[30]

During his time on the NLRB, Madden was often opposed by the American Federation of Labor (AFL), which believed that Madden was using the NLRA and the procedures and staff of the NLRB to favor the AFL's primary competitor, the Congress of Industrial Organizations (CIO).[31][32] The NLRB and NLRA were also under intense pressure from employers, the press, congressional Republicans, and conservative Democrats.[33][34]

The NLRB's Economic Division proved critical in pushing for a congressional investigation into employer anti-union activities, and ensuring that investigation was a success. The Economic Division was deeply aware of employer use of labor spies, violence, and company unions to thwart union organizing, and quietly pressed for a congressional investigation into these and other tactics. Senator Robert M. La Follette Jr. took up the suggestion, on June 6, 1936, the Senate Committee on Education and Labor established a Subcommittee Investigating Violations of Free Speech and the Rights of Labor chaired by La Follette.[35] Better known as the "La Follette Committee", the subcommittee held extensive hearings for five years and published numerous reports. The committee uncovered extensive evidence of millions of company dollars used to pay for spies and fifth columnists within unions, exposed the culpability of local law enforcement in acts of violence and murder against union supporters (particularly in the Harlan County War),[36] revealed the wide extent of illegal blacklisting of union members, and exposed the use of armed strikebreakers and widespread stockpiling of tear gas, vomit gas, machine guns, mortars, and armor by corporations to use against strikers.[37] Some of the evidence the committee used was provided by the Economic Division,[38] and the investigation proved critical for a time in defending the agency from business and congressional attack.[35]

The biggest issue the NLRB faced was constitutional. The Justice Department and NLRB legal staff wanted the Supreme Court to rule as quickly as possible on the constitutionality of the NLRA. But the board and Justice Department also realized that the Court's Lochner era legal philosophy made it unlikely for the Court to uphold the Act. Subsequently, Madden strove to resolve minor cases before they could become court challenges, and worked to delay appeals as long as possible until the best possible case could be brought to the Court.[39] This legal strategy paid off. The Supreme Court upheld the NLRA in National Labor Relations Board v. Jones & Laughlin Steel Corporation, 301 U.S. 1 (1937).[40] Afterward, Madden continued to strategically guide the NLRB's legal efforts to strengthen the federal courts' view of the NLRA and the board's actions.[39] Because of the efforts of Madden and NLRB General Counsel Charles H. Fahy, the Supreme Court reviewed only 27 cases between August 1935 and March 1941, even though the board had processed nearly 5,000 cases since its inception. The Supreme Court enforced the NLRB's rulings in 19 cases without modifying them, enforced them with modification in six more, and denied enforcement in two cases. Additionally, the board won all 30 injunction and all 16 representation cases before the lower courts, a rate of success unequalled by any other federal agency.[41]

AFL opposition to the "Madden Board" grew after decisions in Shipowners' Ass'n of the Pacific Coast, 7 NLRB 1002 (1938), enf'd American Federation of Labor v. National Labor Relations Board, 308 U.S. 401 (1940) (awarding a longshoremen's unit to the CIO rather than the AFL), and American Can Co., 13 NLRB 1252 (1939) (unit's history of collective bargaining outweighs desire of workers to form craft-only unit).[42]

The AFL began pushing for an investigation into the NLRB, and this investigation led to allegations of communist influence within the agency. In June 1938, the House Un-American Activities Committee (led by Chairman Martin Dies Jr. [D-TX]) heard testimony from AFL leader John P. Frey, who accused Madden of staffing the NLRB with communists.[43] The allegations were true, in at least one case: Nathan Witt, the NLRB's executive secretary and the man to whom Madden had delegated most administrative functions, was a member of the Communist Party of the United States.[44][45] These allegations and discoveries significantly damaged the agency's support in Congress and with the public.

