The National Labor Relations Act (NLRA) and the National Labor Relations Board (NLRB) will be 85 years old on July 5, 2020.

On July 5, 1935, the Wagner Act was signed into law by President Franklin Roosevelt. That law gave employees the right, under Section 7, to form and join unions. It obligated employers to bargain collectively with unions selected by a majority of the employees in an appropriate bargaining unit. It also created employer unfair labor practices.

In 1947, the Wagner Act was amended by the Taft-Hartley Act. Among other things, the Taft-Hartley Act increased the number of NLRB members from three to five, created union unfair labor practices, and contained a “free speech proviso,” permitting employers to lawfully express views, arguments, or opinions about unions to employees.

Union representation in the private sector at the end of 2019 was only 6.2 percent, an all-time low. However, that same year, unions won 75 percent of the NLRB-conducted elections in which they were involved.

During its 85 years, the NLRB’s position on significant labor issues has shifted depending on which political party occupied the White House. The NLRB currently has three members, all pro-business Republicans appointed by President Donald Trump. The current NLRB has dismantled much of the pro-labor decisions and regulations of the Obama-Board.

Possible New NLRB Members Identified

On June 3, the U.S. Senate Committee on Health, Education, Labor and Pensions voted to advance the nomination of current NLRB member, Marvin Kaplan, and former member, Lauren McFerran, to a full Senate vote. The NLRB currently has three members, all Republican. Kaplan’s current term ends on August 27, 2020. McFerran, a Democrat, served from December 17, 2014, to December 16, 2019. A date for a Senate vote has not been set.

Some Things Never Change

A U.S. Department of Labor website chronicles union-related “Criminal Enforcement Actions” during 2020. According to the website, as of June 16, 2020, there have been 49 criminal enforcement actions involving union officials since January 1. The unions involved include the United Auto Workers; Teamsters Union; Service Employees International Union; Machinists Union; Operating Engineers; Laborers’ Union; Steelworkers Union; Electrical Workers Union; United Food and Commercial Workers; Sheet Metal, Air, Rail and Transportation Workers; Steelworkers Union; American Federation of Government Employees; Communications Workers of America; American Federation of State, County and Municipal Employees; National Association of Letter Carriers; Painters Union; Roofers Union, American Federation of Teachers, International Longshore and Warehouse Union. Among the offenses were embezzlement, wire fraud, and conspiracy to defraud the United States. The biggest union fish was Gary Jones, former President of the UAW, who pleaded guilty to conspiracy to embezzle union funds, among other counts. Jones embezzled and conspired to embezzle approximately one million dollars in union funds.

NLRB’s Contract Bar Doctrine to be Reviewed

The NLRB has announced that it is going to review its “contract bar doctrine.” Under this doctrine, when a petition is filed for a representation election among a group of employees who are covered by a collective-bargaining agreement, the NLRB must decide whether the agreement meets certain requirements such that it operates to serve as a contractual bar to the further processing of that petition. In connection with that review, the NLRB will issue a public notice inviting amicus briefs from interested parties.

The contract bar issue arose in connection with a petition filed on February 25, 2020, by an employee of Mountaire Farms, Inc. a poultry processing plant in Selbyville, Delaware, to decertify a local of the United Food and Commercial Workers Union. The notice will provide the specific issues the NLRB wants addressed. Mountaire Farms, Inc., Case 05-RD-256888 (June 23, 2020). The Regional Director for Region Five of the NLRB decided the contract did not bar the decertification election. The union, which had argued the contract was a bar, filed a request for review (appeal) with the NLRB, which the NLRB agreed to hear. Although the Regional Director decided the contract was not a bar because it included an unlawful union security provision, the NLRB will use the decision to review the contract bar in general. Visit our Labor & Collective Bargaining blog for updates on this matter.