Federal Labor Relations Statutes:
An Overview
Alexandra Hegji
Analyst in Social Policy
November 26, 2012
Congressional Research Service
7-5700
www.crs.gov
R42526
CRS Report for Congress
Pr
epared for Members and Committees of Congress

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Federal Labor Relations Statutes: An Overview

Summary

Since 1926, Congress has enacted three major laws that govern labor-management relations for
private sector and federal employees. An issue for Congress is the effect of these laws on
employers, workers, and the nation’s economy. The Bureau of Labor Statistics estimates that,
nationwide, 14.8 million employees are union members. In the 112th Congress alone, more than
30 bills were introduced to amend federal labor relations statutes. The proposals ranged from
making union recognition without a secret ballot election illegal to further modifying runoff
election procedures. These legislative activities, and the significant number of employees affected
by federal labor relations laws, illustrate the current relevance of labor relations issues to
legislators and their constituents.
The three major labor relations statutes in the United States are the Railway Labor Act, the
National Labor Relations Act, and the Federal Service Labor-Management Relations Statute.
Each law governs a distinct population of the U.S. workforce.
The Railway Labor Act (RLA) was enacted in 1926, and its coverage extends to railway and
airline carriers, unions, and employees of the carriers. The RLA guarantees employees the right to
organize and collectively bargain with their employers over conditions of work and protects them
against unfair employer and union practices. It lays out specific procedures for selecting
employee representatives and provides a dispute resolution system that aims to efficiently resolve
labor disputes between parties, with an emphasis on mediation and arbitration. The RLA provides
multiple processes for dispute resolution, depending on whether the dispute is based on a
collective bargaining issue or the application of an existing collective bargaining agreement.
The National Labor Relations Act (NLRA) was enacted in 1935. The NLRA’s coverage extends
to most other private sector businesses that are not covered by the RLA. Like the RLA, the NLRA
guarantees employees the right to organize and collectively bargain over conditions of
employment and protects them against unfair employer and union activities. However, its dispute
resolution system differs from the RLA’s in that it is arguably more adversarial in nature; many
disputes are resolved through adjudication, rather than through mediation and arbitration.
The Federal Service Labor-Management Relations Statute (FSLMRS) was enacted in 1978, and
its coverage extends to most federal employees. The basic framework of the FSLMRS is similar
to that of the NLRA; however, employee rights are more restricted under the FSLMRS, given the
unique nature of their employer, the federal government. Federal employees have the right to
organize and collectively bargain, but they cannot bargain over wages or strike. Additionally, the
President has the power to unilaterally exclude an agency or subdivision from coverage under the
FSLMRS if he determines that its primary work concerns national security.
This report provides a brief history and overview of the aims of each of these statutes. It also
discusses key statutory provisions for each statute.

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Federal Labor Relations Statutes: An Overview

Contents
The Railway Labor Act .................................................................................................................... 1
Background................................................................................................................................ 1
Major Amendments ................................................................................................................... 2
1934 Amendments ............................................................................................................... 2
1936 Amendments ............................................................................................................... 3
Additional Amendments ...................................................................................................... 3
Overview ................................................................................................................................... 4
Scope of Coverage ..................................................................................................................... 5
Carrier Defined .................................................................................................................... 5
Employee Defined ............................................................................................................... 6
Rights and Duties Under the Law .............................................................................................. 6
Union Selection ................................................................................................................... 6
Bargaining Subjects ............................................................................................................. 8
Prohibited Conduct .............................................................................................................. 9
RLA Enforcement and Adjudication Processes ....................................................................... 10
National Mediation Board ................................................................................................. 10
Adjustment Boards ............................................................................................................ 10
Judicial Review ................................................................................................................. 11
Dispute Resolution .................................................................................................................. 12
“Major” Disputes............................................................................................................... 12
“Minor” Disputes .............................................................................................................. 13
Emergency Actions ........................................................................................................... 14
National Labor Relations Act ........................................................................................................ 15
Background.............................................................................................................................. 15
Major Amendments ................................................................................................................. 15
The Taft-Hartley Act ......................................................................................................... 15
The Landrum-Griffin Act .................................................................................................. 16
Overview ................................................................................................................................. 16
Scope of Coverage ................................................................................................................... 17
Employer Defined ............................................................................................................. 17
Employee Defined ............................................................................................................. 18
Rights and Duties Under the Law ............................................................................................ 18
Union Selection ................................................................................................................. 19
Bargaining Subjects ........................................................................................................... 23
Prohibited Conduct ............................................................................................................ 24
NLRA Enforcement and Adjudication Processes .................................................................... 27
National Labor Relations Board ........................................................................................ 27
Judicial Review ................................................................................................................. 27
Dispute Resolution .................................................................................................................. 28
Unfair Labor Practice Disputes ......................................................................................... 28
Contract Disputes .............................................................................................................. 29
Emergency Actions ........................................................................................................... 29
The Federal Service Labor-Management Relations Statute........................................................... 30
Background.............................................................................................................................. 30
Executive Order 10988 ...................................................................................................... 30
Executive Order 11491 ...................................................................................................... 30
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Federal Labor Relations Statutes: An Overview

The Federal Service Labor-Management Relations Statute .............................................. 31
Recent Developments ........................................................................................................ 31
Other Federal Workforce Labor-Relations Statutes and Policies ...................................... 31
Overview ................................................................................................................................. 32
Scope of Coverage ................................................................................................................... 32
Employer Defined ............................................................................................................. 33
Employee Defined ............................................................................................................. 33
Labor Organization Defined .............................................................................................. 33
Rights and Duties under the Law ............................................................................................ 34
Bargaining Subjects ........................................................................................................... 34
Union Selection ................................................................................................................. 35
Prohibited Conduct ............................................................................................................ 37
FSLMRS Enforcement and Adjudication Processes ............................................................... 39
The Federal Labor Relations Authority ............................................................................. 39
The Federal Mediation and Conciliation Service .............................................................. 39
The Federal Service Impasses Panel ................................................................................. 40
Judicial Review ................................................................................................................. 40
Dispute Resolution .................................................................................................................. 40
Unfair Labor Practice Disputes ......................................................................................... 40
Contract Disputes .............................................................................................................. 41
Emergency Actions ........................................................................................................... 42

Appendixes
Appendix A. Glossary of Terms ..................................................................................................... 43
Appendix B. List of Acronyms ...................................................................................................... 45
Appendix C. Comparison of RLA, NLRA, and FSLMRA Key Provisions .................................. 46

Contacts
Author Contact Information........................................................................................................... 47
Key Policy Staff ............................................................................................................................. 47

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Federal Labor Relations Statutes: An Overview

ongress has enacted three major laws that govern labor-management relations. The first
law, the Railway Labor Act (RLA), was enacted in 1926. The RLA applies to railway
Cand airline carriers. In 1935, Congress passed the National Labor Relations Act
(NLRA), which applies to private sector employers other than railroad and airline
carriers, and in 1978, Congress enacted the Federal Service Labor-Management
Relations Statute (FSLMRS), which applies to most federal employees. This report provides an
overview of these three labor relations laws by giving a brief history of each law and discussing
how each statute operates and is administered.
This report uses specific “terms of art” relevant to these acts. Appendix A defines these “terms of
art.” Appendix B provides a list of acronyms used in this report. Appendix C contains a table
that compares provisions of all three laws.
The Railway Labor Act
Background
By the late 19th Century, the railroad industry had a significant impact on the U.S. economy. It
helped connect the coasts, making settlement of the western United States much easier. Farmers
were able to ship their goods to cities hundreds of miles away, and consumers were able to
purchase products made in factories across the nation.1 The railroad industry was also a major
consumer of U.S. goods. It used over 75% of the steel produced in the United States, a large
portion of the United States’ extracted coal, and was the nation’s primary employer.2
As the public began to depend on railroads and their regular availability, railroad workers also
began to unionize.3 Because the nation grew dependent on railroads, labor-management disputes
that grew into work stoppages adversely affected the nation’s welfare.
Enacted in 1926, the Railway Labor Act (RLA) continued a pattern of federal attempts at
regulating labor relations in the industry.4 It was the product of an agreement between industry
and labor that Congress adopted. The act was intended to help maintain labor-management peace
within the railway industry and thereby avoid work stoppages that could carry with them adverse
economic and social effects.5 The act’s five major purposes are to:
• prevent any interruption to commerce or to the operation of any carrier;

1 Rudolph Daniels, Trains Across the Continent: North America Railroad History, 2nd ed. (Bloomington: Indiana
University Press, 2000), p. 49.
2 Frank N. Wilner, The Railway Labor Act and the Dilemma of Labor Relations (Omaha: Simmons-Boardman Books,
Inc., 1991), p. 25.
3 The Brotherhood of Locomotive Engineers was the first railway union, organizing in 1863; the Order of the Railway
Conductors, the Brotherhood of Locomotive Firemen, and the Brotherhood of Railroad Trainmen formed shortly
thereafter. Ibid., p. 26.
4 Previous legislative efforts to regulate labor relations include Arbitration Act of 1888, 25 Stat. 501 (1888); Erdman
Act, 30 Stat. 424 (1898); Newlands Act 38 Stat. 103 (1913); Adamson Act 39 Stat. 721 (1916); and Transportation Act
of 1920, 41 Stat. 456 (1920). For an overview of this legislative history, see Wilner, The Railway Labor Act & the
Dilemma of Labor Relations, pp. 29-49.
5 Ibid., pp. 47-49.
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• ensure employees the right to organize or join a labor union;
• ensure railway carriers and employees the right to select bargaining
representatives without interference from the other party;
• provide timely settlement of disputes over rates of pay, rules, or working
conditions; and
• provide timely settlement of disputes growing out of grievances or over
interpretation or application of existing union contracts.6
To accomplish these goals, Congress established a system based on collective bargaining between
labor and management, relying on mediation facilitated by the newly created National Mediation
Board (NMB) and voluntary arbitration if neither collective bargaining nor mediation worked.
Major Amendments
1934 Amendments
The original RLA called for parties to establish by agreement special adjustment boards (SBAs)
to resolve disputes over contract interpretation or application concerning changes in rates of pay,
rules, or working conditions. These boards could be national, regional, or local in scope and
would typically be composed of an equal number of carrier and employee representatives. If an
adjustment board was unable to resolve a dispute because of a deadlock, the dispute could be
referred to the Board of Mediation.7 In the 1934 amendments, Congress created the National
Railroad Adjustment Board (NRAB), which has jurisdiction over contract interpretation and
administration disputes that cannot be resolved through direct negotiations. If the NRAB is
deadlocked, it selects a referee to make an award in the dispute.8 A referee is a neutral person who
sits with the NRAB as a member and makes an award in the dispute at issue. Additionally,
Congress replaced the Board of Mediation with the NMB, which can resolve disputes between
parties concerning changes in rates of pay, rules, working conditions, and any other dispute not
referable to NRAB.
Congress also strengthened the RLA’s provisions that allow carriers and employees to select
representatives freely and without interference from each other. It added language specifically
stating that employees have the right to organize and collectively bargain and added a provision
requiring that a majority of employees in a craft or class must support a union before it is
recognized as their representative. Additionally, the amendments prohibited carriers from denying
or questioning an employee’s right to organize or join a union and tasked the NMB with
investigating representation disputes. The amendments also provided for both civil and criminal
means to enforce the RLA’s provisions.9

6 45 U.S.C. §151a.
7 American Bar Association, “Introduction,” in The Railway Labor Act, ed. Douglas L. Leslie (Washington, D.C.: BNA
Books, 1995), p. 47 (Hereafter cited as ABA, The Railway Labor Act).
8 45 U.S.C. §153, First (l).
9 45 U.S.C. §152, Third, Tenth.
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Congress explicitly prohibited carriers from unilaterally changing pay rates, rules, and working
conditions and added a “status quo” provision, which prohibits changes to pay rates, rules, and
working conditions for 30 days after parties are released from the NMB’s services.10 Finally, the
definition of “carrier” was broadened to include companies that perform operations integral to
railway transportation but not already covered by the act.11
1936 Amendments
In 1936, Congress extended most of the RLA’s provisions to commercial airline carriers that
operate in interstate or foreign commerce and airlines that transport mail for, or under contract
with, the U.S. government.12 Although the airline industry was relatively new in 1936, Congress
acknowledged that it was part of the national transportation system that was vital to the economic
well-being of the nation and that it too would need mechanisms to assist in dispute resolution and
avoiding work stoppages. While the National Labor Relations Act (NLRA) was enacted in 1935
and covered most private sector employees, labor wanted airline carriers to be included under the
RLA, because it believed the RLA’s mediation/arbitration dispute resolution mechanisms
provided more flexibility for the constantly changing, fledging industry.13
Additional Amendments
Between 1951 and 1981, the RLA was the subject of much congressional action. The major
changes enacted are discussed below. This is followed by a depiction of the NLRA provisions
currently in effect.
1951 Amendments
In 1951, Congress amended the RLA to allow carriers and unions to enter into union security
agreements. These agreements require employees to pay union dues equal to the cost of
representation as a condition of employment. However, under a union security agreement,
employees are not required to become formal members of the union. State right-to-work laws that
prohibit or restrict union security agreements are preempted by the RLA.14

10 45 U.S.C. §156.
11 45 U.S.C. §151, First.
12 Most provisions of the RLA, 45 U.S.C. §§151-163, apply to air carriers. 45 U.S.C. §153, which establishes the
National Railroad Adjustment Board, does not apply to air carriers. Title III of the RLA codifies the inclusion of air
carriers under the RLA. The aviation manufacturing (defense, space, and commercial) and general aviation (e.g., flight
training, intercontinental jet transportation of executives and public officers) industries fall under the NLRA’s
jurisdiction.
13 U.S. Congress, Senate Committee on Interstate Commerce, To Amend the Railway Labor Act to Cover Every
Common Carrier by Air Engaged in Interstate or Foreign Commerce, hearing on S. 2496, 74th Cong., 2nd sess., May
20, 1935, pp. 4-10. Carriers neither supported nor actively opposed the legislation. ABA, “Introduction,” in The
Railway Labor Act, p. 56.
14 45 U.S.C. §152, Eleventh.
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1966 and 1981 Amendments
In 1966, Congress amended the RLA to provide for Public Law Boards (PLBs) that can be
established upon the request of either party. Unlike an SBA, the parties do not need to agree on
the creation of a PLB. PLBs are composed of one person selected by the carrier and one person
selected by the union. Each selected board member is compensated by the carrier or union who
selected them. If these selected board members deadlock on an issue, they designate a neutral
third party to decide the dispute. If the selected board members are unable to agree on a neutral
party, the NMB designates the neutral party. The neutral party is compensated by the NMB.15
Finally, in 1981, Congress established emergency procedures for certain publicly funded and
operated carriers that provide commuter rail services.16
FAA Modernization and Reform Act of 2012
The RLA was most recently amended in 2012 during the 112th Congress as part of the Federal
Aviation Administration (FAA) Modernization and Reform Act of 2012. Under these
amendments, for the NMB to conduct an election or otherwise certify a union for a craft of
unrepresented employees, the NMB must receive, along with an application for certification,
authorization cards signed by at least 50% of the employees in the craft or class seeking
representation. Before this amendment, those parties filing an application for certification were
required to include authorization cards signed by 35% of employees in the craft or class seeking
representation.17
The 2012 amendments also changed the rules for runoff elections. Previously, only the names of
the two unions that received the most votes in the first election were on the runoff ballot. If more
employees voted not to have a union than voted for one or both of the unions that received the
most votes, the runoff ballot did not include the choice of not being represented by a union.18
Under the 2012 amendments, the runoff ballot has the two choices, including the choice not to be
represented, that received the most votes in the initial election.19
The 2012 amendments also mandated periodic NMB evaluations and audits.20
Overview
The RLA seeks to prevent labor-management disputes that could interrupt railroad and airline
service and harm the economy. It grants certain rights to both workers and carriers, seeks to
prevent practices that could frustrate a peaceful worker-carrier relationship, and provides
mechanisms for workers and carriers to resolve disputes.