A second investigation into the NLRB led to organizational changes at the board. On July 20, 1939, Republicans and conservative Democrats formed a coalition to push through the House of Representatives a resolution establishing a Special Committee to Investigate the National Labor Relations Board (the "Smith Committee"), chaired by conservative, anti-labor Rep. Howard W. Smith (D-VA).[46][47] On March 7, 1940, the Smith Committee proposed legislation to abolish the NLRB, reconstitute it, and radically amend the NLRA.[48][49][50] President Roosevelt opposed the bill, although he conceded that perhaps the board's membership should be expanded to five from three.[51] The Smith bill won several early tests in the House, which also voted to substantially cut the NLRB's budget.[52] Smith won a vote in the House Rules Committee permitting him to bring his bill to the floor for a vote.[53] In an attempt to defuse the legislative crisis, Madden fired 53 staff and forced another five to resign, and decentralized the NLRB's trial process to give regional directors and field agents more authority.[54] But the House still passed the Smith bill by a vote of 258 to 129 on June 7, 1940.[55] To protect the NLRB, Roosevelt convinced Senator Elbert D. Thomas, Chairman of the Senate Committee on Education and Labor, to hold no hearings or votes on the bill, and the legislation died.[56][57]

The Smith Committee investigation had a lasting effect on labor law in the U.S., and was the basis for the Taft–Hartley Act of 1947.[58][59] Madden's term on the NLRB came to an end after just four years. On November 15, 1940, President Roosevelt nominated Harry A. Millis to the NLRB and named him chairman, and nominated Madden to a seat on the U.S. Court of Claims.[60]

Another major structural change occurred at the same time that Madden left the NLRB. The Smith committee's anti-communist drive also targeted David J. Saposs, the NLRB Chief Industrial Economist. Saposs had been surreptitiously assessed by members of the Communist Party USA for membership, and rejected as a prospect.[61] But Smith and others attacked Saposs as a communist, and Congress defunded his division and his job on October 11, 1940.[62][63][64] Although the Smith committee's investigation proved critical, the disestablishment of the Economic Division was due to many reasons—both internal and external to the NLRB, and only some of which involved allegations of communist infiltration. As historian James A. Gross observed:.[65]

The Division was eliminated for all kinds of reasons which had nothing to do with the merits and importance of its work: political pressures and maneuverings, jealousy and empire building between and among lawyers and economists inside the Board, opposition to leftist ideologies, a personal attack on the Chief Economist, David Saposs, and a mighty hostility to the administrative process.

The loss of the Economic Division was a major blow to the NLRB. It had a major tactical impact: Economic data helped the NLRB fulfill its adjudicatorial and prosecutorial work in areas such as unfair labor practices (ULPs), representation elections, and in determining remedial actions (such as reinstatement, back pay awards, and fines).[66] Economic data also undermined employer resistance to the agency by linking that opposition to employer ULPs.[67] The loss also left the board dependent on the biased information offered by the parties in dispute before it, leading to poor decision-making and far less success in the courts.[68] It also had a major strategic impact: It left the board unable to determine whether its administration of the law was effective or not.[69] Nor could the board determine whether labor unrest was a serious threat to the economy or not. As labor historian Josiah Bartlett Lambert put it: "Without the Economic Research Division, the NLRB could not undertake empirical studies to determine the actual impact of secondary boycotts, jurisdictional strikes, national emergency strikes, and the like."[70] The Economic Division was critical to a long-range NLRB process to lead to the long-term evolution of industrial labor relations in the U.S., but that goal had to be abandoned.[29][71] Most importantly, however, the evisceration of the Economic Division struck at the fundamental purpose of federal labor law, which was to allow experts to adjudicate labor disputes rather than use a legal process. With this data and analysis, widespread skepticism about the board's expertise quickly spread through Congress and the courts. It also left the board largely unable to engage in rulemaking, forcing it to make labor law on an inefficient, time-consuming case-by-case basis.[72] As of 1981, NLRB was still the only federal agency forbidden to seek economic information about the impact of its activities.[73]

