Labor Law–The Permissible Scope of the National Labor Relations Board’s Rule Against Relitigation

Under section 9 of the National Labor Relations Act (NLRA or Act), the National Labor Relations Board (NLRB or Board) is charged with the responsibility of determining what group of employees constitutes an appropriate unit for purposes of collective bargaining with an employer. While the Board itself originally handled representation petitions and determined appropriate bargaining units, Congress in 1959 amended the NLRA and authorized the Board to delegate its section 9 powers to the regional directors in order to expedite NLRB operations. Pursuant to this authorization, and in accordance with its rule-making authority under section 6 of the Act, the Board issued a series of rules and regulations to govern the regional directors in the exercise of their delegated responsibilities. In order to effectuate the expeditious resolution of representation issues, rule 102.67 (f) established what has become known as the Board’s “rule against relitigation.” Through application of this rule, certain issues that are decided by regional directors in representation proceedings under section 9-and that are subsequently affirmed either by the Board’s denial of a request for review or by the failure of the aggrieved party to seek such review-are foreclosed from Board consideration in subsequent related unfair labor practice proceedings conducted under section 10 of the Act. The effect of this rule is to relieve the Board of its statutory function of determining the existence or absence of unfair labor practices. This res judicata feature of the rule against relitigation has produced a conflict in recent decisions by the Courts of Appeals for the First and Second Circuits in NLRB v. Magnesium Casting Company and Pepsi-Cola Buffalo Bottling Company v. NLRB. These cases reflect a fundamental perceptual difference concerning the congressional purpose behind the 1959 delegation authorization, the use of the rule against relitigation to effectuate that purpose, and the propriety of the rule’s effect on unfair labor practice proceedings under section 10.