15 45 U.S.C. §153, Second. Jacob Seidenberg, “Grievance Adjustment in the Railroad Industry,” in The Railway Labor
Act at Fifty: Collective Bargaining in the Railroad and Airline Industries, ed. Charles M. Rehmus (Washington, D.C.:
National Mediation Board, 1977), pp. 223-224.
16 45 U.S.C. 159a (c).
17 29 C.F.R. §1206.2. Larry Swisher, “NMB Ends Longstanding Policy, Adopts Rule for Majority Vote in
Representation Elections,” Daily Labor Report, May 11, 2010, p. AA-1.
18 29 C.F.R §1206.1(b).
19 FAA Modernization and Reform Act of 2012, P.L. 112-95 (2012).
20 Ibid.
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To achieve these goals, the RLA regulates the labor-management relationship between workers
and carriers in the railway and airline industries. It provides parties with a standard process for
choosing a union to act as an employee representative in the collective bargaining process and
details which individuals can participate in the process. Once a union is selected, the RLA
governs which subjects workers and unions can negotiate. The RLA also regulates how workers,
carriers, and unions should behave towards each other during the union selection and collective
bargaining processes and prohibits certain unfair actions.
The RLA provides for several entities to administer and enforce its provisions. The National
Mediation Board (NMB) is the primary agency charged with administration and enforcement of
the act and also provides mediation service to parties who cannot reach a resolution in a dispute.
The National Railway Adjustment Board (NRAB) is an NMB tribunal that hears and decides
(arbitrates) grievances in the railway industry. Additionally, the RLA allows parties to a dispute in
the railway industry to establish their own arbitration tribunals, known as Special Boards of
Adjustment (SBAs), or a single party to request that the NMB create a Public Law Board (PLB)
to arbitrate its dispute. Various System Boards of Adjustment (System Boards), created jointly by
labor and management, arbitrate disputes in the airline carrier industry. Finally, if an unresolved
dispute threatens to substantially interrupt commerce, the President can create a Presidential
Emergency Board (PEB) to investigate and aid in the resolution of the dispute.
Scope of Coverage
The RLA regulates the collective bargaining rights and duties of carriers and employees in the
railway and airline carrier industries. “Collective bargaining” refers to the process of negotiation
between these parties regarding working conditions. Employers are referred to as “carriers” in the
RLA. The term “carrier” is used throughout this discussion for consistency with the act. The
preliminary sections of the act define “carrier” and “employee,” and those definitions are used to
determine who is covered by the act and its accompanying regulations.
Carrier Defined
Under the RLA, a carrier is defined as:
any company which is directly or indirectly owned or controlled by or under common
control with any carrier by railroad and which operates any equipment or facilities or
performs any service (other than trucking service) in connection with the transportation,
receipt, delivery, elevation, transfer in transit, refrigeration or icing, storage, and handling of
property transported by railroad, and any receiver, trustee, or other individual or body,
judicial or otherwise, when in the possession of the business of any such “carrier” 21
In addition to railroads, later adopted provisions cover airline carriers. The RLA also applies to
any company that is directly or indirectly controlled by, or under common control with, a railroad
or airline carrier that falls under the coverage of the act.

21 45 U.S.C. §151, First.
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The RLA specifically excludes “trucking service” and most “street, interurban, or suburban
electric railways” from its scope. However, if a trucking company almost exclusively performs
services for a rail carrier, the trucking exemption may not apply.22
Employee Defined
The RLA defines an employee as any “person in the service of a carrier ... who performs any
work defined as that of an employee or subordinate official.”23 Temporary, probationary and
furloughed employees generally are within the RLA’s definition of “employee.”24
Rights and Duties Under the Law
The act both mandates and prohibits certain actions of all parties involved in a labor-management
dispute. The act grants employees the right to organize and collectively bargain. It also sets forth
the procedures and standards to be applied in the selection of a union as an employee
representative and the subsequent relations between the union, the carrier, and the employees.
Employees can select a union that will represent their craft or class’s interests in bargaining with
carriers over working conditions. A craft or class is a group of employees who are or wish to be
represented by a union. A union can be recognized as a representative through either a secret
ballot election or voluntary carrier recognition.
Certain conduct is prohibited in the carrier-union-employee relationship. Carriers and unions
cannot interfere with employees’ right to organize and select a union representative. Carriers can
only bargain with the employee-selected union, and the parties cannot use self-help until they
have reached an impasse in negotiations and have exhausted all of the RLA’s dispute resolution
mechanisms. Self-help is a way in which one party can exert pressure on the other party and
occurs outside of the formal dispute resolution process. For example, strikes and worker lockouts
are forms of self-help.
Union Selection
The RLA specifically states that employees have a right to select a union free from carrier
interference or influence. A majority of a craft or class determines the union to represent that craft
or class.25 The NMB has exclusive jurisdiction to certify unions. A union can be certified as an
employee representative if at least one party to a representation dispute petitions the NMB to
conduct a secret ballot election and the union receives a majority of votes cast. However, the
NMB will recognize the validity of a carrier-union agreement under which a carrier voluntarily
recognizes a union as an employee representative. The NMB also has exclusive jurisdiction to
determine a craft or class of employees, and this decision is practically unreviewable by courts.26

22 45 U.S.C. §151.
23 45 U.S.C. §151, Fifth.
24 National Mediation Board, Representation Manual, March 21, 2011, §9.2, http://www.nmb.gov/representation/
representation-manual.pdf (hereafter cited as NMB, Representation Manual).
25 45 U.S.C. §152, Third, Fourth.
26 45 U.S.C. §152, Ninth.
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Determination of a Craft or Class
In defining a class or craft, the NMB will consider many factors including historical or traditional
crafts and similarity of job functions between employees.27 The NMB generally adheres to the
traditional railroad craft or class distinctions.28 When Congress extended coverage of the RLA to
airlines, the industry was relatively new and did not have historical crafts. However, over the
years, the NMB has come to distinguish several crafts within the industry.29
A union may only be certified on a system-wide basis. Union certification extends to members of
that craft throughout the carrier’s organization. The craft or class must include all employees who
are eligible to be in the craft or class, including those at different locations.30
Eligibility to Vote in a Secret Ballot Election
Employees who regularly work in a craft or class are eligible to vote in a secret ballot election.31
Employees who are furloughed, on a leave of absence, or probationary are eligible to vote.
Contractors, retirees, and managers are ineligible to vote. Part-time, temporary, and dismissed
employees may be eligible to vote, and the determination is made on a case-by-case basis.32
Certification
To determine a union, the NMB can conduct elections or use “any [other] appropriate method.”33
Before the NMB selects a method to determine a union, it must complete an investigation to
determine whether a representation dispute exists. To begin the investigation process, either party
can petition for an investigation. The petition must be supported by a showing of interest in which
a majority of workers in the craft or class involved sign authorization cards.34 An NMB
investigator compares the authorization cards with the list of system-wide, potential eligible

27 NMB, Representation Manual, §9.1.
28 The following is a list of some of the well-recognized traditional crafts or classes: Locomotive Engineers;
Locomotive Firemen and Hostlers; Conductors; Trainmen; Yardmen; Yardmasters; Office, Station, and Store
Employees; Telegraph Workers; Dispatchers; Signalmen; Maintenance of Way Employees; Machinists; Boilermakers
and Blacksmiths; Sheet Metal Workers; Electrical Workers; Dining Car Attendants; Carmen and Coach Cleaners; and
Powerhouse Employees and Shop Laborers. ABA, “Selecting A Bargaining Representative,” in The Railway Labor
Act, pp. 98-99.
29 Some of the traditional crafts or classes within the airline industry include ground personnel (mechanics, ground
service personnel, and plant maintenance personnel), clerical and office employees, fleet and passenger service
employees, deck crew, and cabin crew. ABA, “Selecting A Bargaining Representative,” in The Railway Labor Act, pp.
100-105.
30 National Mediation Board, Annual Performance and Accountability Report FY2011, November 14, 2011, p. 27,
http://www.nmb.gov/documents/2011annual-report/pdf/NMB2011_00_full.pdf (hereafter cited as NMB, FY2011).
31 An individual must be employed in the craft on and after the cut-off date. The cut-off date is the last day of the
payroll period ending before an application was submitted to the NMB.
32 NMB, Representation Manual, §9.2.
33 45 U.S.C. §152, Ninth.
34 45 U.S.C. §152, Twelfth. The NMB can dismiss applications for investigation under one of several election bar
doctrines. Under these doctrines, the NMB, generally, will dismiss an application for a specific amount of time after an
election has been held or a previous application has been filed between the same craft and carrier as in the current
election or application before it. 29 C.F.R. §1206.4.
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voters provided by the carrier to determine if a sufficient percentage of authorization cards was
submitted. An investigator reports his findings to the NMB’s General Counsel (see discussion of
“RLA Enforcement and Adjudication Processes” below). If an investigator finds that a dispute
exists, the General Counsel will establish the way in which the dispute will be resolved (e.g.,
secret ballot election).35
The NMB may conduct elections by mail, telephone, Internet, or in-person ballot. A union must
receive a majority of votes cast to be certified by the NMB as the employees’ bargaining
representative. In 2010, this rule replaced a 75-year-long NMB practice that required that a
majority of workers vote for representation before a union was certified. The former practice
effectively counted all those workers who did not vote in the election as “no union” votes. Now,
an employee who does not vote is no longer counted in the vote tally. 36 If no choice receives a
majority of the votes, the NMB may conduct a runoff election between the two choices that
receive the most votes.37
The RLA does not preclude a carrier from voluntarily recognizing a union as an employee
representative. If employees are unrepresented, the union seeking certification is the only
organization involved, and the parties agree in writing, the NMB can certify the union based
solely on the union’s presenting authorization cards signed by a majority of employees in the
craft.38 However, if the union is for a group of employees not generally recognized as a craft or
class or if the craft or class is not represented system-wide, the voluntary recognition does not
control the NMB’s determination in a later representation dispute.39
Decertification
A union can have its certification revoked through decertification. The NMB does not have a
formal procedure for decertifying a union, but has several practices that effectively remove an
incumbent union’s certification.40 A union will be decertified when an individual or union
petitions for a secret ballot election and less than 50% of voting employees cast ballots for the
incumbent union or when the existing union freely renounces its certification.41
Bargaining Subjects
The RLA expressly mandates that all carriers and employees use “every reasonable effort” to
create and maintain agreements on pay rates, rules, and working conditions and to settle all
disputes arising out of such agreements (known as “direct negotiations”).42

35 NMB, Representation Manual, §§2.0-5.0.
36 29 C.F.R. §1202.4. Bureau of National Affairs, “NMB Ends Longstanding Policy, Adopts Rule For Majority Vote in
Representation Elections,” Daily Labor Report, no. 89, May 11, 2010, p. AA-1.
37 FAA Modernization and Reform Act of 2012, Public Law No: 112-95 (2012).
38 NMB, Representation Manual, §7.0.
39 ABA, “Selecting a Bargaining Representative,” in The Railway Labor Act, p. 107.
40 ABA, “Selecting a Bargaining Representative,” in Railway Labor Act, pp. 135-137.
41 See 45 U.S.C. §152, Fourth.
42 45 U.S.C. §152, First.
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Prohibited Conduct
The RLA does not specifically list the unfair labor practices that it prohibits. Instead, the NMB
looks to general considerations of fair dealing in defining the few bounds that the RLA does set.
“Fair dealing” includes both unions’ and carriers’ responsibility to bargain in good faith, to
recognize and respect each parties’ representatives and concerns, and to refrain from interfering
with each parties’ rights.43
During Union Organization Efforts
The act protects employees’ right to organize by prohibiting “interference, influence, or coercion
by either party over the designation of representatives by the other.”44 Carriers may not deny or
question an employee’s right to organize, and carriers cannot use funds to maintain or assist a
union in carrying out its duties or to influence an employee to leave or remain in a union.45
Carriers cannot require prospective employees to sign an agreement to join or not to join a
union.46 Any carrier who willfully violates any of these provisions may be subject to civil and
criminal penalties.47 Additionally, the NMB can order rerun elections to eliminate the potential
effects of any interference.48
During an Ongoing Carrier-Union Relationship
After certification of a union, carriers have the duty to bargain with that union.49 A carrier has the
duty to bargain only with the union and not directly with employees. Carriers cannot engage in
direct communications with employees that give the impression that a carrier is unwilling to
negotiate or communications that may disrupt negotiations or destroy a union’s bargaining
powers.50
During Self-Help
Self-help is the way in which one party can exert pressure on the other party and occurs outside of
the formal dispute resolution process. Self-help includes peaceful striking, picketing, and locking
out employees. Parties may not engage in self-help until they have exhausted the RLA’s dispute
resolution mechanisms; any self-help used afterwards must be lawful. Among the permissible
actions employees can take are peaceful picketing, intermittent striking, and selective striking.