The second chairman of the NLRB, Harry A. Millis, led the board in a much more moderate direction.[70] Lacking an economic division to give it ammunition to fight with Millis deliberately made the NLRB dependent on Congress and the executive branch for its survival.[74] Millis made a large number of organizational changes. He stripped the office of Secretary of its power, set up an Administrative Division to supervise the 22 regional offices, initiated a study of the board's administrative procedures, and genuinely delegated power to the regional offices.[75] He removed casehandling and regional office communication from the jurisdiction of the Office of the Secretary and created a Field Division.[76][77] He also adopted procedures requiring the board made its decisions based solely on the trial examiner's report, authorized NLRB review attorneys to review trial examiner report, required decisions to be drafted ahead of time and distributed for review, authorized review attorneys to revise drafts before a final decision was issued, required trial examiners to emphasize findings of fact and to address points of law, and began holding board meetings when there were differences of opinion over decisions.[76]

Millis eliminated the Review Division's decisive role in cases, which had been established under Madden and Witt.[78] Madden and Witt had adopted a highly centralized board structure so that (generally speaking) only the cases most favorable to the board made it to the courts. The centralized structure meant that only the strongest cases made it to national board, so that the board could apply all its economic and legal powers to crafting the best decision possible. This strategy enabled the NLRB to defend itself very well before the Supreme Court. But Madden and Witt had held on to the centralized strategy too long, and made political enemies in the process. Millis substituted a decentralized process in which the board was less a decision-maker and more a provider of services to the regions.[78] Many of the changes Millis instituted were designed to mimic requirements placed on other agencies by the Administrative Procedure Act.[65]

American entry into World War II on December 8, 1941, significantly changed the NLRB. On January 12, 1942, President Roosevelt created the National War Labor Board (NWLB), which displaced the NLRB as the main focus of federal labor relations for the duration of the war. The NWLB was given the authority to "finally determine" any labor dispute which threatened to interrupt war production, and to stabilize union wages and benefits during the war. Although Roosevelt instructed the NWLB not to intrude on jurisdiction exercised by the NLRB, the War Labor Board refused to honor this request. From 1942 to 1945, Millis tried to secure a jurisdictional agreement with NWLB Chairman George W. Taylor. But these discussions proved fruitless, and Millis broke them off in June 1945. The NWLB also heavily raided the NLRB for staff, significantly hindering NLRB operations.[79]

Additional changes came with the passage of the War Labor Disputes Act (WLDA) on June 25, 1943. Enacted over Roosevelt's veto after 400,000 coal miners, their wages significantly lower due to high wartime inflation, struck for a $2-a-day wage increase,[80][81] the legislation (in part) required the NLRB to issue a ballot outlining all the collective bargaining proposals and counter-proposals, wait 30 days, and then hold a strike vote.[82] The War Labor Disputes Act proved very burdensome. The NLRB processed 2,000 WLDA cases from 1943 to the end of 1945, of which 500 were strike votes. The act's strike vote procedures did little to stop strikes, however, and Millis feared unions were using the referendums to whip up pro-strike feelings among their members. Millis also believed the law's strike vote process permitted more strikes to occur than the NLRB would have allowed under its old procedures. There were so many strike vote filings in the six months after the war ended that NLRB actually shut down its long-distance telephone lines, cancelled all out of town travel, suspended all public hearings, and suspended all other business to accommodate the workload.[83] By early 1945, Millis was in ill health.[84] He resigned from the NLRB on June 7, 1945,[85] and Paul M. Herzog was named his successor.

A major turning point in the history of the NLRB came in 1947 with passage of the Taft–Hartley Act. Disruptions caused by strikes during World War II as well as the huge wave of strikes that followed the end of the war fueled a growing movement in 1946 and 1947 to amend the NLRA to correct what critics saw as a pro-labor tilt in federal law.[86][87] Drafted by the powerful Republican Senator Robert A. Taft and the strongly anti-union Representative Fred A. Hartley Jr., the Taft–Hartley Act banned jurisdictional strikes, wildcat strikes, political strikes, secondary boycotts, secondary picketing, mass picketing, union campaign donations made from dues money, the closed shop, and unions of supervisors. The act also enumerated new employer rights, defined union-committed ULPs, gave states the right to opt out of federal labor law through right-to-work laws, required unions to give an 80-days' strike notice in all cases, established procedures for the president to end a strike in a national emergency, and required all union officials to sign an anti-Communist oath. Organizationally, the act made the general counsel a presidential appointee, independent of the board itself, and gave the general counsel limited powers to seek injunctions without referring to the Justice Department. It also banned the NLRB from engaging in any mediation or conciliation, and formally enshrined in law the ban on hiring personnel to do economic data collection or analysis.[65]

