Also see National Labor Relations Act (NLRA) (Legislation)
The National Labor Relations Board is a federal government agency consisting of a five-member Board appointed by the President with (by convention) three members of the President’s party and two members of the opposition party and a nominally independent General Counsel appointed by the President. The NLRB was created in 1935 under the National Labor Relations Act, also known as the Wagner Act after its sponsor, U.S. Senator Robert Wagner (D-N.Y.).
The NLRB enforces the laws governing union representation in the workplace. It conducts federally supervised secret-ballot unionization and decertification elections, investigates allegations of unfair labor practices, and adjudicates unfair labor practice cases.
Under President Barack Obama, the NLRB became a lightning rod for political controversy, which drew in all branches of the federal government due to the Board’s use of adjudications to make policy changes in favor of unions. Politico described Obama’s NLRB as “more pro-union than any board since the early 1980s.”
“The gifts to big labor out of Obama’s NLRB” included an administrative rule that sped the mandatory timeline for union elections, known as the “ambush election” rule; a series of rulings that exposed large American corporations to the labor-law related liabilities caused by their franchisees;  a ruling that allowed for the creation of multiple micro-unions within a single employer;  and a controversial decision to accuse a major American manufacturer of union retaliation for merely deciding to locate their new manufacturing plant in a new state while continuing operations at their old plant as well. By one estimate, these and other decisions of the Obama-era NLRB overturned 4,500 years of combined legal precedents; since the election of President Donald Trump, some of these decisions have been reversed.
Federal courts have struck down many of the NLRB’s controversial decisions under President Obama for over-stepping the bounds of the agency’s jurisdiction. The most notable instance of this came in 2013, when a U.S. Court of Appeals struck down an NLRB administrative rule requiring a majority of businesses to post notices to employees, in conspicuous places, informing them of their unionization rights.
Additionally, the Board under President Obama frequently lacked a quorum and continued to make rulings. On at least two occasions the Supreme Court ruled that those decisions were unconstitutional, voiding approximately 1,300 board rulings.   
The creation of the National Labor Relations Board (NLRB) stems from a series of series of unsuccessful efforts to create an independent board to mediate labor disputes. In 1934, President Franklin D. Roosevelt, with support from Congress, created the first iteration of the NLRB, known as the “Old NLRB,” under the National Industrial Recovery Act. Liberal labor union supporters, led by Senator Robert Wagner (D-N.Y.), criticized the President’s early efforts, which they felt lacked the enforcement powers necessary to ensure compliance with the Board’s decisions. In 1935, the U.S. Supreme Court ruled that the law creating the “Old NLRB” was unconstitutional.
In 1935, Senator Wagner pushed through his legislation, the National Labor Relations Act (NLRA, also known as the Wagner Act), which President Roosevelt signed on July 5, 1935. In addition to codifying a number of privileges for unions, the NLRA created the National Labor Relations Board, as an independent agency—made up of three members appointed by the President and confirmed by the Senate. The NLRA “gave employees the right, under Section 7, to form and join unions, and it obligated employers to bargain collectively with unions.” The NLRB’s purpose under the NLRA was to enforce employee rights rather than to mediate disputes.
Function and Structure
The Board is mainly charged with conducting union representation elections and adjudicating unfair labor practice complaints. An administrative law judge initially hears these labor complaints, which are then subject to review by the Board.
Meanwhile, the NLRB’s general counsel is tasked with investigating and prosecuting complaints, carrying out or defending the Board’s rulings, and overseeing cases in the NLRB’s field offices.
The NLRB cannot choose to bring a case on its own authority; rather, employers, individuals, or unions must bring cases, charges, and representation petitions to the Board. Similarly, the NLRB does not have the power to enforce its rulings but can petition the Department of Justice to enforce those decisions.
Nelson Lichtenstein, a labor historian at the University of California Santa Barbara, lamented that the NLRB has recently faced “total political polarization” on labor questions, and that whichever party controls the Presidency controls the agenda of the agency.
Similarly, Marshall Babson, a Republican who served on the Board during the late 1980s, said that this political polarization began in the Reagan years and has led to huge policy swings that take place depending on who has the majority.
In May 2017 Congress funded the NLRB budget at $274.2 million for FY 2017, unchanged from the previous FY 2016 budget.
In 2015, Politico wrote that the NLRB’s Obama-appointed democratic majority was “more pro-union than any board since the early 1980s” due to the Board’s use of adjudications to make policy decisions in favor of unions.  In 2016, Jean Card wrote in U.S. News and World Report, “the gifts to big labor out of Obama’s NLRB are too numerous to cover” and Michael Lotito, an employment and labor attorney, said, “There’s perhaps no labor board that has done more for organized labor.”
The NLRB’s aggressive actions under President Obama made the agency a “lightning rod” for political controversy that drew in all branches of the federal government.
Ambush Election Rule
In 2014, after a first version of the rule was struck down, the NLRB issued a rule that would greatly speed up the unionization election process and impose burdensome mandates upon employers facing a union organizing campaign.
Politico labeled the rule, “the most significant policy change ever undertaken by the Obama administration to strengthen the power of labor unions.”
Dubbed the “ambush election” rule, this action was seen as advantageous to union organizing because it shortened the time it takes to hold a union election by 40%, according to The Wall Street Journal.
In 2014 the then-NLRB General Counsel, former International Union of Operating Engineers attorney Richard Griffin, “issued complaints naming McDonald’s Corporation as a ‘joint employer’ of workers at its franchisees.” The decision was a win for labor unions, since it meant that McDonald’s could be held jointly liable with franchisees for labor violations, thereby subjecting McDonalds to at least 30 pending allegations of unfair labor practices committed by franchisees.