43 William E. Thoms and Frank J. Dooley, “Collective Bargaining Under the Railway Labor Act,” Transportation Law
Journal, vol. 20 (1991), p. 280.
44 45 U.S.C. §152, Third. Instances of carrier interference include firing or demoting employees for supporting a union,
giving employees inaccurate information about an election, favoring one union candidate over another, granting or
withholding benefits, and making threats. ABA, “Protection of Employees’ Right of Self-Organization,” in The
Railway Labor Act, pp. 163-173.
45 45 U.S.C. §152, Fourth.
46 45 U.S.C. §152, Fifth.
47 45 U.S.C. §152, Tenth.
48 45 U.S.C. §152, Ninth.
49 Ibid.
50 ABA, “Protection of Employees’ Right to Self-Organization,” in The Railway Labor Act, pp. 186-187, 200-202.
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Additionally, employees may be able to engage in “secondary activity,” through which they exert
pressure on an entity with which they do not have a dispute.51
A carrier may hire permanent replacements for striking employees and keep those replacements at
the end of the strike. However, a carrier may not discharge or eliminate the jobs of striking
employees as retaliation for a strike.52 A court has the ability to order parties to stop self-help (i.e.,
issue an injunction), if it finds that a carrier or a union has violated the status quo (i.e., neither
party can change the current practices under an agreement).53
RLA Enforcement and Adjudication Processes
The RLA established several entities to administer and enforce the act. The National Mediation
Board (NMB) is the primary agency charged with administration and enforcement and also
provides mediation services to parties to a dispute. The National Railroad Adjustment Board
(NRAB) is a tribunal under the NMB that hears and decides (arbitrates) grievances in the railway
industry. Alternatively, parties in the railway industry can create their own arbitration tribunals,
known as Special Boards of Adjustment (SBAs), or a single party can request that the NMB
create a Public Law Board (PLB) to arbitrate the dispute. In the airline industry, various System
Boards of Adjustment (System Boards), created jointly by labor and management, arbitrate
disputes. The decisions of these entities can be reviewed by federal courts in limited
circumstances.
National Mediation Board
The NMB is an independent agency that was created to administer and enforce the RLA. It is
headed by a three member board. Each member serves full time and is appointed by the President
and confirmed by the Senate for a term of three years. No more than two members can be of the
same political party.54 The three members self-designate a chairman on a yearly basis. The NMB
has delegated its powers to investigate and adjudicate representation disputes to its General
Counsel and oversees mediation and arbitration under the RLA.55
Adjustment Boards
The NRAB, SBAs, and System Boards are adjustment boards. An adjustment board is an entity
that arbitrates disputes. Under the RLA, three types of adjustment boards exist for the railway
industry (NRAB, SBAs, PLBs) and one exists for the airline carrier industry (System Boards).
The NRAB is a federal tribunal under the NMB that arbitrates grievances in the railroad industry.
The NRAB consists of 34 members; seventeen are selected by carriers, and seventeen are selected
by labor organizations of national scope.56 The NRAB is divided into four divisions that generally

51 For instance, a union may appeal to consumers to discontinue use or purchase of a business’s products or services or
attempt to dissuade employees from working for a particular employer.
52 ABA, “Exercise of Economic Weapons,” in The Railway Labor Act, pp. 320-321.
53 ABA, “Negotiation of Collective Bargaining Agreements,” in The Railway Labor Act, pp. 241-242.
54 45 U.S.C. §154, First.
55 See NMB, FY2011, pp. 4, 8.
56 45 U.S.C. §153, First, (a).
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operate independently of each other and process disputes involving specific types of employees.57
Parties may seek compliance with NRAB decisions in federal district courts. District courts can
also affirm or set aside, in whole or in part, NRAB orders.58
Alternatively, parties to a railway industry dispute can voluntarily agree to create an SBA, an
arbitration tribunal. The NMB provides a list of potential arbitrators, known as the Roster of
Arbitrators, to the parties, and the parties select the arbitrator from that list.
Finally, in the railway industry, a single party can request the establishment of a PLB to settle
disputes for an individual railroad. Again, the parties choose arbitrators from the NMB’s Roster of
Arbitrators. The party upon whom the request is made must then enter into an agreement with the
requesting party, establishing the board within 30 days of the request. If that party fails to agree to
the creation of a PLB or fails to designate a member to the PLB, the requesting party may ask that
the NMB designate an arbitrator.59
In all railway arbitration proceedings, the NMB pays the salaries and travel expenses of the
arbitrators.60
When the RLA was amended to include airline carriers, it maintained the requirement of
compulsory arbitration in certain disputes and established the National Air Transit Adjustment
Board,61 however, it was never created. Rather, airline carriers and unions created their own
temporary special boards of adjustment, System Boards. Like railway carrier disputes, parties to
an airline carrier dispute are required to engage in direct bargaining, but System Boards have no
formal procedures and are limited in the jurisdiction agreed upon by the parties. System Boards
must, therefore, look to collective bargaining agreements to determine how to proceed with a
grievance.62
Unlike railway arbitration proceedings, the NMB does not pay the salaries and travel expenses to
arbitrators in airline carrier industry disputes.63
Judicial Review
Grounds for judicial review and overturning either an NMB order or an adjustment board award
are very narrow. A court can overturn an NMB order releasing parties from mediation if the order
is outside of the NMB’s jurisdiction or contrary to specific prohibitions in the RLA.64

57 The NRAB’s First Division processes disputes involving “operating” employees (e.g., engineers). The Second
Division processes disputes involving “shop” employees (e.g., repairmen). The Third Division processes dispute
involving employees in miscellany crafts, and the Fourth Division processes disputes involving employees who
transport passengers or property by water. 45 U.S.C. §153, First, (h).
58 45 U.S.C. §153, First, (p) and (q).
59 45 U.S.C. §153, Second.
60 NMB, FY2011, p. 21. The daily pay rate for arbitrators on the NMB’s Roster of Arbitrators is $300 per day. National
Mediation Board, Frequently Asked Questions: Arbitration, http://www.nmb.gov/arbitration/afaq.html.
61 45 U.S.C. §185.
62 45 U.S.C. §184.
63 NMB, FY2011, p. 21.
64 45 U.S.C. §159.
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Adjustment board awards may be reviewed and overturned if the award is affected by fraud, an
adjustment board oversteps its jurisdiction, or the award does not conform to the RLA.65
Additionally, an award can be called into question, referred to in the RLA as “impeached.” To do
so, a party must file a petition to impeach within 10 days of the final judgment. A decision can be
impeached for several reasons: (1) if the award or proceedings do not conform to the substantive
or procedural requirements of the RLA; (2) if the parties made a voluntary agreement to arbitrate
and the award does not conform to the agreement; or (3) if a member of the board that rendered
the award or a party to the arbitration was found guilty of fraud or corruption, and that fraud or
corruption affected the outcome of the arbitration.66Any decision reached by an adjustment board
is final and binding on the parties and can be enforced in the U.S. district courts.67
Dispute Resolution
Upon certification, a carrier has the duty to negotiate with, and only with, the certified union.68 If
parties fail to reach an agreement through direct negotiations, further RLA procedures may be
invoked. The RLA divides disputes into two categories: major and minor disputes, and each type
has its own dispute resolution mechanism. If a dispute cannot be resolved and the President
believes that the dispute may substantially disrupt interstate commerce, he may invoke
emergency procedures to resolve the dispute.
“Major” Disputes
“Major” disputes are those related to the process of collective bargaining (i.e., the parties cannot
reach an agreement as to pay rates, rules, and working conditions). In the railway industry,
agreements generally do not have expiration dates.69 Rather, they become subject to change on a
specified date within the original agreement. Major disputes, therefore, include both bargaining
on the terms of an initial labor-management agreement and on any subsequent changes to the
agreement the parties may wish to make.
Carriers and employees must give 30 days’ written notice of any intended changes to the
agreement to the other party. This is known as a “Section 6 notice.” The parties must then agree
on the time and place of a conference about the proposed changes within 10 days of receipt of the
notice, and the conference between the parties must take place within the 30 days. Once the
Section 6 notice has been served, each party must maintain the status quo.70
At any time during this direct bargaining process, either party may invoke the NMB’s mediation
services.71 Parties continue to negotiate in the presence of an NMB mediator, and the mediator

65 45 U.S.C. §153, First (p) & (q).
66 45 U.S.C. §159, Second.
67 ABA, “Enforcement of Collective Bargaining Agreements,” in The Railway Labor Act, p. 269.
68 See 45 U.S.C. §152, Ninth.
69 ABA, “Negotiation of Collective Bargaining Agreements,” in The Railway Labor Act, p. 251.
70 45 U.S.C. §156. “Status quo” refers to the rates of pay, rules, and work conditions in effect before a dispute arises.
The purpose of maintaining the status quo during a dispute is to prevent either party from engaging in self-help until all
negotiation and mediation procedures have been exhausted. ABA, “Negotiation of Collective Bargaining Agreements,”
in The Railway Labor Act, p. 232.
71 45 U.S.C. §155.
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works with both parties, helping them to resolve their dispute. The NMB has sole discretion to
decide when the parties can discontinue mediation because they have either reached an agreement
or they are at an impasse and cannot reach an agreement.72
If the parties cannot reach an agreement, the NMB will “proffer arbitration” and invite the parties
to submit their dispute to an arbitrator. This arbitration is voluntary-but-binding and is held before
the appropriate adjustment board. If either or both parties refuse arbitration, the NMB sends
written notice to the parties terminating its services. The parties then enter into a 30-day “cooling-
off” period during which they cannot change the terms of the agreement.73 After the cooling-off
period, if the parties have not reached a mutual agreement, then they may exercise self-help,
including strikes, lockouts, and imposition of new rules on the workforce.74
If parties do agree to arbitration, the arbitration board will comprise three members. Each party
will select one arbitrator. These two arbitrators will then select a third. If the two arbitrators fail to
select another within five days after their first meeting, the NMB will select the third arbitrator.75
The arbitrators’ decision is final as to all issues placed before them.76
“Minor” Disputes
A “minor” dispute is one involving the interpretation or application of an already existing
agreement. As with major disputes, the parties have a duty to first engage in direct negotiations,77
but, generally, a carrier may act on its own interpretation of the existing agreement while waiting
for resolution of the dispute by an Adjustment Board.78
The RLA mandates that minor disputes be submitted to compulsory arbitration in front of the
appropriate adjustment board, the NRAB for the railway industry and System Boards of
Adjustment for airline carriers. In arbitration, members of the NRAB conduct hearings and make
findings on the disputes. The parties must comply with the orders of the NRAB.79
Alternatively, the parties can mutually agree to form their own, temporary, adjustment board, a
Special Board of Adjustment (SBA) that decides specific issues agreed upon by the parties. If one

72 ABA, “Selecting a Bargaining Representative,” in The Railway Labor Act, pp. 128-129.
73 45 U.S.C. §155, First.
74 45 U.S.C. §156.
75 45 U.S.C. §157, First. The parties can also choose a six-member arbitration board where each party selects two
members of the board; those four members, by a majority vote, then select two other arbitrators. If they fail to select the
remaining two arbitrators, the NMB will select them.
76 45 U.S.C. §159, Second.
77 45 U.S.C. §152.
78 ABA, “Negotiation of Collective Bargaining Agreements,” in The Railway Labor Act, p. 234. Although carriers are
not required to maintain the status quo in minor disputes, injunctions may be issued to preserve the status quo until the
dispute is resolved. The Norris-LaGuardia Act, which generally prohibits courts from issuing injunctions in labor
disputes, does not apply to disputes under the RLA. Injunctions are allowed against parties who violate the status quo
provisions of the RLA. See ABA, “Enforcement of Collective Bargaining Agreements,” in The Railway Labor Act, pp.
290-295.
79 45 U.S.C. §153, First, (j) and (o).
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of the parties is dissatisfied with the SBA, it may give 90 days’ notice to the other party to be
brought under the jurisdiction of the NRAB or the System Boards of Adjustment.80
Finally, a single party can request of the other party that a PLB be created to resolve a dispute.
The requesting party can select an arbitrator and if the other party does not agree to the
establishment of a PLB or fails to select an arbitrator, the NMB will designate an arbitrator to sit
on the PLB. If members of the PLB are unable to agree on an issue, they must select a neutral
member of the board to decide the matter. If PLB members cannot agree on a neutral member
within 10 days of their failure to agree on an issue, either member can request the NMB to
appoint a neutral board member. 81
Emergency Actions
Although a carrier and a union may exercise self-help at the end of the dispute resolution process,
the NMB may determine that an unresolved dispute threatens “substantially to interrupt interstate
commerce.” It may then recommend that the President create a Presidential Emergency Board
(PEB). The President may, in his discretion, create a PEB to investigate and issue a report on the
dispute within 30 days of its creation. Parties must maintain the status quo upon the creation of a
PEB and for the 30 days following the release of its report, unless the parties reach an agreement
to the dispute.82
Publicly funded and operated commuter rails have a different set of PEB procedures. If the
President decides not to create a PEB under the above mentioned procedures, parties to the
dispute or the governor of a state through which the commuter rail runs may request that the
President establish a PEB. If the parties have not settled within 60 days of the establishment of
the PEB, the NMB is required to conduct a public hearing at which the parties explain why they
have not accepted the PEB’s dispute resolution recommendations. If the parties still have not
reached a resolution 120 days after the PEB’s creation, then any party or governor of a state
through which the commuter rails run can request a second PEB. Upon such a request, the
President must establish a second PEB. The parties must then submit to the NMB an offer for
settlement within 30 days. The PEB than has 30 days to report to the President which offer it
finds most reasonable. Throughout this process, parties may not engage in self-help.83
For both commuter and non-commuter rails, Congress may intervene (e.g., adopt PEB
recommendations) in a dispute to prevent a work stoppage. On several occasions, Congress has
either created another study commission or adopted PEB recommendations, effectively imposing
a new agreement on the parties.84

80 45 U.S.C. §153, Second.
81 Ibid.
82 45 U.S.C. §160.
83 45 U.S.C. §159a.
84 ABA, “Negotiation of Collective Bargaining Agreements,” in The Railway Labor Act, p. 221. For example, in P.L.
88-108, Congress established an arbitration board to resolve a dispute over the use of railroad firemen and manning
levels for railroad crews. Congress has also created its own compromise packages and imposed settlements from other
disputes on uncompromising unions. William E. Thoms and Frank J. Dooley, “Collective Bargaining Under the
Railway Labor Act,” Transportation Law Journal, vol. 20 (1991), pp. 224, 279.
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National Labor Relations Act
Background
In 1933, the United States was in the midst of the Great Depression. President Franklin D.
Roosevelt and Congress pursued policies to stabilize a weak economy and reduce unemployment.
To these ends, the National Industrial Recovery Act of 1933 (NIRA) was enacted, which
guaranteed workers the right to organize and to collectively bargain. By enabling unions to exert
pressure on employers to increase wages, Congress believed workers would spend their higher
wages, thus increasing the nation’s purchasing power.85
NIRA did not prohibit so-called company-dominated unions, unions that are organized or assisted
by an employer to such an extent that they appear to be an employer’s creation and not an
employee bargaining representative. Also, some employers refused to recognize employee-
selected unions, which prompted some employees to strike.86 Ultimately, the U.S. Supreme Court
declared that NIRA was unconstitutional. Congress then enacted the National Labor Relations Act
(NLRA), which is often called the Wagner Act, after its Senate sponsor, Senator Robert Wagner.
Unlike its predecessor, the Wagner Act prohibited company-dominated unions and established the
majority rule principle for worker representation. The act proved more effective than NIRA in
protecting and guaranteeing employee rights.87
Major Amendments
The Taft-Hartley Act
Although the Wagner Act, by many accounts, accomplished Congress’s goals, some critiqued it as
one-sided and believed it too heavily favored unions, enabling excessive union power and
disrupting the labor-management equilibrium.88 In 1947, Congress passed the Taft-Hartley Act,
named after its sponsors Senator Robert Taft and Representative Fred Hartley. This act placed
some restrictions on unions and guaranteed certain freedoms of conduct and speech to employers.
Specifically, the Taft-Hartley Act enumerated prohibited unfair labor practices for unions,89
required unions to give notification before striking, prohibited closed shops,90 and outlawed