In August 1947, Robert N. Denham became the NLRB's general counsel. He held "conservative views" and wielded "considerable influence" on labor-management relations and interpretations of the newly passed Taft–Hartley Act. In 1950, US President Harry S. Truman fired Denham (New York Times: "left at the behest of the President").[88][89] While NLRB general counsel, Denham received considerable news coverage as a "quasi-Republican". Nominated by President Truman,[90] Denham received unanimous approval by the US Senate Labor Committee. He received "full and independent powers to investigate violations, file complaints and prosecute offenders before the board."[91] In August 1947, he supported an "Anti-Red Affidavit Rule" and so sided with US Senator Robert A. Taft.[92] In October 1947, the NLRB overruled him, which meant that top officers of the American Federation of Labor (AFL) and Congress of Industrial Organizations (CIO) would not have to sign an anti-Communist oath per the Taft–Hartley Act.[93]

Herzog publicly admitted the need for some change in the NLRA, but privately he opposed the proposed Taft–Hartley amendments. He felt the communist oath provisions were unconstitutional, that the amendments would turn the NLRA into a management weapon, that creation of an independent general counsel would weaken the NLRB, and that the law's dismantling of the agency's economic analysis unit deprived the NLRB of essential expertise.[94] Nonetheless, Congress overrode Truman's veto of the Taft–Hartley Act on June 23, 1947, and the bill became law.[95]

The Taft–Hartley Act fundamentally changed the nature of federal labor law, but it also seriously hindered the NLRB's ability to enforce the law. The loss of the mediation function left the NLRB unable to become involved in labor disputes, a function it had engaged in since its inception as the National Labor Board in 1933. This hindered the agency's efforts to study, analyze, and create bulwarks against bad-faith collective bargaining; reduced its ability to formulate national labor policy in this area; and left the agency making labor law on an ineffective, time-consuming case-by-case basis.[70] The separation of the general counsel from supervision by the national board also had significant impact on the agency. This separation was enacted against the advice of the Justice Department, contradicted the policy Congress had enacted in the Administrative Procedure Act of 1946, and ignored Millis' extensive internal reforms. The change left the NLRB as the only federal agency unable to coordinate its decision-making and legal activities, and the only agency exempted in this manner under the Administrative Procedure Act. The separation of the general counsel was not discussed by the committee or by any witnesses during the legislation's mark-up. Indeed, there was no basis for it at all in the public record.[65] It was, in the words of sociologist Robin Stryker, "little-noted" and "unprecedented".[23]

The anti-communist oath provisions generated extensive public debate, and generated disputes before the Supreme Court several times. The Taft–Hartley oath first reached the court in American Communications Ass'n v. Douds, 339 U.S. 382 (1950), in which the court held 5-to-1 that the oath did not violate the First Amendment, was not an ex post facto law or bill of attainder in violation of Article One, Section 10, and was not a "test oath" in violation of Article Six. The issue again came before the court in Garner v. Board of Public Works, 341 U.S. 716 (1951), in which the court unanimously held that a municipal loyalty oath was not an ex post facto law or bill of attainder. It came before the court yet a third time in Wieman v. Updegraff, 344 U.S. 183 (1952). This time, the outcome was radically different. The Supreme Court unanimously ruled that state loyalty oath legislation violated the due process clause of the Fourteenth Amendment. In 1965, the Supreme Court held 5-to-4 that the anti-communist oath was a bill of attainder in United States v. Brown, 381 U.S. 437 (1965).[96] The Supreme Court essentially overturned Douds, but did not formally do so.[97]