In 2015, while the McDonald’s administrative adjudication progressed, the Board issued its Browning Ferris ruling that companies could be held liable for the labor violations committed by those subcontractors. This was a sharp departure from previous rulings, and meant that corporations could also be held liable for labor violations committed by franchisees are not directly controlled by the company.
Bolstered by the Board’s Browning Ferris decision in 2016, the Griffin argued that McDonalds was in fact a joint employer, which if successful would have paved the way for unions — most notably the Service Employees International Union (SEIU) — to organize its employees system-wide and force McDonalds to the bargaining table on union issues, including the fight for $15 minimum wage campaign.
In late 2017, the Browning Ferris precedent was reversed by the Trump-era NLRB, restoring the pre-Obama-era precedent.
In 2011, the NLRB paved the way for multiple “micro-unions” to organize within a single workplace with its Specialty Healthcare decision, allowing different departments within a single company to organize their own unions. 
After that decision was handed down, the Board’s sole Republican, Brian E. Hayes, chastised the NLRB’s Democratic majority for making sweeping changes to established law through adjudication, “beyond the pale of reasoned adjudication.” According to Hayes, the decision “would encourage the unionization of units as small as possible” in conflict with the NLRA’s intentions.
Then in 2014, the labor board broadened the scope of their original Specialty Healthcare decision to include the retail industry, allowing a small group of employees at Macy’s to organize. Retailers criticized out of fear that it would lead to the creation of thousands of micro-unions at retail stores around the country.
In late 2017, the NLRB reversed the Obama-era Specialty Healthcare decision in a case titled PCC Structural, Inc., restoring the long-standing prior community of interest precedent.
In April 2011, then-NLRB Acting General Counsel Lafe Solomon, accused Boeing of retaliating against union workers for strikes by building a new $750 million manufacturing plant in South Carolina, despite the company continuing to build planes at its existing plant in Washington state.
The NLRB ultimately dropped the case after Boeing conceded to union demands for higher wages and more jobs — but only after a wave of denunciations from business groups and congressional Republicans.
In 2015, the NLRB issued five smaller pro-labor rulings, including one requiring that workers be allowed to demand a union representative be present during a drug test and another that held an employer cannot exclude union representatives from voluntary peer review committees.
The Obama administration NLRB challenged the federal courts on whether a company may include “mandatory arbitration” clauses in employment contracts. The courts have held such clauses are legal, but the Obama-era NLRB ruled repeatedly that they are not, even when workers are given the chance to opt out.
In 2016, the Obama-appointee-dominated Board ruled “that graduate students who work as teaching and research assistants at private universities are employees who must be allowed to join or form unions.” Subsequently the NLRB General Counsel declared that Northwestern University must “modify or eliminate ‘unlawful’ rules governing football players and allow them greater freedom to express themselves,” requirements that other teams in the same conference did not need to meet.
The NLRB as appointed during the the Trump administration has overturned or overruled many decisions made by the Board during the Obama administration. The Board has overturned the micro-union ruling, reversed the Browning-Ferris decision, ended the corresponding McDonald’s joint employer complaints, and is in the process of repealing the ambush election rule.
Courts have consistently overturned the NLRB decisions for exceeding the scope of the agency’s power or failing to adhere to the agency’s precedents and procedures.
In 2013, the U.S. Court of Appeals for the Fourth Circuit struck down an NLRB rule requiring a majority of businesses to post notices to employees, in conspicuous places, informing them of their unionization rights, along with other information. According to the court, Congress did not empower the Board to proactively prescribe rules in this manner.
Similarly, in 2016, the U.S. Court of Appeals for the D.C. Circuit struck down a 2014 NLRB decision to impose unprecedented remedies, in the form of attorneys’ fees, and other enforcement measures. In his opinion, Senior Circuit Judge Stephen F. Williams rejected the Board’s attempt to impose attorneys’ fees, because that power was not conferred on the agency by Congress.
In 2016, the D.C. Circuit also held that the NLRB, ignoring its own precedents, should have and “failed to set aside a very close union organizing election in which the threats instilled fear in employees and destroyed the ‘laboratory conditions’ necessary for a fair and free election.” According to the Court, the NLRB improperly certified the election results even though multiple employees had threatened “to start punching people in the face” and “to start beating people up and destroying their cars” if the union was defeated.
The National Labor Relations Act requires that a quorum, consisting of three of the five NLRB seats, exist for the Board to do business.
On multiple occasions the U.S. Supreme Court ruled that the NLRB under President Obama was unconstitutionally deciding cases without a quorum due to Senate confirmation difficulties.
In the first instance, the U.S. Supreme Court ruled that the Board was not authorized to issue decisions during a 27-month period when three of its five seats were vacant. During that time the two remaining board members issued about 600 decisions.
Then on August 27, 2011 NLRB Chair Wilma Liebman’s term expired, leaving the board with only three members, two Democrats and one Republican. Subsequently, a federal judge in Washington, D.C., struck down the NLRB’s efforts to enact the ambush elections rule because only two of the three members participated in the vote and thus the board lacked a quorum to issue the rule.
Improper Recess Appointments
In 2011, President Obama, frustrated by the NLRB’s lack of a quorum, sought to circumvent the Senate’s constitutionally mandated appointment confirmation power by making three purported recess appointments that would restore the Democrats’ majority on the Board. President Obama reasoned that the appointments were valid recess appointments because the Senate was not in session, but the Senate had remained in session — at the insistence of Republicans, to prevent just such unilateral action by the president.  (Both Houses of Congress must agree to a recess; the House of Representatives was then controlled by Republicans and did not agree.)
A constitutional challenge ensued, and the Supreme Court ruled against Obama’s recess appointments, holding that the nearly 700 NLRB decisions the three had participated in were invalid. Among those invalidated decisions were a number of highly controversial pro-union decisions that either modified or overruled past Board precedent.