NLRB Jurisdiction over Foreign Governments

In State Bank of India the National Labor Relations Board reversed its discretionary abstention policy and asserted jurisdiction over the American operations of a foreign government employer. Previously the Board had declined to assert jurisdiction over these employers out of deference to foreign sovereigns, and because of the Supreme Court's admonition against extraterritorial application of the National Labor Relations Act in the absence of "an affirmative intention of the Congress clearly expressed." The Board now believes that neither public policy nor the policies of the NLRA can justify abstention. Although the Board has deemed the recently enacted Foreign Sovereign Immunities Act of 19767 (FSIA) inapplicable to its administrative proceedings, it nonetheless believes that the FSIA supports its decision to assert jurisdiction over foreign government employers doing business within the United States. This paper will analyze the Board's new approach in light of both judicial developments under the NLRA and the Act's legislative history.

The FSIA also bears examination to determine its applicability to, and possible effect upon, Board determinations involving foreign government employers. The appropriateness of the Board's decision to assert jurisdiction must ultimately be determined in the context of the policies underlying the Board's earlier abstention, the policies now emphasized by the NLRB, and the concerns of the Congress as reflected in its enactment of the FSIA.