In 1974, Congress amended the National Labor Relations Act to protect employees of non-profit hospitals and allow the board to adjudicate their claims. The 1935 Wagner Act had protected non-profit hospital workers, but the Taft–Hartley Act removed those protections in 1947. Congress had expressed concern about the impact of potential labor strikes on patient care, but decided that the proposed legislation was an appropriate compromise.[98][99]

In July 1987, the board began work on a comprehensive regulation for collective-bargaining units in health care organizations. The board held 14 days of hearings and considered testimony from 144 witnesses and over 1,800 public comments, and finally issued the rule in April 1989. The rule was challenged in court and ultimately reached the Supreme Court, which unanimously upheld the rule in April 1991.[98]

From December 2007 to mid-July 2013, the agency never had all five members, and not once did it operate with three confirmed members, creating a legal controversy.[100] Three members' terms expired in December 2007, leaving the NLRB with just two members—Chairman Wilma B. Liebman and Member Peter Schaumber.[101] President George W. Bush refused to make some nominations to the board and Senate Democrats refused to confirm those which he did make.[101][102][103]

On December 28, 2007, just before the board lost its quorum, the four members agreed to delegate their authority to a three-person panel per the National Labor Relations Act.[103][104] Only Liebman and Schaumber remained on the board, but the board concluded that the two constituted a quorum of the three-person panel and thus could make decisions on behalf of the board.[103][104] Liebman and Schaumber informally agreed to decide only those cases which were in their view noncontroversial and on which they could agree, and issued almost 400 decisions between January 2008 and September 2009.[101][102][103][105][106]

In April 2009, President Obama nominated Craig Becker (associate general counsel of the Service Employees International Union), Mark Gaston Pearce (a member on the Industrial Board of Appeals, an agency of the New York State Department of Labor), and Brian Hayes (Republican Labor Policy Director for the Senate Committee on Health, Education, Labor and Pensions) to fill the three empty seats on the NLRB.[101]

The U.S. Courts of Appeals for the First, Second, and Seventh Circuits upheld the two-member NLRB's authority to decide cases, while the U.S. Court of Appeals for the D.C. Circuit rejected its authority.[101][102][105][106] In September 2009, the Justice Department asked the U.S. Supreme Court to immediately hear its appeal from the Seventh Circuit's decision in New Process Steel, L.P. v. NLRB and settle the dispute, given the high stakes involved.[102] The Supreme Court granted certiorari in October and agreed to decide the issue.[107]

Becker's nomination appeared to fail on February 8, 2010, after Republican Senators (led by John McCain) threatened to filibuster his nomination.[103][108][109] President Obama said he would consider making recess appointments to the NLRB due to the Senate's failure to move on any of the three nominations.[108] On March 27, 2010, Obama recess appointed Becker and Pearce.[110]

On June 17, 2010, the Supreme Court ruled in New Process Steel, L. P. v. NLRB that the two-member Board had no authority to issue decisions, invalidating all rulings made by Liebman and Schaumber.[111]

On June 22, 2010, a voice vote in the Senate confirmed Pearce to a full term, allowing him to serve until August 27, 2013. The same day, the Senate confirmed Republican nominee Brian Hayes of Massachusetts by voice vote. Effective August 28, 2011, Pearce was named chairman to replace Democrat Wilma Liebman, whose term had expired.[112] Becker's term, as a recess appointee, ended on December 31, 2011.[113] Hayes' term ended on December 16, 2012.[114]

On January 4, 2012, Obama announced recess appointments to three seats on the board: Sharon Block, Terence F. Flynn, and Richard Griffin.[115] The appointments were criticized by Republicans, including the House Speaker John Boehner, as unconstitutional and "a brazen attempt to undercut the role of the Senate to advise and consent the executive branch on appointments."[116] Although made as recess appointments, critics questioned their legality, arguing that Congress had not officially been in recess as pro forma sessions had been held.[117] Former U.S. attorney general Edwin Meese stated that in his opinion, since the appointments were made when the Senate was "demonstrably not in recess", they represented "a constitutional abuse of a high order."[118] On January 12, 2012, the U.S. Justice Department released a memo stating that appointments made during pro forma sessions are supported by the Constitution and precedent.[119]