85 Benjamin J. Taylor and Fred Whitney, U.S. Labor Relations Law: Historical Development (Englewood Cliffs, NJ:
Prentice Hall, 1992), pp. 153-154 (hereafter cited as Taylor & Whitney, U.S. Labor Relations Law).
86 NIRA also did not provide enforcement procedures, specify prohibited antiunion conduct, require employers to
bargain with employee-chosen representatives, or prohibit employer discrimination against employees for union
activities. Ibid., pp. 154-155.
87 Richard D. Polenberg, The Era of Franklin D. Roosevelt 1933-1945 (Boston: Bedford/St. Martin's, 2000), pp. 68-69.
For a statistical assessment of union growth after the NLRA was enacted, see Taylor & Whitney, U.S. Labor Relations
Law, pp. 198-200.
88 For instance, under the NLRA as originally enacted, no remedy existed against unions who imposed their will on
employees, therefore, some unions used intimidation to garner support, rather than campaign for votes. Gerard D.
Reilly, “The Legislative History of the Taft-Hartley Act,” George Washington Law Review, vol. 29 (1960), pp. 286-
287.
89 29 U.S.C. §158.
90 29 U.S.C. §158(a)(1) & (b)(1)(A). A closed shop is one in which an employer is required to employ only members of
(continued...)
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secondary boycotts.91 The act allowed states to enact right-to-work laws and gave employers the
right to request an election to determine which of multiple unions claiming to represent
employees was in fact the employee representative.92 Supervisors were prohibited from joining
unions,93 and employees were given the right to petition to decertify a union.94 Additionally,
Congress restructured the National Labor Relations Board (NLRB), the federal agency charged
with enforcing the NLRA.95
The Landrum-Griffin Act
Ten years following the enactment of the Taft-Hartley Act, in response to allegations of union
corruption, Congress passed the Labor Management Reporting and Disclosure Act of 1959,
commonly called the Landrum-Griffin Act after its sponsors Representative Phillip Landrum and
Senator Robert Griffin.96 The act applies to parties covered under both the NLRA and the Railway
Labor Act (RLA). It added a union member “Bill of Rights” that enumerated five basic rights of
union members: equality of rights, safeguards against improper disciplinary actions, freedom of
speech, freedom from interference with the right to sue, and freedom from increased dues except
by majority vote. The act also increased internal union transparency by mandating that each union
enact by-laws and issue yearly financial disclosures.97 Additionally, the act set forth specific
election procedures to help ensure that internal union elections were free of corruption.98
Overview
The NLRA seeks to prevent labor-management disputes that could burden or obstruct commerce
and harm the economy. It grants certain rights to both workers and employers, seeks to prevent
practices that could frustrate a peaceful worker-employer relationship, and provides mechanisms
for workers and employers to resolve disputes.
To achieve these goals, the NLRA regulates the labor-management relationship between workers
and employers in the private sector, excluding the railway and airline carrier industries. It
provides parties with a standard process for choosing a union to act as an employee representative

(...continued)
a particular union. Employers may hire anyone, but that person will be required to join the union within a specified
amount of time. While these are prohibited under the NLRA, they are permitted under the Railway Labor Act. See
“Railway Labor Act: Union Security Agreements,” supra.
91 29 U.S.C. §158 (b)(3)(A).
92 29 U.S.C. §159(c)(1)(B).
93 29 U.S.C. §152.
94 29 U.S.C. §159(c)(1)(A).
95 29 U.S.C. §153.
96 In the statute’s declaration of findings, purposes, and policies, Congress stated:
[T]here have been a number of instances of breach of trust, corruption, disregard of the rights of
individual employees, and other failures to observe high standards of responsibility and ethical
conduct which require further and supplementary legislation that will afford necessary protection of
the rights and interests of employees and the public generally as they relate to the activities of labor
organizations, employers, labor relations consultants, and their officers and representatives.
(29 U.S.C. §401(b))
97 29 U.S.C. §§411, 431.
98 29 U.S.C. §481.
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in the collective bargaining process and details which individuals can participate in the process.
Once a union is selected, the NLRA governs which subjects workers and unions can negotiate.
The NLRA also regulates how workers, employers, and unions should behave towards each other
during the union selection and collective bargaining processes and prohibits certain unfair
actions.
To administer and enforce the act, the NLRA established the National Labor Relations Board
(NLRB). The NLRB investigates and adjudicates representation disputes, complaints of unfair
labor practices (ULPs), and contract disputes. The NLRB’s General Counsel investigates and
prosecutes ULP claims, and the General Counsel has delegated its authority to issue ULP
complaints to regional directors.
Additionally, the President has the ability to create a Presidential Emergency Board (PEB) to
investigate and aid in dispute resolution when he believes that a threatened or actual strike or
lockout will endanger national health.
Scope of Coverage
The NLRA regulates collective bargaining rights and duties for employers, employees, and
unions in the private sector, excluding the railway and airline carrier industries. While
commercial airline carriers fall under the RLA’s jurisdiction, the aviation manufacturing (defense,
space, and commercial) and general aviation (e.g., flight training, intercontinental jet
transportation of executives and public officers) industries fall under the NLRA’s jurisdiction.99
As with the RLA, the NLRA’s preliminary sections define “employer” and “employee,” and those
definitions determine who is covered by the act’s regulations.
Employer Defined
The NLRB has jurisdiction over employers whose operations affect interstate commerce.100 The
NLRB can assert jurisdiction over any employer whose operations affect commerce. However,
the NLRB has established administrative standards, limiting its jurisdiction to those cases
involving employers with a substantial effect on commerce. If an employer meets these
administrative standards, the NLRB must review the case. These standards are based on an
employer’s annual sales or gross revenue. For example, retailers must have annual sales of at
least $500,000 and privately operated hospitals must have an annual revenue of at least
$250,000.101
The NLRA’s definition of employer includes any person “acting as an agent of an employer,
directly or indirectly.” This definition does not include the United States, a wholly owned

99 Robert W. Kaps, Air Transport Labor Relations (Southern Illinois University Press, 1997), pp. 5-9.
100 29 U.S.C. §152.
101 NLRB, Basic Guide to the NLRA, pp. 33-34, https://www.nlrb.gov/sites/default/files/documents/224/basicguide.pdf.
CRS Report RL32930, Labor Union Certification Procedures: Use of Secret Ballots and Card Checks, by Gerald
Mayer.
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government corporation, a state or its subdivisions, or any Federal Reserve Bank.102 International
organizations, while not specifically enumerated, are excluded from NLRA coverage.103
Employee Defined
An employee includes anyone who works for another for hire. Individuals who have stopped
working because of a current labor dispute or unfair labor practice and who have not obtained
equivalent employment are also included in the definition. Agricultural workers, domestic
workers employed by a family or person within their home, individuals employed by their parent
or spouse, independent contractors, and supervisors are not employees for the purposes of the
NLRA.104
If a person does not fall under one of the excluded categories, he is assumed to be an employee
under the act. Therefore, nonresident aliens and hospital resident physicians are considered
employees. However, graduate students working in teaching positions and unpaid volunteers are
not employees.105
A supervisor is not an employee. An individual is a supervisor if he has the authority to “hire,
transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other
employees, or responsibly direct them, or to adjust their grievances” and if that authority requires
the use of independent judgment.106 Individuals who are temporarily holding a supervisory
position are usually considered employees and, therefore, afforded NLRA protections.107
Managerial employees, although they may not exercise supervisory functions, are exempt from
NLRA coverage because they “formulate and effectuate management policies” and have
discretion in performing their jobs.108
Rights and Duties Under the Law
The act both mandates and prohibits certain actions of all parties involved in a labor-management
dispute. The act grants employees the right to organize and collectively bargain and sets forth the
procedures and standards to be applied in the selection of a union as an employee representative
and the subsequent relations between the union and the employer.
During organization, employees can select a union that will represent their bargaining unit’s
interests in bargaining with employers over working conditions. A bargaining unit is a group of

102 29 U.S.C. §152(2).
103 ABA, “Jurisdiction: Coverage of the Act,” in The Developing Labor Law, vol. 2, p. 2253.
104 29 U.S.C. §152(3). The Re-empowerment of Skilled and Professional Employees and Construction Tradeworkers
(RESPECT) Act, S. 2168, was introduced in March, 2012. This amendment to the NLRB sought to narrow the
definition of “supervisor,” allowing employees who spend small amounts of time performing supervisory functions to
participate in union activities.
105 The NLRB reasons that the relationship between a university and a graduate student is primarily an educational one,
such that graduate students who are also teaching assistants are not covered by the NLRA. Brown University and
International Union, 432 NLRB, pp. 488-489 (2004).
106 29 U.S.C. §152(11).
107 ABA, “Jurisdiction: Coverage of the Act,” in The Developing Labor Law, vol. 2, pp. 2271-2272.
108 General Dynamics Corp., Convair Aerospace Division and National Engineers and Professionals Association, 213
NLRB 857 (1974).
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employees who are or wish to be represented by a union. A union can be recognized as a
representative through a union security agreement, a secret ballot election, or voluntary employer
recognition.
Bargaining topics are divided into those that unions and employers must bargain over (mandatory
subjects), those that parties may bargain over (permissive subjects), and those that parties are
prohibited from bargaining over (illegal subjects).
Certain conduct is prohibited in the employer-union relationship during union organization and
collective bargaining. Employers and unions cannot interfere with employees’ right to organize
and select a union. Employers and unions are required to bargain with each other in good faith
over conditions of employment, and employers can only bargain with the employee-selected
union. In limited circumstances, the parties can use some forms of self-help if they have reached
an impasse in the bargaining process.
Union Selection
Employees have the right to choose their union representative.109 A majority vote by the members
of an appropriate bargaining unit determines the union.110 A union must either be certified by the
NLRB or voluntarily recognized by the employer before collective bargaining can begin.111
Union Security Agreements
Unions and employers are generally allowed to enter into union security agreements under which
employees may be required, as a condition of employment, to become union members by paying
dues and initiation fees. A job applicant cannot be required to be a union member for hiring
consideration, but a newly hired employee can be required to become a dues-paying member on
or 30 days after the start of employment. This type of union-security agreement is known as a
union shop agreement. Agency shops may also be created. In an agency shop, employees who do
not join the union pay a fee to the union for its services as a bargaining agent, in lieu of dues.112
The union’s authority to enter into security agreements can be revoked if a majority of affected
employees vote to do so. Only one deauthorization election per twelve-month period can be held.
Petitions for deauthorization elections must be supported by at least 30% of employees in the
affected bargaining unit. Any employees, including those not required to join the union by the
terms of the collective bargaining agreement, but excluding supervisors, may petition for a
deauthorization election.113
Most provisions of the NLRA preempt state law, however, the NLRA specifically allows states to
enact “right-to-work” laws.114 Right-to-work laws prohibit or restrict union security agreements

109 29 U.S.C. §157.
110 29 U.S.C. §159(a).
111 CRS Report RL32930, Labor Union Certification Procedures: Use of Secret Ballots and Card Checks, by Gerald
Mayer.
112 29 U.S.C. §158(a)(3).
113 29 U.S.C. §158(e).
114 29 U.S.C. §164(b). For additional information on right-to-work laws, see CRS Report R42575, Right to Work Laws:
Legislative Background and Empirical Research, by Benjamin Collins.
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and give employees the option of employment without requiring them to join a union or to pay
union dues.115
Determination of a Bargaining Unit
A bargaining unit is a group of employees represented or seeking representation by a union. If a
union and employer do not agree on an appropriate bargaining unit, the issue is settled by the
NLRB.
A bargaining unit is generally determined on the basis of a “community of interest” of the
employees involved and whether those employees can be reasonably grouped together. To
determine a “community of interest,” the NLRB will look to several factors including historical
or traditional units; employee wishes; and whether employees have the same or similar interests
with respect to pay rates, hours, and other working conditions. A bargaining unit may include the
employees of one employer location or multiple employer locations; it may also include
employees of multiple employers. A bargaining unit may include both professional and
nonprofessional employees, however, a majority of professional employees must vote to be
members of the unit.116
Eligibility to Vote in a Secret Ballot Election
Employees who work in the bargaining unit during the eligibility period set by the NLRB and
who are employed at the time of an election may vote in an election. Employees who are on a
leave of absence or furloughed are eligible to vote. Economic strikers117 who have been replaced
by permanent employees may be allowed to vote in elections held within 12 months after the
beginning of the strike; their permanent replacements can vote in the same election.118 Unfair
labor practice strikers are entitled to vote in elections but their temporary replacements are not.119
Certification
A union can be recognized as an employee representative in a number of ways, including through
a secret ballot election. To initiate a secret ballot election, an individual or union must file a

115 ABA, “Union Security,” in The Developing Labor Law, pp. 2149-2150. The construction industry standards for
union security agreements are covered by a separate section of the act, 29 U.S.C. §158(f), because of the irregular
nature of construction employment.
116 CRS Report RL32930, Labor Union Certification Procedures: Use of Secret Ballots and Card Checks, by Gerald
Mayer. NLRB, Basic Guide to the NLRA, pp. 12-13. The NLRB recently issued a new rule to expedite pre-election
proceedings. 29 C.F.R. §102.64. The new rule went into effect April 30, 2012. In May 2012, the NLRB announced it
would temporarily suspend this new rule in response to a U.S. District Court decision that found that, at the time the
final rule was issued, the NLRB did not have the required quorum to issue the rule. National Labor Relations Board,
“NLRB suspends implementation of representation case amendments based on court ruling,” press release, May 15,
2012, http://www.nlrb.gov/news/nlrb-suspends-implementation-representation-case-amendments-based-court-
ruling.Additionally, Members of both houses filed joint resolutions “disapproving” of the rule, stating that expedited
pre-election procedures would deprive workers of sufficient time to make important decisions about union
representation. Lawrence E. Dubé, “Legislators File Senate, House Resolutions,” Daily Labor Report, February 16,
2012, p. A-17.
117 An economic strike is one for the purpose of obtaining economic concessions, like higher wages.
118 NLRB, Basic Guide to the NLRA, p. 16.
119 ABA, “The Primary Strike,” in The Developing Labor Law, p. 1597.
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representation petition with the NLRB alleging that a “substantial number of employees” want
union representation or that a recognized union no longer represents a majority of employees in
the bargaining unit. An employer can also file a petition alleging that one or more organizations
claim recognition. Petitions filed by employees or unions must be accompanied by authorization
cards signed by at least 30% of employees.120
Consent Agreements
Before an election, the NLRB’s regional staff will try to secure one of three types of consent-
election agreement from the parties. Consent agreements are agreed upon by the parties and lay
out the terms of an election, including which choices are to be included on the ballot and the
method to determine voting eligibility.121 A regional director of the NLRB must approve any
consent-election agreement.122 The three types of consent-election agreements are:
• Pure consent agreement. The parties agree to have the regional director resolve
any disputes arising from the election, and the regional director’s rulings are
final.
• Stipulated election agreement. The regional director’s rulings are subject to
review by the adjudicatory arm of the NLRB.
• Full consent agreement. The parties agree that the regional director will resolve
both pre- and post-election disputes.123
Each type of agreement usually gives the NLRB regional director the authority to conduct the
election, but parties can agree to an election conducted by a third party, such as an arbitrator or a
mediation board.124
NLRB-Administered Elections
If parties do not enter into a consent-election agreement, a formal representation hearing is held.
The hearing provides a forum for the parties to present their arguments regarding the
representation election and may include the examination of witnesses and introduction of
evidence. After the hearing, the hearing officer gives a summary of the issues and evidence to the
regional director and the regional director makes a decision on the issues.125
After the hearing, the NLRB can direct a secret ballot election. The NLRB can certify a union
receiving the majority of votes cast in an election. If an election has more than one union on the
ballot and no choice receives a majority of the vote, the two choices with the most votes face each
other in a runoff election.126

