United States: NLRB Update: Board Issues New Strategic Plan, Extends Joint-Employer Rule Comment Deadline And Announces NLRB Solicitor Appointment

Last Updated: December 27 2018
Article by Kathryn Siegel and Melissa L. Shingles

The National Labor Relations Board recently issued a new Strategic Plan for Fiscal Years 2019 through 2022, extended until January 14, 2019 the comment period on its proposed joint-employer rule, and announced the appointment of Fred B. Jacob as NLRB Solicitor.

Strategic Plan

In the Strategic Plan, Board Chairman John Ring and General Counsel (GC) Peter Robb announced the NLRB's goals for the next four-year period, including the overarching initiative of achieving a 5% per-year reduction in case processing time. The Strategic Plan was accompanied by Memorandum GC 19-02, that addresses the statistics and thought process that led to the implementation of these goals, along with guidance as to how these goals and initiatives will affect and be implemented across the various NLRB Divisions and Regions. Specifically, the Memo explains that the General Counsel's office is "vesting the divisions and Regions with wide discretion to develop the systems and processes . . . to meet the Agency's strategic goal." This will necessarily result in differences in case processing by Region, posing challenges for practitioners who practice in more than one Region.

Strategic Goal of Five Percent Reduction in Case Processing Time

The NLRB's Strategic Plan is issued every four years by the Board Chairman and GC. The document sets forth goals, objectives, initiatives, strategies, and performance measures for managing Board operations and assessing progress. Although the strategic goals set forth in the 2019-2022 Plan are nearly identical to those laid out in the previous plan issued in 2014, the recently released document features several new initiatives and measures.

In the new Strategic Plan, the Chairman and GC state four primary goals:

  • Promptly resolve labor disputes affecting commerce by fairly and efficiently investigating, settling, processing and adjudicating unfair labor practices under the National Labor Relations Act;
  • Promptly and fairly resolve all questions concerning representation of employees;
  • Achieving organizational excellence and productivity; and
  • Managing agency resources efficiently and in a manner that instills public trust.

To achieve these goals, the Strategic Plan outlines several specific initiatives and measures, including achieving a collective 20% increase (5% over each of four years) in timeliness in case processing of unfair labor practice charges, and achieving resolution of a greater number of representation cases within 100 days of the filing of an election petition.

To curtail the trend of increased processing time and a rise in unresolved cases at the end of each fiscal year, the Strategic Plan also calls for a 5% per year decrease in processing time throughout the NLRB by reducing the time:

  • required to resolve meritorious unfair labor practice charges through withdrawal, dismissal, settlement or issuance of complaint;
  • between issuance of complaint and settlement by administrative law judge or issuance of the ALJ decision;
  • between issuance of an ALJ decision and Board Order; and
  • between issuance of a Board Order and closure of the case.

As noted in the Strategic Plan, this new approach attempts to reverse sluggishness that resulted in part from the Board's Impact Analysis Program, implemented in 1996. The median time between charge filing to complaint issuance had lengthened from between 44 to 55 days in the 1980s, to between 93 and 128 days in the period from 2002 to 2018.

Rescission of Impact Analysis Program, Uniform Excuses, and Attendant Time Targets

To assist Regional Directors in achieving the goal of reduction in case processing time, effective immediately, the Board is rescinding the mandate to categorize cases under the Impact Analysis Program. Regional Directors will no longer be measured by their ability to meet time targets under the program. Instead, Regional Directors will be assessed based on time between:

  • filing of charge to its disposition.
  • issuance of Board complaint to closure of the case.
  • approval of an informal settlement agreement to closure of the case.

As explained further in the GC's accompanying memo, Regions will now be provided with greater discretion to establish necessary case management processes and procedures. The GC states in his memo: "[n]o singular system will be imposed on Regions or otherwise administered on a nationwide basis. Regions are free to implement their own programs in conjunction and consultation with the Division of Operations Management, consistent with statutory priorities."

The GC further notes in his memo his understanding that this may result in slightly differing approaches across Regions. Potential changes considered by the Regions include:

  • Being more firm with the deadlines for the Charging Parties to provide their evidence in support of the unfair labor practice charge; Charging Parties will be expected to be able to provide such evidence at the time of filing or within a week of filing.
  • Conducting a closer review of Charging Party's evidence to determine if there is a prima facie case before asking for evidence from the Charged Party, and dismissing the charge if the Charging Party has not put forth evidence that supports a prima facie case.
  • Demanding faster turnaround times for Charged Parties to respond to requests for evidence – fewer extensions will be granted and extensions will be shorter.
  • Providing less time for the parties to try to settle between a merit determination and issuance of a complaint.
  • Issuing a complaint on one charge while other related charges are still pending, rather than waiting to issue one omnibus complaint.

Littler will continue to monitor changes to the individual Regions' case processing approaches and provide updates.

Other Year-End National Labor Relations Board News

The Board also announced this week that it is once again extending the comment period regarding its proposed rulemaking on its joint-employer standard. The Board previously extended the comment period for an additional 30 days. Parties may now file comments on or before Monday, January 14, 2019.

In a busy week of press releases, the Board also announced the appointment of Fred B. Jacob as NLRB Solicitor. Mr. Jacob returns to the Board after four and a half years as Solicitor of the Federal Labor Relations Authority (FLRA). He previously served in numerous roles during his 17-year NLRB tenure, including Deputy Assistant General Counsel in the Appellate and Supreme Court Litigation Branch. Mr. Jacob replaces William B. Cowan, who became Regional Director for Region 21 in 2016.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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