On January 25, 2013, in Noel Canning v. NLRB, a panel of the D.C. Circuit ruled that President Obama's recess appointments were invalid as they were not made during an intersession recess of the Senate, and the President moved to fill them during the same recess.[120] On May 16, 2013, in National Labor Relations Board v. New Vista Nursing and Rehabilitation, the U.S. Court of Appeals for the Third Circuit became the second federal appellate court to rule that the recess appointments to the NLRB were unconstitutional. In a split decision, it also found that the March 27, 2010, recess appointment of Craig Becker was unconstitutional.[121]

On July 14, 2013, Senate Majority Leader Harry Reid threatened to exercise the "nuclear option" and allow a simple majority (rather than a supermajority) of the Senate to end a filibuster. This threat to end the filibuster's privileged position in the Senate was intended to end Republican filibustering of NLRB nominees.[122] On July 16, 2013, President Obama and Senate Republicans reached an agreement to end the impasse over NLRB appointees. Obama withdrew the pending nominations of Block and Griffin, and submit two new nominees: Nancy Schiffer, associate general counsel at the AFL-CIO, and Kent Hirozawa, chief counsel to NLRB Chairman Mark Gaston Pearce. Republicans agreed not to oppose a fourth nominee, to be submitted in 2014.[123]

On July 30, 2013, the Senate confirmed all five of Obama's nominees for the NLRB: Kent Hirozawa, Harry I. Johnson III, Philip A. Miscimarra, Mark Gaston Pearce and Nancy Schiffer. Johnson and Miscimarra represented the Republican nominees for the board.[124] Pearce was confirmed for a second five-year term.[125]

On June 26, 2014, in National Labor Relations Board v. Noel Canning, the U.S. Supreme Court unanimously ruled that President Obama's recess appointments to the NLRB in 2013 were unconstitutional, affirming the D.C. Circuit's decision in Noel Canning v. NLRB.[126][127]

Nancy Schiffer's term ended on December 15, 2014. She was succeeded by Lauren McFerran on December 16, 2014. Harry I. Johnson III's term ended on August 27, 2015.[128]

Change in leadership: In 2017, the NLRB's leadership shifted when President Donald Trump nominated and the Senate confirmed new members, changing the board's composition to a 3-2 Republican majority.

Joint employer standard: In December 2017, the NLRB overturned an Obama-era decision that expanded the joint employer standard, which held employers liable for labor violations committed by their subcontractors or franchisees.

Boeing decision: In 2018, the NLRB issued a decision in The Boeing Company case, which made it easier for employers to justify policies that restrict employees' rights to engage in protected concerted activity.

Graduate students' right to unionize: In August 2016, the NLRB ruled that graduate students who worked as teaching or research assistants at private universities had the right to unionize under federal labor law.

Independent contractor status: In January 2019, the NLRB issued a decision that clarified the test for determining whether workers are independent contractors or employees under the National Labor Relations Act (NLRA).

Joint employer standard reinstated: In 2020, the NLRB reinstated the joint employer standard that had been overturned in 2017, making it easier for employees to hold companies liable for labor violations committed by their subcontractors or franchisees.

Joy Silk reinstated: In 2023 in response to the company Cemex having been found guilty of illegal labor practices by interfering with a union election, the NLRB in ordering a new policy for union elections, effectively reinstated Joy Silk. Under the new policy if a majority of workers demonstrate support for a union, the company must recognize them or ask the NLRB to conduct an election. However, if they commit unfair labor practices, the union will automatically be recognized, and the company will be required to bargain.