120 29 U.S.C. §159.
121 NLRB, Basic Guide to the NLRA, p. 16.
122 See 29 C.F.R. §101.19. NLRB, Basic Guide to the NLRA, p. 16.
123 29 C.F.R. §101.19.
124 CRS Report RL32930, Labor Union Certification Procedures: Use of Secret Ballots and Card Checks, by Gerald
Mayer. NLRB, Basic Guide to the NLRA, p. 16.
125 29 C.F.R. §§102.66-102.67.
126 29 U.S.C. §159.
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Parties can file an objection to the election if they believe the NLRB’s election standards have not
been met. An election may be set aside if it was accompanied by interference with the employees’
freedom of choice. Examples of interference with employee freedom of choice include threats of
job or benefits loss, threats of violence, and incentives to influence an employee’s vote.127
If a union is NLRB-certified, the employer must bargain with it in good faith for one year.128
Voluntary Recognition
The NLRA does not preclude employers from voluntarily recognizing a union as an employee
representative. An employer may do this if a majority of employees in a bargaining unit have
signed authorization cards. A union and employer can also enter into a card check agreement,
under which an employer agrees to recognize a union before the union begins to collect
authorization cards. A card check agreement may require the union to collect more than a
majority of authorization cards from bargaining unit employees.129
If an employer voluntarily recognizes a union, employees can file a decertification petition or an
election petition requesting representation by another union after a reasonable amount of time. A
reasonable amount of time is defined by the NLRA as at least six months, but no more than one
year after the parties’ first bargaining session.130
The NLRB may also require an employer to recognize and bargain with a union if a majority of
employees signed authorization cards and the employer engaged in unfair labor practices that
make a fair election unlikely.131 The employer must bargain with the union, in good faith, for one
year.132
Decertification
The NLRB requires a secret ballot election to decertify either certified or voluntarily recognized
unions. A decertification petition may be filed by employees or a union acting on their behalf. The
petition must be signed by at least 30% of the employees in the bargaining unit represented by the
union. Parties cannot file a decertification or election petition for unions certified in an NLRB-
conducted election until one year after certification.133

127 NLRB, Basic Guide to the NLRA, pp. 16-17.
128 CRS Report RL32930, Labor Union Certification Procedures: Use of Secret Ballots and Card Checks, by Gerald
Mayer. NLRB, Basic Guide to the NLRA, p. 16.
129 CRS Report RL32930, Labor Union Certification Procedures: Use of Secret Ballots and Card Checks, by Gerald
Mayer.
130 The “reasonable amount of time” rule was the long-held NLRB rule until 2007 when the NLRB decided that
employees could file a petition within 45 days of recognition. In August, 2011, the NLRB revised its position, stating
that it was wholly unsupported by any empirical evidence. The NLRB will look to several factors in determining a
reasonable amount of time, including progress made in the negotiation process, whether the parties are negotiating an
initial contract, and whether the parties are at an impasse. Lamons Gasket Company and United Steel, Paper and
Forestry, Rubber, Manufacturing, and Energy, Allied Industrial and Service Workers International Union, 357 NLRB
No. 72, p. 10 (2011), http://nlrb.gov/case/16-RD-001597.
131 CRS Report RL32930, Labor Union Certification Procedures: Use of Secret Ballots and Card Checks, by Gerald
Mayer.
132 Ibid. NLRB, Basic Guide to the NLRA, p. 37.
133 CRS Report RL32930, Labor Union Certification Procedures: Use of Secret Ballots and Card Checks, by Gerald
(continued...)
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Withdrawal of Recognition
Union recognition can be withdrawn under two circumstances. It can be withdrawn if
1. one year after certification the employer and union have not reached a contract
agreement. Both parties must have bargained in good faith, and the employer
must doubt that a majority of employees currently support the certified union.
The employer’s doubt must be based on objective information (e.g., a petition
signed by a majority of employees), or
2. no contract agreement has been reached after a reasonable amount of time and
the employer has a reasonable doubt, supported by objective information, that the
union is no longer supported by a majority of unit employees.134
Bargaining Subjects
The NLRA mandates that employers must bargain with unions regarding “rates of pay, wages,
hours of employment, and other conditions of employment.”135 Because the statute does not
provide further explanation, the NLRB and courts have divided bargaining subjects into three
distinct categories: mandatory, permissive, and illegal.
Mandatory Subjects
Mandatory bargaining subjects are those that “vitally affect” employees. Employers must bargain
with unions over such subjects, are prohibited from taking unilateral action related to them, and
cannot make agreements with individual union members about them.136
The NLRA defines the following terms: “wage,” “hours of employment,” and “other conditions
of employment.” The term “wage” includes
• overtime pay,
• shift differentials,
• paid holidays and vacations,
• commissions,
• severance pay,
• pensions,
• health insurance, and
• profit-sharing plans.

(...continued)
Mayer. NLRB, Basic Guide to the NLRA, p. 14.
134 CRS Report RL32930, Labor Union Certification Procedures: Use of Secret Ballots and Card Checks, by Gerald
Mayer.
135 29 U.S.C. §159(a).
136 ABA, “Subjects of Bargaining,” in The Developing Labor Law, vol. 1, pp. 1247, 1263.
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The term “hours of employment” includes work schedules. The term “other conditions of
employment” include provisions for grievance procedures, workloads, and sick leave.137
Permissive Subjects
Permissive bargaining subjects are those that either party may propose for inclusion in collective
bargaining but neither party is required to bargain over them. When a permissive subject is
included in a collective bargaining agreement, that subject does not then become a mandatory
subject. Permissive subjects include the definition of a bargaining unit, selection of bargaining
representatives, and union-recognition clauses.138
Illegal Subjects
The NLRA specifically prohibits either party from requiring the other party to contract for
provisions that are illegal or that go against Congress’s intent in enacting the NLRA. Closed-shop
and hot-cargo clauses are examples of such provisions.139 Additional illegal subjects of bargaining
include separation of employees by race, rules requiring preference for union members, and an
employer’s right to terminate and employee for union activity.140
Prohibited Conduct
The NLRA defines and prohibits certain conduct as unfair labor practices (ULPs) to protect the
rights of both employees and employers.141 Through its provisions, the NLRA attempts to prevent
and remedy, but not punish, ULPs. The NLRB can issue cease-and-desist orders to stop ULPs,
and it can require employers to reinstate and give back pay to employees who were improperly
discharged for union activities.142 A union may be required to give an employee back pay if it is
responsible for a ULP that caused an employer to discharge a worker. Punitive damages, however,
are generally unavailable.143
During Union Organization Efforts
The NLRA imposes restrictions on employers and unions during the process of union
organization. The act prohibits employers and unions from interfering with or coercing employees
exercising their right to organize.144 The NLRB does not require a showing of intent to violate the

137 Ibid., pp. 1264-1299.
138 Ibid., pp. 1362-1386.
139 The Taft-Hartley Act prohibited closed shops. Hot-cargo clauses are those in which the employer agrees to stop
handling, using, or selling products of another employer. 29 U.S.C. §158(e).
140 ABA, “Subjects of Bargaining,” in The Developing Labor Law, vol. 1, pp. 1393-1397.
141 29 U.S.C. §158. 29 U.S.C. §160(c).
142 29 U.S.C. §160(c). NLRB, Basic Guide to the NLRA, p. 35, 38.
143 29 U.S.C. §160(c). NLRB, Basic Guide to the NLRA, p. 38. The amount of back pay awarded is the amount of
compensation (i.e., wages plus benefits) that a worker would have received if he or she had not been unlawfully fired,
less the amount of compensation received (less the expenses from looking for work) from other work during the back
pay period, plus interest accrued. National Labor Relations Board, NLRB Casehandling Manual, Part 3, Compliance
Proceedings, §10536, http://www.nlrb.gov/sites/default/files/documents/44/compliancemanual.pdf.
144 29 U.S.C. §§158(a)(1), (b)(1)(A).
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act, rather, an employer’s or union’s conduct must tend to interfere with employees’ right to
organize.145
During union organization, neither an employer nor a union can threaten discharge, loss of
benefits, or plant closure if employees exercise their right to organize. An employer cannot raise
wages to discourage workers from unionizing or discriminate against employees regarding
conditions of employment (e.g., give unfavorable work assignments), and a union cannot cause
an employer to discriminate against employees regarding employment conditions.146
Employers are prohibited from dominating a union. An employer dominates a union when it has
participated in the union’s organization and assisted and supported its activities to such an extent
that the union appears to be the employer’s creation and not the employees’ bargaining
representative. Additionally, employers cannot interfere with or contribute money or other
support to a union, such as supporting one union over another in an election or pressuring
employees to financially support a union, absent a valid union security agreement.147
Unions are prohibited from interfering with employers’ choice of selecting who will or will not
represent them in the collective bargaining process.148 A union cannot influence an employee’s
choice of representative in procedures to address individual employee complaints.149
During an Ongoing Employer-Union Relationship
Both employers and unions are required to bargain collectively and in good faith with one another
over “wages, hours of employment, and other terms and conditions of employment.”150 “Good
faith” has not been specifically defined, but factors surrounding the bargaining process are used
to determine whether parties bargained in good faith, including the justification for proposals and
a willingness to make concessions. Some actions, such as unilateral changes and bargaining
directly with employees, are considered by the NLRB to be in and of themselves refusals to
bargain and in violation of the requirement to bargain in good faith.151
Neither employers nor unions can “restrain or coerce employees” in exercising their right to
bargain collectively.152 Employers cannot discriminate against employees to encourage or
discourage union membership or because they have filed charges or given testimony under the
NLRA.153 A union cannot cause an employer to discriminate against employees to encourage or
discourage union membership.154

145 ABA, “Interference with Protected Rights,” in The Developing Labor Law, vol. 1, p. 93.
146 CRS Report RL32930, Labor Union Certification Procedures: Use of Secret Ballots and Card Checks, by Gerald
Mayer.
147 29 U.S.C. §158(a)(2). NLRB, Basic Guide to the NLRA, p. 18.
148 29 U.S.C. §158(b)(1)(B).
149 29 U.S.C. §158(b)(1)(A).
150 29 U.S.C. §§158(a)(5), (b)(3), (d).
151 ABA, “The Duty to Bargain,” in The Developing Labor Law, vol. 1, pp. 827-846.
152 29 U.S.C. §§158(a)(1), (b)(1)(A).
153 29 U.S.C. §§158(a)(3), (a)(4).
154 29 U.S.C. §158(b)(2).
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Unions can fine and discipline members, so long as those sanctions are consistent with NLRB
policy. For instance, a union cannot fine, expel, or use violence against a member for filing a ULP
charge, for testifying against other members in arbitration, or for refusing to participate in
unlawful or unprotected activity. A union can, however, fine or suspend a member for violating
internal union rules.155
During Self-Help
In certain situations, the NLRA protects employees when they exercise self-help. When self-help
is protected, employers violate the act by taking adverse or discriminatory action against
employees who are using self-help. Protected activities are those used by employees, in a
peaceful manner, to exercise their rights under the act, such as certain economic strikes, sympathy
strikes, filing grievances, and activity opposing union leadership.156 Unprotected activities include
those that are violent or unlawful. Unprotected employee activities include sit-down strikes,
intermittent strikes, partial strikes, strikes in violation of a contract’s no-strike clause, acts of
disloyalty,157 and disruptive or vulgar behavior.158
During a strike, employee rights differ depending on the reason for the strike. If the strike is
economic, employees retain their employment status and cannot be discharged, but employers can
replace them. After the strike, if the employer has hired replacements, the striking employees are
not entitled to job reinstatement. However, if the striking employees cannot find regular and
substantially equivalent work, they are entitled to be recalled by the employer to jobs for which
they are qualified, when jobs become available.159
During a strike protesting an employer’s unfair labor practices, employees can neither lose their
job nor be permanently replaced. After the strike, absent serious misconduct160 on their part,
striking employees are entitled to return to their jobs.161
Employers can also engage in certain self-help activities. An employer can prevent employees
from working (i.e., a lockout) but not over a dispute about non-mandatory bargaining subjects.
During a strike, an employer can unilaterally establish employment terms and conditions for
workers hired as striker replacements, but without a bargaining impasse, an employer may not
alter employment terms and conditions of non-striking employees.162

155 ABA, “Interference with Protected Rights,” in The Developing Labor Law, vol. 1, pp. 256-276.
156 To be a “protected” activity, conduct must be for collective bargaining or for “mutual aid or protection” and
concerted in nature. 29 U.S.C. §157.
157 Acts of disloyalty include breach of confidentiality and false allegations about the employer.
158 ABA, “Interference with Protected Rights,” in The Developing Labor Law, vol. 1, pp. 196-254.
159 NLRB, Basic Guide to the NLRA, p. 10.
160 Serious misconduct includes violence and threats of violence and physically blocking individual from entering or
leaving the workspace. Ibid., p. 11.
161 Ibid., p. 10.
162 ABA, “Interference with Protected Rights,” in The Developing Labor Law, vol. 1, pp. 984-988.
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NLRA Enforcement and Adjudication Processes
The NLRA established the National Labor Relations Board (NLRB) to administer and enforce the
act. The NLRB has the power to investigate and adjudicate representation disputes, ULP
complaints, and contract disputes. NLRB decisions can be reviewed by federal courts in limited
circumstances (see discussion below).
National Labor Relations Board
The NLRB is an independent federal agency charged with administering and enforcing the
NLRA. It comprises a five-member Board and a General Counsel. Hereafter, the “NLRB” is used
to refer to both the five-member Board and the General Counsel as a collective body. “The
Board” refers to the five-member Board alone.
The Board and General Counsel are appointed by the President and confirmed by the Senate.
Traditionally, the Board is comprised of two Democrats, two Republicans, and a fifth member
who belongs to the same party as the President. If a position is vacant and the Senate is in recess,
the President can make a “recess appointment.” The appointment expires at the end of the next
Senate session.163
The Board adjudicates objections and challenges to secret ballot elections, decides questions
about the composition of bargaining units, and determines all ULP cases prosecuted by the
General Counsel.164 The General Counsel has authority over ULP investigations and the issuance
of ULP complaints; it has delegated its authority to issue ULP complaints to 51 field offices,
which are composed of approximately 1,680 full-time employees.165
Judicial Review
Only final orders issued by the Board in ULP cases are subject to judicial review by the courts.166
Board orders do not have the force of law, and parties can only be compelled to comply with
NLRB orders through the U.S. courts of appeals.167
Generally, U.S. district courts cannot review Board decisions on ULP or representation cases.
District courts can review representation decisions in connection with the review of an order in a

163 In January, 2012, President Barack Obama made three recess appointments to the NLRB during a three-day intra-
session recess. Past Department of Justice (DOJ) briefs implied that the President may make a recess appointment
during a recess lasting longer than three days. These appointments were considered by some to be controversial,
because Congress had apparently scheduled its recesses to prevent recess appointments, but DOJ indicated that “the
Administration does not regard congressional scheduling practices ... as an impediment to the exercise of the recess
appointment power.” CRS Report R42329, Recess Appointments Made by President Barack Obama, by Henry B.
Hogue and Maureen Bearden. CRS Report RS21308, Recess Appointments: Frequently Asked Questions, by Henry B.
Hogue.
164 The Board has complete authority over all representation matters but has delegated much of this power to its
regional directors. It still retains the power to review any regional director’s decision. NLRB, Basic Guide to the NLRA,
p. 7, 33. Feldacker, Labor Guide to Labor Law, pp. 39-44.
165 NLRB, Basic Guide the NLRA, p. 33. Lawrence E. Dubé, “Obama Seeks 5 Percent NLRB Budget Rise,” Daily
Labor Report, February 13, 2012, p. C-2.
166 29 U.S.C. §160(f).
167 The Board, not the parties, files a petition to enforce its order. 29 U.S.C. §160(e).
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ULP case. District courts can review representation cases if the Board made an order in excess of
its jurisdiction or contrary to a specific provision in the NLRA.168 The Board and federal courts
are not allowed to review General Counsel decisions not to issue a ULP complaint, unless they
are in connection with a review of a Board final order.169 If, after an investigation, the regional
director has “reasonable cause to believe” that the ULP charge is true and that a complaint should
be issued, the regional director must petition the district court for appropriate relief.170
Dispute Resolution
Unfair Labor Practice Disputes
An employee, employer, union, or any other person can initiate a ULP investigation against an
employer or a union by filing a charge with the NLRB no more than six months after the alleged
incident.171 The charge is then investigated by the regional director, and the regional director
determines whether a formal complaint should be issued. A refusal to issue a complaint can be
appealed to the General Counsel. However, parties do not have a right to Board or court review.172
If the General Counsel determines that a charge has merit, he may try to settle the matter either
formally or informally. In an informal settlement, parties generally agree to withdraw the charge
upon remedial action and notice of the proposed settlement terms to affected employees. If the
charged party does not comply with the agreement terms, the settlement will be withdrawn, and
the case will be prosecuted. The settlement is not subject to judicial review.173
Formal settlements are used in cases where the General Counsel finds a persistent or deliberate
violation of the NLRA. In a formal settlement, the charged party agrees to the Board’s issuing a
formal remedial order. If the charged party violates the settlement, the NLRB may institute
judicial proceedings, or the party may be held in contempt.174
When a settlement is not reached in a meritorious case, the regional office will issue a complaint.
Hearings are then held before an administrative law judge (ALJ), who issues a decision and
recommendations to the Board. If a party does not object to the ALJ’s decision, the Board can
adopt the ALJ’s decision as its own. Otherwise, the Board can review the ALJ’s decision and
issue its own orders. The General Counsel is responsible for ensuring compliance with the
Board’s orders.175

168 For instance, a court set aside NLRB certification when it found that the NLRB had exceeded its statutory authority
by certifying a union that included both professional and nonprofessional employees without giving the professional
employees a separate election to determine whether they wished to be included in the unit. Leedom v. Kyne, 258 U.S.
184 (1958).
169 ABA, “Judicial Review and Enforcement,” in The Developing Labor Law, pp. 2803-2805.
170 29 U.S.C. §160(l).
171 29 U.S.C. §160(b).
172 NLRB, A Basic Guide the NLRA, p. 36.
173 ABA, “The NLRB Procedures,” in The Developing Labor Law, vol. 2, pp. 2683-2688.
174 Ibid., p. 2691.
175 ABA, “NLRB Procedures,” in The Developing Labor Law, vol. 2, pp. 2692-2701.
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Contract Disputes
Arbitration is the primary mechanism for resolving contract disputes. In arbitration, the union and
employer present their positions to an arbitrator who resolves the dispute. When arbitration is not
possible, a party can bring a suit for contract violations in either state or federal court. However,
if state law regarding contract interpretation or substance contradicts federal law, federal law
prevails.176 The Board also has the authority to interpret collective bargaining contracts, but courts
generally do not defer to the Board in contract interpretation.177 Both courts and the Board can
issue injunctions to prevent certain actions, such as strikes that are in breach of a no-strike
contract clause that requires arbitration.178
Emergency Actions
When the President believes that a threatened or actual strike or lockout that affects an entire
industry or a substantial part of it will endanger national health or safety, he or she may appoint a
“board of inquiry” to investigate the issue. A board of inquiry can include a chairman and any
other members the President chooses. The board then issues a report on the facts of the dispute to
the President. However, the report cannot include recommendations.179
After a report is issued, the President may direct the Attorney General to petition a U.S. district
court to order a party to end the strike or lockout. If the court finds that the activity does indeed
affect at least a substantial portion of an industry and threatens national health or safety, it will
order a party to end the strike or lockout. A district court’s orders may be appealed to a federal
court of appeals.180
While the injunction is in effect, the parties to the dispute are encouraged to settle the matter on
their own, and the board of inquiry reconvenes. After 60 days, the board reports to the President
the current state of relations between the parties. Within 15 days of the issuance of the report, the
NLRB must then conduct a secret ballot election of the employees involved in the dispute on
whether they wish to accept a final offer of settlement made by their employer.181
After either the certification of the secret ballot election or a settlement, the injunction is
discharged. The President submits a report detailing the process and any other recommendations
of appropriate action to Congress.182

176 29 U.S.C. §185(a). ABA, “Board Action and Contract Enforcement,” in The Developing Labor Law, vol. 1, pp.
1424-1427.
177 The Taft-Hartley Act gave courts jurisdiction over contract disputes as a way to make collective bargaining
agreements more readily enforceable. ABA, “Board Action and Contract Enforcement,” in The Developing Labor Law,
vol. 1, pp. 1408, 1476-1480.
178 ABA, “Board Action and Contract Enforcement,” in The Developing Labor Law, vol. 1, pp. 1435-1448.
179 29 U.S.C. §§176-177.
180 29 U.S.C. §178.
181 29 U.S.C. §179.
182 29 U.S.C. §180.
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The Federal Service Labor-Management
Relations Statute
Background
While many private sector employees gained statutory rights to collective bargaining and
remedies to unfair labor practices throughout the 1920s and 1930s, many of their public
counterparts remained unprotected until the 1960s.183 Traditional concepts of government
sovereignty and public employees’ general satisfaction with their job security contributed to this
disparity.184 However, by the 1960s, many federal public employees found their jobs to be less
secure due to organizational and technological changes. Moreover, many commentators thought
the federal government’s willingness to extend collective bargaining rights to private employees
but not to its own employees was inconsistent.185
Executive Order 10988
Union recognition bills were introduced in each Congress throughout the 1950s, but both
President Harry Truman and President Dwight Eisenhower strongly opposed them. In 1961,
President John F. Kennedy formed the Task Force on Employee-Management Relations in the
Federal Service, which evaluated and made recommendations about federal employee
unionization. In 1962, President Kennedy implemented the Task Force recommendations through
Executive Order 10988.186 The order granted federal employees the right to join, or not to join,
labor unions and to collectively bargain. These new rights, however, were not as extensive as
those of private employees. For instance, federal employees could not negotiate over wages and
were prohibited from striking. Additionally, an agency could require that employees negotiate
over a collective bargaining agreement only during non-official time (i.e., at times when
employees were not on duty and entitled to compensation).187
Executive Order 11491
In 1969, President Richard Nixon issued Executive Order 11491, which further developed the
framework of federal labor-management relations. It provided that majority exclusive recognition

183 By 1960, approximately 30% of nonagricultural private sector employees were represented by unions. Charles M.
Rehmus, “Labor Relations in the Public Sector in the United States,” International Labour Review, vol. 109, no. 3
(1974), p. 200. Although an estimated 30% of federal employees were represented by unions in 1961, most of those
were U.S. Postal Service employees. The Government Printing Office and the Tennessee Valley Authority also held
some collective bargaining rights, but most employees from other agencies did not. Approximately 16% of non-postal
service federal employees were union members. See Kenneth Bullock, “Official Time as a Form of Union Security in
Federal Sector Labor-Management Issues,” The Air Force Law Review, vol. 59 (2007), pp. 164-167.
184 Charles M. Rehmus, “Labor Relations in the Public Sector in the United States,” International Labour Review, vol.
109, no. 3 (1974), pp. 201-202.
185 Ibid., p. 202.
186 Kenneth Bullock, “Official Time as a Form of Union Security in Federal Sector Labor-Management Issues,” The
Air Force Law Review, vol. 59 (2007), pp. 169-173.
187 Executive Order 10988, “Employee-Management Cooperation in the Federal Service,” 27 Federal Register 551,
January 17, 1962.
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would be the only form of union recognition,188 established the Federal Labor Relations Council
(the predecessor to the current Federal Labor Relations Authority, FLRA) and the Federal Service
Impasses Panel (FSIP), and listed prohibited unfair labor practices for both unions and
management. It also allowed employees to use limited “official time” to negotiate a collective
bargaining agreement.189
The Federal Service Labor-Management Relations Statute
Although federal employees were given collective bargaining rights under the executive orders
(EOs) issued by Presidents Kennedy and Nixon, those rights were not necessarily secure, as EOs
are subject to unilateral change or termination by the President. In 1978, however, Congress
codified and adopted many of the EOs’ provisions as Title VII of the Civil Service Reform Act of
1978, commonly referred to as the Federal Service Labor-Management Relations Statute
(FSLMRS). While the statute followed the general principles of the EOs, it also made several
changes, such as establishing the Federal Labor Relations Authority (FLRA), limiting the statute’s
coverage, and allowing employees official time to negotiate collective bargaining agreements.190
Recent Developments
In 2009, President Barack Obama issued Executive Order 13522, which created the National
Council on Federal Labor-Management Relations (the Council). In this EO, the Council was
charged with creating pilot labor-management forums within the federal government to allow
agency managers and unions to discuss labor-management issues in a nonadversarial setting. The
pilot project is in its third year and continues to implement new initiatives and advise the
President on how to improve labor-management relations in the federal government.191
Other Federal Workforce Labor-Relations Statutes and Policies
Although several agencies were explicitly excluded from FSLMRS coverage (see “Employer
Defined” below), some of them are covered by separate labor-relations statutes or policies.
The Government Accountability Office (GAO) is excluded from FSLMRS coverage, but the
General Accounting Office Personnel Act of 1980 gave GAO employees the right to organize and
bargain collectively.192

188 Under majority exclusive recognition, once a union is recognized as the exclusive unit representative, an agency can
collectively bargain with only that union.
189 Executive Order 11491, “Labor-management relations in the Federal Service,” 34 Federal Register 17,605, October
29, 1969.
190 5 U.S.C. §7131 (a). CRS Report R41732, Collective Bargaining and Employees in the Public Sector, by Jon O.
Shimabukuro.
191 Louis C. LaBrecque, “Obama Order Creates Federal Labor Council; No Mandate to Bargain on Permissive Topics,”
Daily Labor Report, December 12, 2009, p. A-14. For additional information on the National Council on Federal
Labor-Management Relations, see its website, http://www.lmrcouncil.gov/index.aspx.
192 P.L. 96-191. In 2007, analysts at GAO voted to be represented by the International Federation of Professional and
Technical Engineers (IFPTE). In February 2012, support employees at GAO also voted to be represented by IFPTE.
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Neither the FSLMRS nor the Tennessee Valley Authority (TVA) Act of 1933 granted TVA
employees collective bargaining rights. However, in 1935, TVA adopted a policy that allows
employees to organize and bargain over wages.193
Without actually changing the language of the National Labor Relations Act (NLRA), Congress
incorporated most NLRA provisions into the Postal Reorganization Act of 1970. This action gave
enforceable collective bargaining rights to U.S. postal workers.194
Overview
The FSLMRS seeks to prevent labor-management disputes that could burden or obstruct federal
government operations. It grants certain rights to both workers and employers, seeks to prevent
practices that could frustrate a peaceful worker-employer relationship, and provides mechanisms
for workers and employers to resolve disputes.
To achieve these goals, the FSLMR regulates the labor-management relationship between
workers and employers in most federal agencies. It provides parties with a standard process for
choosing a union to act as an employee representative in the collective bargaining process and
details which individuals can participate in the process. Once a union is selected, the FSLMR
governs which subjects workers and unions can negotiate. The FSMLRS also regulates how
workers, employers, and unions should behave towards each other during the union selection and
collective bargaining processes and prohibits certain unfair actions.
To administer and enforce the statute, the FSLMRS established the Federal Labor Relations
Authority (FLRA) as the primary agency to administer and enforce the statute. The FLRA has the
authority to investigate and adjudicate representation disputes, ULP complaints, and contract
disputes. The Federal Mediation and Conciliation Service (FMCS) is an independent agency that
provides voluntary mediation services to parties who cannot resolve a bargaining dispute. The
Federal Service Impasses Panel (FSIP) is an entity within the FLRA that provides additional
assistance in resolving disputes if FMCS services cannot resolve the dispute or if the parties
specifically request FSIP’s services.
Scope of Coverage
The FSLMRS regulates collective bargaining rights and duties for most federal agencies,
employees, and unions. The preliminary sections of the FSLMRS define “employer,”
“employee,” and “labor organization,” and those definitions determine who is covered by the
statute’s regulations.
State and local laws govern state and local public employees.