The board's jurisdiction is limited to private sector employees and the United States Postal Service; other than Postal Service employees, it has no authority over labor relations disputes involving governmental, railroad and airline employees covered by the Adamson Railway Labor Act, or agricultural employees. On the other hand, in those parts of the private sector its jurisdictional standards are low enough to reach almost all employers whose business has any appreciable impact on interstate commerce.

Charges are filed by parties against unions or employers with the appropriate regional office. The regional office will investigate the complaint. If a violation is believed to exist, the region will take the case before an Administrative Law Judge who will conduct a hearing. The decision of the Administrative Law Judge may be reviewed by the five member board. Board decisions are reviewable by United States Courts of Appeals. The board's decisions are not self-executing: it must seek court enforcement in order to force a recalcitrant party to comply with its orders.[131] (For greater detail on this process see the entry for unfair labor practice.)

Each seat is named for the first board member to hold the position. The Smith Seat was originally held by Edwin S. Smith (D), the Madden Seat was originally held by J. Warren Madden (D), the Carmody Seat was originally held by John M. Carmody (D), the Murdock Seat was originally held by Abe Murdock (D), and the Gray Seat was originally held by J. Copeland Gray (R).[144]

On January 25, 2017, President Donald Trump appointed Philip Miscimarra the acting chairman of the NLRB.[149] Miscimarra's term expired on December 16, 2017. Marvin Kaplan succeeded him as NLRB Chairman on December 21, 2017.[150][151] Kaplan was replaced as chairman in April 2018 by John F. Ring.[152]

President Trump announced on March 2, 2020, that he would renominate Republican Marvin Kaplan and Democrat Lauren McGarity McFerran to seats on the board.[153] On July 29, 2020, Kaplan was confirmed by the Senate by a vote of 52–46 to a second term of five years expiring August 27, 2025, and McFerran was confirmed by the Senate by a vote of 53–42 to a second term of five years expiring December 16, 2024.

On January 20, 2021, President Joe Biden appointed current Democratic member Lauren McFerran as chair of the NLRB.[139]

Biden subsequently nominated Gwynne Wilcox to fill the then vacant Carmody seat on the board and David Prouty to replace William Emanuel as holder of the Smith seat when the latter's term expires in August 2021. Both nominees have strong ties to organized labor and have represented unions. They received Senate confirmation on July 28, 2021.[154] On September 6, 2023, Wilcox was confirmed by the Senate for a second 5-year term.[155]

J. Warren Madden, the first chairman of the NLRB, working at his desk at the NLRB in Washington, D.C., in June 1937

The president designates one member of the board to serve as chairman. Chairmen serve at the pleasure of the president, and the president can designate another member as chairman at any time.[158][159] The chairman's powers are limited. The chairman, like other board members, has a chief legal counsel and a legal staff.[160] Except for certain limited and purely administrative functions (such as being the recipient of appeals or Freedom of Information Act requests),[161] one former NLRB Chairman has said "the chairmanship—given the authority of the general counsel to appoint regional staff and recommend regional directors to the entire board (not just to the chairman)—is more like a bully pulpit than a position of authority."[162] The chairman does, however, work with the Office of Management and Budget to craft the NLRB's budget proposal to Congress, may propose to the board changes to NLRB procedures and guidance manuals, and may propose that the board engage in rulemaking.[163]

From 1935 to 1953, it was customary for the chairman (like all members of the NLRB) to be a neutral career government employee rather than an advocate of either labor unions or management.[164] President Dwight Eisenhower's appointment of Guy Farmer in 1953 broke this two-decade-old tradition (Farmer was a management attorney).[165][166] Presidents John F. Kennedy and Lyndon B. Johnson both returned to the tradition of appointing neutral third parties to the position of board chairman, but President Richard M. Nixon appointed a management-side attorney.[165] The board as a whole was under intense Congressional scrutiny from its inception until the 1960s.[167] This ended in the 1960s and 1970s, but resumed in the 1980s.[167] Subsequent appointments to the position of chairman have been heavily partisan and from either a strongly pro-union or pro-management position.[163]