193 U.S. General Accounting Office, Labor-Management Relations: Tennessee Valley Authority Situation Needs to
Improve, GAO/GGD-91-129, September 1991, http://archive.gao.gov/d18t9/145065.pdf.
194 39 U.S.C. §1201 et seq.
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Employer Defined
The FSLMRS applies to most federal executive agencies, along with the Library of Congress, the
Government Printing Office, and the Smithsonian Institution. Several agencies are specifically
excluded from the statute’s coverage. Those excluded agencies are the Government
Accountability Office, the Federal Bureau of Investigation, the Central Intelligence Agency, the
National Security Agency, the Tennessee Valley Authority, the Federal Labor Relations Authority,
the Federal Impasses Panel, and the U.S. Secret Service.195
The President has the power to unilaterally exclude an agency or subdivision from coverage
under the FSLMRS if he determines the entity’s “primary function” is “intelligence,
counterintelligence, investigative, or national security work” and that the provisions of the statute
cannot be applied “in a manner consistent with national security requirements and
considerations.”196 With this power, the President has excluded additional agencies and agency
subdivisions, including the National Nuclear Security Administration, the Federal Air Marshall
Service, and several subdivisions of each branch of the military.197
Employee Defined
An employee includes any individual employed in an agency or an individual who is no longer
employed at an agency because of unfair labor practices and who has not obtained regular and
substantially similar employment elsewhere. The definition specifically excludes some
individuals from the definition of employee, including noncitizens, members of the uniformed
services, supervisors, management officials, officers or employees in the Foreign Service, and
individuals who participate in a strike in violation of the statute.198
Labor Organization Defined
A labor organization is defined as an organization composed, at least in part, of employees who
participate in and pay dues to that organization. The organization must have the purpose of
dealing with an agency regarding conditions of employment and grievances. Organizations that
deny membership on the basis of sex, color, race, creed, national origin, and other similar
characteristics; advocate the overthrow of the U.S. government; are sponsored by an agency; or
participate or assist in a strike are not labor organizations recognized under the statute.199

195 5 U.S.C. §7103(a)(3).
196 5 U.S.C. §7103(b)(1)(B).
197 Executive Order 12171, “Exclusions from the Federal Labor-Management Relations Program,” 3 C.F.R. §§1979
Comp., p. 458. Executive Order 13480, “Exclusions from the Federal Labor-Management Relations Program,” 73
C.F.R. §234.
198 5 U.S.C. §1703(a)(2)(B). Although members of the uniformed services are broadly excluded from the statute’s
coverage, some members of the National Guard are protected under the statute. See, e.g., Spence v. Holesinger, 696 F.
Supp. 398 (C.D. Ill. 1988).
199 5 U.S.C. §7103(a)(4).
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Rights and Duties under the Law
The statute both mandates and prohibits certain actions of all parties involved in a labor-
management dispute. The statute grants employees the right to organize and collectively bargain
and sets forth the procedures and standards to be applied in the selection of a union as an
employee representative and the subsequent relations between the union and the employer.
Unions and agencies can bargain over working conditions but cannot bargain over those topics
already governed by another law (i.e., rates of pay as determined by the General Schedule).
Working conditions might include work hours and allocation of employee offices. Employees
must share a “community of interest” to be recognized as an appropriate unit for union
representation. The union selection process is more limited in the federal sector than in the private
sector, as a union can only be certified as an employee representative through a secret ballot
election and union-security agreements are illegal.
Certain conduct is prohibited in the employer-union relationship during union organization and
collective bargaining. Employers and unions cannot interfere with employees’ right to organize
and select a union. Employers and unions are required to bargain with each other in good faith,
and employers can only bargain with an employee-selected union. If a bargaining impasse is
reached, federal employees are prohibited from participating in strikes, work stoppages,
slowdowns, or picketing that interferes with agency operations.
Bargaining Subjects
The FSLMRS gives federal employees the right to collectively bargain over conditions of
employment.200 Conditions of employment include “personnel policies, practices, and matters ...
affecting work conditions.” An employee’s right to participate in political activities, the
classification of positions, and any matters covered by other federal statutes (e.g., wages)201 are
specifically excluded from this definition.202
Employees and their unions are also not allowed to bargain over the statutory rights of
management that are set forth in the statute. These nonnegotiable managerial rights include the
authority to determine the organization’s mission or budget and the authority to hire, discharge, or
assign work to an employee.203 The parties may, however, bargain over grievance procedures for
adversely affected employees, the way in which management will exercise its authority, and, at
the agency’s election, the number of employees or positions assigned to a work project,204

200 5 U.S.C. §7101.
201 5 U.S.C. §5332. Employees at agencies excluded from the statute’s coverage may be able to bargain over wages,
depending on the statute that covers collective bargaining in their agency. See “Other Federal Workforce Labor-
Relations Statutes and Policies,” supra.
202 5 U.S.C. §7103(a)(14).
203 5 U.S.C. §7106(a).
204 5 U.S.C. §7106(b).
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Union Selection
Federal employees have the right to select their union, and agencies must give exclusive
recognition to the union selected by employees.205
Union Security Agreements
Union security agreements are prohibited under the FSLMRS. Unions representing federal
employees must represent all unit employees, regardless of whether they pay dues.206
Determination of a Bargaining Unit
Unions can represent those employees who are grouped together in an appropriate unit. To find a
unit “appropriate” for representation, the FSLMRS requires that three criteria be met.
1. The unit must encompass employees who share a clear “community of interest,”
identifiable employment concerns distinct from those of other groups of
employees.207
2. The unit must promote an effective relationship with the agency.
3. The unit must promote efficient operations of the agency.208
Management officials and supervisors cannot be included in a bargaining unit unless they have
historically been included in the unit.209 Additional employees prohibited from a unit include
employees who administer FSLMRS provisions and employees whose work affects national
security.210
Eligibility to Vote
The Federal Labor Relations Authority (FLRA) determines which employees are eligible to vote
in secret ballot elections.211 Regularly scheduled intermittent employees who work in positions
that exist year round or who have a reasonable expectation of continued employment can vote in
elections.212 Temporary employees can also vote, if they have a reasonable expectation of

205 5 U.S.C. §7111.
206 5 U.S.C. §7114(a)(1).
207 5 U.S.C. §7112(a).
208 Federal Labor Relations Authority, A Guide to the Federal Service Labor-Management Relations Program (2001),
p. 6 (Hereafter cited as FLRA, A Guide to the FLMRP).
209 A management official is an individual who has the duty or authority to determine or influence agency policy. 5
U.S.C. §7103(a)(11). A supervisor is an individual who has the authority to use independent judgment to take
personnel actions, such as hiring, firing, or disciplining employees. 5 U.S.C. §7103(a)(10).
210 FLRA, A Guide to the FLMRP, pp. 6-7.
211 5 U.S.C. §7111(d).
212 See Army & Air Force Exchange Service, Panama Area Exchange and ALF-CIO Local 907, 7 F.L.R.A. 514 (1981).
For Buchanan Installation Club Management System and Congreso de Uniones Industriales de Puerto Rico, 9
F.L.R.A. 143 (1982).
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continued employment beyond their initial six months of work and share a community of interest
with the permanent employees included in the bargaining unit.213
Certification
Under the FSLMRS, a union can only be certified as an employee representative through a secret
ballot election. To initiate a secret ballot election, an individual, a union, or an agency must first
file a representation petition and a “showing of interest” that either 30% of unit employees wish
to be represented by a union or that 30% of unit employees allege that the union no longer
represents a majority of the unit employees.214
The regional director of the FLRA’s General Counsel (see discussion of “FLRA Enforcement and
Adjudication Processes” below) will determine whether the showing of interest is sufficient and
meet with parties to resolve any preliminary disputes. It then conducts an investigation into any
allegations made, including identifying related cases, identifying other parties who may be
affected, and making any other necessary determinations.215
After an investigation and any hearings, the regional director can order a secret ballot election. If
an election is ordered, parties are encouraged to enter into consent-election agreements that
include the choices to be on the ballot and the method of election. However, if parties cannot
agree to these terms, the regional director will issue a “direction of election.” A direction of
election sets out the election procedures. Parties have the opportunity to bring any nonprocedural
issues before the regional director in a hearing.216
Once an election is held, a union will be certified as an employee representative if it receives the
majority of votes cast. If an election has more than one union on the ballot and no choice receives
a majority of the votes, the two choices with the most votes face each other in a runoff election.217
A party can file an objection to procedural aspects of an election or conduct that may have
adversely impacted the election within five days of the vote tally.218 While the results of an
election are pending, parties must maintain the terms of any existing collective bargaining
agreement.219

213 See Small Business Administration and AFGE, 16 F.L.R.A. 180 (1984).
214 5 U.S.C. §7111 (b). The FLRA can dismiss applications for investigation under one of several election bar
doctrines. Under these doctrines, the FLRA, generally, will dismiss an application for a specific amount of time after an
election has been held or a previous application has been filed between the same bargaining unit and agency as in the
current election or application before it. 5 C.F.R. §2422.12. Federal Labor Relations Authority Office of the General
Counsel, Representation Case Law Guide (2000), pp. 128-129, http://www.flra.gov/webfm_send/27.
215 If a party disputes the status of an organization as a “labor organization” under the statute, it can do so for one of
two reasons. A party can either assert that the union does not fall within the definition of “labor organization” under the
statute or that a union should not be given exclusive representative status when it is subject to corrupting influences.
Federal Labor Relations Authority Office of General Counsel, Representation Proceeding: Case Handling Manual
(2000), pp. 99-100, 263, 275-276, http://www.flra.gov/webfm_send/33.
216 5 C.F.R. §2422.16. FLRA, A Guide to the FLMRP, p. 13.
217 5 U.S.C. §7111.
218 5 C.F.R. §2422.26.
219 5 C.F.R. §2422.34.
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National Consultation Rights
The FSLMRS gives employees who are unrepresented by a certified union an additional
collective bargaining protection. National Consultation Rights (NCRs)220 entitle a union to be
informed of agency-proposed substantive changes in employment conditions and to present its
views and recommendations on the matter, even if the union does not have exclusive agency
recognition. An agency must consider any views and recommendations submitted to it by a union
with NCRs before making a final decision. A union gains NCRs if a unit does not have a
recognized exclusive representative within its agency and the union is the exclusive
representative of at least 3,500 or 10% of employees in the agency.221
Decertification
An election can also be held to determine if a bargaining unit no longer wishes to be represented
by its union. As with a petition for a representation election, an individual, union, or agency can
file a petition for an election, and the petition must be signed by or accompanied by authorization
cards of 30% of the unit employees who allege that the union no longer represents a majority of
the unit employees.222
Additionally, a regional director can revoke certification if a union disclaims its interest in
representing the unit or if the regional director determines that the unit is no longer appropriate
because of a “substantial change in character and scope of the unit” and that an election is
unnecessary.223
Prohibited Conduct
The FSLMRS defines and prohibits certain conduct as unfair labor practices (ULPs) to protect the
rights of both workers and employers.224 The FLRA can issue cease-and-desist orders to stop a
ULP, require employers to reinstate and give backpay to employees who were improperly
discharged for union activities, and require parties to renegotiate contracts in accordance with its
orders. A union may be required to give an employee backpay if it caused an employer to
discharge that employee.225
During Union Organization Efforts
The FSLMRS protects employees’ right to organize and imposes restrictions on employers and
unions during this process. The statute prohibits employers and unions from interfering with or
coercing employees exercising their right to organize. For instance, neither an employer nor a
union can threaten discharge or make threatening statements to employees to influence their

220 5 U.S.C. §7113.
221 Ibid. FLRA, A Guide to the FLMRP, p. 10.
222 5 U.S.C. §7111(b).
223 5 C.F.R. §2432.3(b).
224 5 U.S.C. §7116.
225 5 U.S.C. §7118.
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decision to join a union. A union cannot cause an employer to discriminate against employees
regarding employment conditions.226
Agencies are prohibited from sponsoring, controlling, or assisting a union. Prohibited conduct
includes actively assisting a union in organizing its employees or campaigning for a particular
union or individual running for union office.227
During an Ongoing Employer-Union Relationship
Both employers and unions are required to negotiate in good faith with one another over
conditions of employment. This obligation to negotiate includes, if requested by either party, the
duty to enter into a written collective bargaining agreement. This obligation does not require
either party to make a concession or agree to a proposal by the other party.228
The duty to bargain in good faith includes coming to the bargaining table with a willingness to
reach a collective bargaining agreement and meeting at reasonable times and places. For instance,
both employers and unions are required to bargain on negotiable matters proposed by the other
that are not already in the collective bargaining agreement. Additionally, employers cannot
unilaterally change working conditions. Working conditions might include work hours or
allocation of employee offices. Neither employers nor unions can refuse to cooperate in impasse
procedures and decisions. Failure to cooperate includes failing to comply with a final order from
the Federal Service Impasses Panel, the FLRA’s dispute resolution entity.229
Employers cannot discipline or discriminate against employees who file complaints under the
statute. A union cannot coerce, discipline, fine, or attempt to coerce a union member as
punishment or to hinder their work. Employees are protected from union harassment when they
are performing their official work duties.230 Additionally, unions cannot discriminate against
employees regarding union membership because of race, color, creed, national origin, sex, age,
civil service status, political affiliation, marital status, or handicap.231 Neither employers nor
unions can refuse to comply with any other provision of the statute.232
During Self-Help
Federal employees can use self-help to exert pressure on an employer, but the types of self-help
available are more limited than under other labor relations laws. Federal employees can engage in
peaceful, informational picketing so long as the activity does not interfere with agency
operations. However, unlike private-sector employees, federal employees cannot participate in,
and unions cannot encourage, strikes, work stoppages, slowdowns, or pickets that interfere with
agency operations. Additionally, a union commits a ULP if it fails to prevent such activity. If a

226 5 U.S.C. §7116. FLRA, A Guide to the FLMRP, pp. 43-48.
227 5 U.S.C. §7116(a)(3). FLRA, A Guide to the FLMRP, p. 44.
228 5 U.S.C. §§7116, 7103(a)(12).
229 FLRA, A Guide to the FLMRP, pp. 18-19, 45-47.
230 5 U.S.C. §7116. FLRA, A Guide to the FLMRP, pp. 44-46.
231 5 U.S.C. §7116(b)(4).
232 For instance, an employer commits a ULP if it refuses to honor dues allotment authorizations for a representative
submitted by employees pursuant to 5 U.S.C. §7115.
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union willfully or intentionally supports such actions, the FLRA can revoke its exclusive
recognition status.233
FSLMRS Enforcement and Adjudication Processes
The FSLMRS established the Federal Labor Relations Authority (FLRA) as the primary agency
to administer and enforce the statute. The FLRA has the authority to investigate and adjudicate
representation disputes, ULP complaints, and contract disputes. The Federal Mediation and
Conciliation Service (FMCS) provides voluntary mediation services to parties who have reached
a negotiation impasse. The Federal Service Impasses Panel (FSIP) is an entity within the FLRA
that provides additional assistance in resolving disputes if FMCS services cannot resolve the
dispute or if the parties specifically request FSIP’s services. The FLRA’s General Counsel
investigates and prosecutes ULP complaints. FLRA decisions can be reviewed by federal courts
in limited circumstances; judicial review of FSIP decisions is unavailable.
The Federal Labor Relations Authority
The FLRA is an independent federal agency charged with administering and enforcing the
FSLMRS. It is composed of three members (the Authority) who are appointed by the President
for five-year terms. No more than two can be of the same political party. Hereafter, “FLRA”
refers to the three-member board, the General Counsel, and the FSIP as a collective body. The
“Authority” refers to the three-member board alone. The Authority’s responsibilities include
hearing ULP cases, determining the appropriateness of units, and conducting secret ballot
elections.234
The FLRA’s General Counsel investigates and prosecutes complaints before the Authority and is
appointed by the President for a five-year term. The FLRA can delegate its power to determine
election issues and to investigate and prosecute ULP complaints to its seven regional offices.235
The Federal Mediation and Conciliation Service
FMCS provides mediation services for parties who have reached an impasse in negotiations.
FMCS services are available to both private and public workers and employers. In the federal
sector, use of FMCS services is voluntary. If federal parties are unable to resolve their dispute
using FMCS services, they can request that FSIP consider the matter or they can agree to binding
arbitration procedures. The arbitration procedures must be approved by FSIP.236 To aid in
arbitration, the FMCS maintains a list of approximately 1,400 independent arbitrators who can
hear and decide disputes over collective bargaining interpretation or application.237

233 FLRA, A Guide to the FLMRP, pp.47-48.
234 5 U.S.C. §§7104-7105.
235 5 U.S.C. §7104(f)(1). Although the Foreign Service falls outside of FSLMRS jurisdiction, the FLRA provides staff
support to the Foreign Service Impasse Disputes Panel and the Foreign Service Labor Relations Board. Federal Labor
Relations Authority, Performance and Accountability Report: Fiscal Year 2011 (2011), pp. 3, 5, http://www.flra.gov/
webfm_send/542.
236 5 U.S.C. §7119(a).
237 Federal Mediation & Conciliation Service, 2011 Annual Report, 2011, p. 9, http://fmcs.gov/assets/files/
Public%20Documents/2011_Annual_Report.pdf.
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The Federal Service Impasses Panel
FSIP is an entity within the FLRA and provides assistance in resolving disputes between agencies
and unions over working conditions.238 FSIP comprises seven members who are appointed by the
President and serve staggered five-year terms.239
If parties cannot resolve an impasse by using a third-party mediator or if either party requests
FSIP’s services, FSIP can make recommendations to the parties and assist them in resolving the
dispute. If the parties still cannot come to an agreement, FSIP can impose an agreement on the
parties.240
Judicial Review
Issues delegated to a regional director or administrative law judge can be reviewed and then
affirmed, reversed, or modified by the Authority. In some cases, a party can also seek court
review of a final order made by the Authority.241 For a court to review a decision, generally, the
Authority’s determinations must be arbitrary or contrary to the law.242 Direct judicial review of
FSIP orders is unavailable.243
Dispute Resolution
Unfair Labor Practice Disputes
An employee, union, or agency can initiate a ULP investigation by filing a charge with an FLRA
regional director. Generally, a charge must be filed no more than six months after the alleged ULP
occurred. The charge is investigated by regional office staff, and the regional director, in his
discretion, may issue a complaint, which sets forth the alleged ULP and the hearing date before
an ALJ. If the regional director decides not to issue a complaint, the decision can be appealed to
the General Counsel.244
Throughout the processing of a charge, the Authority offers parties voluntary alternative dispute
resolution services, including training, education, and intervention at its Collaboration and
Alternative Dispute Resolution Office (CADRO).245 If the regional director decides to issue a
complaint and the parties are still unable to settle the dispute, the General Counsel prosecutes the

238 The Panel also assists in resolving agency-union disputes under the Federal Employees Flexible and Compressed
Work Schedules Act. 5 U.S.C. §6161(c)(2)(A).
239 5 U.S.C. §7119.
240 Ibid. FLRA, A Guide to the FLMRP, pp. 2-3.
241 5 U.S.C. §7123. Generally, parties cannot seek judicial review of the Authority’s decision not to issue a ULP
complaint, because it is not a final order under the statute. See Rizzitelli v. FLRA, 212 F.3d 710 (2nd Cir. 2000).
242 See, e.g., National Treasury Employees Union v. FLRA, 732 F.2d 703 (9th Cir. 1984).
243 Although direct review is unavailable, parties may have an indirect means to gain review of a Panel order. Courts
may grant a review if a party does not comply with the Panel’s order. Noncompliance is a ULP, which could be subject
to the statute’s provisions. See, e.g., Council of Prison Locals v. Brewer, 735 F.2d 1497 (D.C. 1984).
244 FLRA, A Guide to the FLMRP, pp. 49-51.
245 5 C.F.R. §2423.2.
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complaint before an ALJ. The ALJ’s decision can be reviewed by the Authority. If the Authority
does not review the decision, the decision becomes the Authority’s decision.246
If the Authority finds that a ULP has occurred, it can order an agency to reinstate an employee
with backpay, the parties to enter into a collective bargaining agreement, a party to stop
committing the ULP (cease-and-desist order), or any other action that would carry out the purpose
of the statute.247 Additionally, district courts can issue temporary relief (e.g., cease-and-desist
orders) during the processing of a complaint if the General Counsel believes that not maintaining
the status quo would frustrate the intent of the statute.248
Contract Disputes
Negotiability
Disputes over whether parties have an obligation to negotiate over a specific contract term
generally fall into one of two categories: negotiability disputes and bargaining obligation
disputes. In a negotiability dispute, the agency and union disagree about whether a proposed
contract term is contrary to the law such that the agency is not required to negotiate over it. If the
agency contends it is not required to negotiate over a matter, the union may initiate a negotiability
appeal in which it asks the Authority to review the matter. 249
In a bargaining obligation dispute, an agency usually argues that it has no obligation to bargain
over a matter because the proposal is already covered by an existing collective bargaining
agreement, the union has waived the right to bargain, a change initiated by the agency is too
minor to warrant bargaining, or the matter does not cover a condition of employment. These
disputes can be resolved through ULP resolution procedures, negotiated grievance procedures, or
negotiability appeal procedures.250
To initiate procedures in a negotiability appeal, the union must file a petition with the Authority’s
Office of Case Control, not the regional office. The parties then explain their dispute to the
Authority in a conference and a series of written allegations, and the Authority makes a decision.
If at any time during the appeal, the parties express an interest in mediation, they will be referred
to CADRO.251
Negotiated Grievance Procedures
All collective bargaining agreements are required to contain negotiated grievance procedures,
which lay out procedures for settling grievances. These procedures must provide for binding

246 FLRA, A Guide to the FLMRP, pp. 49-50.
247 Ibid., p. 51.
248 Federal Labor Relations Authority Office of General Counsel, “The Charge,” in Unfair Labor Practice
Casehandling Manual (2010), p. 14, http://www.flra.gov/webfm_send/497.
249 FLRA, A Guide to the FLMRP, p. 22.
250 Ibid., pp. 22-23.
251 Ibid., pp. 22-27.
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arbitration if a grievance cannot be settled by the parties. Usually, the procedures set forth in
negotiated grievance procedures are the only procedures available for resolving grievances.252
A negotiated grievance procedure automatically covers all issues, except those excluded by law or
those that parties explicitly exclude. Those subjects that are excluded from negotiated grievance
procedures by the FSLMRS include retirement, life insurance, or health insurance benefits and
suspension or removal for reasons of national security. Procedures other than the negotiated
grievance procedures exist for disputes involving a removal or demotion for unacceptable
performance; serious adverse actions, such as a reduction in grade or pay; employment
discrimination allegations; personnel actions prohibited by statute; and unfair labor practices.253
Either party can file an exception to most arbitration awards with the Authority within 30 days of
the award being served on the parties.254 The Authority can make recommendations and take
appropriate action regarding the award if it finds the award is contrary to law or on “other
grounds similar to those applied by Federal courts in private sector labor-management
relations.”255
Impasses
Parties have several dispute resolution options when they have reached an impasse in the
collective bargaining process. The agency and union may agree on a method to help resolve the
dispute, such as binding private arbitration.256 Parties can also voluntarily go to the FMCS for
assistance to resolve an impasse.257
If parties have exhausted voluntary attempts to settle an impasse, either party can request that
FSIP consider the issue. If FSIP asserts jurisdiction, it can either recommend dispute resolution
procedures to the parties (e.g., refer the parties to CADRO) or assist them in resolving the
impasse. FSIP’s procedures are generally informal, but it can hold hearings, administer oaths,
issue subpoenas, and take any other necessary actions to resolve the impasse. Afterwards, FSIP
makes a final decision and order, which is binding on the parties for the term of their
agreement.258
Emergency Actions
Unlike the RLA and FLRA, the FSLMRS does not have any emergency dispute resolution
provisions.

252 5 U.S.C. §7121.
253 5 U.S.C. §7121(c). FLRA, A Guide to the FLMRP, p. 32-33.
254 The Authority cannot review awards for disputes involving a removal or demotion for unacceptable performance;
serious adverse actions, such as a reduction in grade or pay; employment discrimination allegations; or personnel
actions prohibited by statute. Awards for these matters can be appealed to U.S. federal courts. FLRA, A Guide to the
FLMRP, pp. 38-39.
255 5 U.S.C. §7122.
256 Although parties can agree on private arbitration, the agreement must first be approved by FSIP. FLRA, A Guide to
the FLMRP, p. 28.
257 5 U.S.C. §7119(a).
258 Ibid., pp. 29-30.
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Appendix A. Glossary of Terms

Adjustment Board
An entity that provides dispute resolution services.
Agency Shop
A type of union-security through which employees who do not become
union members pay a fee to the union for its services as a bargaining agent.
Arbitration
Dispute resolution procedure in which parties present their arguments to a
neutral party (arbitrator) who determines what the resolution to an issue
should be. In binding arbitration, the arbitrator’s decision is imposed on both
parties. In nonbinding arbitration, the parties may choose to accept or reject
the arbitrator’s decision.
Authorization Card
A form evidencing that an individual employee wishes to be represented by a
union.
Bargaining Unit/Craft/Class
A group of employees who are or wish to be represented by a union.
Certification
The determination of the administrator of a secret bal ot election that the
results are the voting employees’ wishes. The union that receives the
majority valid votes cast will be certified as the employee representative.
Closed Shop
A type of union security that makes membership in a particular union a
precondition to employment. Closed shops are general y prohibited.
Collective Bargaining
The process of negotiation about working conditions between a union and an
employer.
Consent-Election Agreement An employer-union agreement that contains terms of a secret bal ot election
agreed on by the parties and can include the election’s time and place,
choices to be included on the bal ot, and the method to determine voting
eligibility.
Decertification
The process through which a union loses NLRB recognition as a bargaining
unit’s exclusive representative.
Economic Strike
An employee work stoppage for the purpose of obtaining economic
concessions.
Injunction
A court order requiring or restraining specifics acts.
Intermittent Strike
A series of employee work stoppages for a short period of time, fol owed by
resumptions of work.
Mediation
A dispute resolution procedure in which parties work with a neutral party
(mediator) who helps the parties reach an agreement on their issues.
Mediators do not have the authority to impose a settlement on the parties.
Partial Strike
An action in which employees remain on work premises and refuse to work
overtime, engage in work slowdowns, or choose to do some tasks but not
others.
Presidential Emergency
A special entity created by the President if he believes that a labor dispute
Board
will substantially affect the nation’s commerce. It can investigate and issue
reports to the President on the labor dispute at hand.
Right-to-Work Law
A law that prohibits or restricts union security agreements.
Secondary Activity
An employee action to exert pressure on an entity outside of a specific
dispute.
Secondary Boycott
An union attempt to influence an employer by either appealing to consumers
to discontinue the use or purchase of a business’s products or services or
attempting to dissuade employees from working for a particular employer.
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Secret ballot election
An election in which a person’s vote is secret. This is the primary way in
which a union gains certification as an exclusive employee representative.
Selective Striking
An employee work stoppage against one or a small number of employers as a
means to reach an agreement with all the employers concerned.
Self-Help
A way in which one party can exert pressure on the other party that occurs
outside of the formal dispute resolution process.
Sit-Down Strike
An employee work stoppage in which employees take possession of the
employer’s property and exclude others from entering.
Status Quo
The rates of pay, rules, and work conditions in effect before a dispute arises.
Sympathy Strike
An employee work stoppage for the purpose of supporting a cause or
another group of strikers.
Unfair Labor Practice
An action taken by an employer or a union that interferes with a party’s
rights under federal labor-management relations statutes.
Unfair Labor Practice Strike
An employee work stoppage for the purpose of protecting an unfair labor
practice.
Union Security Agreement
An employer-union agreement that requires employees to pay union dues
equal to the cost of representation as a condition of employment.
Union Shop
A type of union security that requires employees to become and remain a
union member as a condition of employment after 30 days of employment.
Union shops are generally legal.
Voluntary Recognition
An employer’s choice to recognize a union as the exclusive employee
representative without the use of a secret bal ot election.
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Appendix B. List of Acronyms

ALJ
Administrative Law Judge
CADRO
Collaboration and Alternative Dispute Resolution Office
EO
Executive Order
FAA
Federal Aviation Administration
FLRA
Federal Labor Relations Authority
FMCS
Federal Mediation and Conciliation Service
FSIP
Federal Service Impasses Panel
FSLMRS
Federal Service Labor-Management Relations Statute
GAO
Government Accountability Office
NCR
National Consultation Right
NLRA
National Labor Relations Act
NLRB
National Labor Relations Board
NMB
National Mediation Board
NRAB
National Railroad Adjustment Board
PEB
Presidential Emergency Board
RLA
Railway Labor Act
SBA
Special Board of Adjustment
TVA
Tennessee Valley Authority
ULP
Unfair Labor Practice
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Appendix C. Comparison of RLA, NLRA, and
FSLMRA Key Provisions
Statutory Provision
RLA
NLRA
FSLMRS
Statute Citation
45 U.S.C. §151 et seq.
29 U.S.C. §141 et seq.
5 U.S.C. §7101 et seq.
Administrative
•
National Mediation
•
National Labor
•
Federal Labor
Agency
Board
Relations Board
Relations Authority
•
National Railroad
•
Federal Mediation and
Adjustment Board
Conciliation Service
•
System Boards of
•
Federal Service
Adjustment
Impasses Panel
Coverage
Railway and airline carriers
Private employers,
Federal agencies, excluding
excluding railway and
those specifically excepted
airline carriers
Union Selection
•
Secret Ballot Election
•
Secret Ballot Election
•
Secret Ballot Election
•
Voluntary Recognition
•
Voluntary Recognition

•
NLRB-Mandated
Recognition
Union Security
Allowed
Allowed, unless prohibited
Prohibited
Clauses
by state law
Bargaining Subjects
“Rates of pay, rules, and
“Rates of pay, wages, hours
“Personnel policies,
working conditions”
of employment, and other
practices, and matters” not
conditions of employment”
otherwise provided for by
statute or relating to
position classification
Unfair Labor
General rules of fair dealing Specific provisions found in
Specific provisions found in
Practices
found in 45 U.S.C. §152.
29 U.S.C. §158.
5 U.S.C. §7116.
Dispute Resolution
Mediation and Arbitration
Voluntary settlement or
Voluntary dispute
formal adjudicatory
resolution services or
proceedings
formal adjudicatory
proceedings
Self-Help
Most self-help is allowed,
Self-help is allowed, so long
Limited forms of self-help
so long as it is not unlawful
as it is not violent, unlawful, are allowed, including
or “inherently destructive”
or unjustifiably injurious to
informational picketing.
of union or employer
employer interests. Some
Prohibited self-help
activity. Some allowed
prohibited activities include
includes strikes, work
activities are intermittent
intermittent and partial
stoppages, slowdowns, and
and selective striking and
strikes, acts of disloyalty,
pickets that interfere with
secondary activity.
and some secondary
agency operations.
activities.
Emergency
Presidential emergency
Presidential “board of
None
Procedures
board with potential
inquiry” with potential
congressional action
congressional action
Source: CRS analysis
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Author Contact Information
.

Alexandra Hegji


Analyst in Social Policy
adhegji@crs.loc.gov , 7-8384

Key Policy Staff

Area of Expertise
Name
Phone
E-mail
Analyst in Social Policy
Alexandra Hegji
7-8384
ahegji@crs.loc.gov
Analyst in Labor Policy
Gerald Mayer
7-7815
gmayer@crs.loc.gov
Analyst in Labor Policy
Benjamin Collins
7-7382
bcollins@crs.loc.gov
Legislative Attorney
Jon O. Shimabukuro
7-7990
jshimabukuro@crs.loc.gov


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