Jackson Walker

On December 7, 2018, the National Labor Relations Board (NLRB or Agency) presented its new Strategic Plan for fiscal years 2019 through 2022. The Strategic Plan identifies four main goals said to support the NLRB’s mission and vision: (1) prompt resolution of labor disputes through a collective 20 percent increase – 5 percent over each of four years – in timeliness of the processing of unfair labor practice charges; (2) resolution of a greater number of representation cases within 100 days of the filing of an election petition; (3) greater organizational excellence and productivity; and (4) efficient management of NLRB resources in a manner that instills public trust.

The NLRB, an independent federal agency created in 1935, has two primary functions:

  • To investigate and resolve allegations of unfair labor practices by employers and unions that are prohibited by the National Labor Relations Act (Act), the primary federal statute governing the labor relations of employees and employers in the private sector; and
  • To investigate and resolve questions regarding union representation by conducting secret-ballot elections among employees in an appropriate unit to determine whether or not the employees wish to be represented by a union.

It also engages in rulemaking. While the NLRB is thought to deal more with an employee’s right to unionize, its decisions impact all aspects of an employer’s labor relations with its employees. In recent years, it has been very involved in investigating whether non-union actions taken by an employer impinges on an employee’s right to engage in “protective concerted activity” as defined by the Act. This has included the NLRB’s issuance of a number of orders finding employer handbook policies or work rules on social media, solicitation, and employer email and computer system usage to violate an employee’s right to engage in protected concerted activity. Employers that interfere with such employee rights may find themselves the subject of an unfair labor practice charge, which they would then have to defend before the NLRB.

To achieve its first strategic goal, the NLRB seeks an annual, agency-wide 5 percent reduction in case processing time for unfair labor practice charges. This includes not only case handling by one of the NLRB’s 26 regional offices, but also the time it takes between the issuance of an Administrative Law Judge decision in a case and a Board order, and the issuance of a Board order and the closure of a case. In 2018, almost 19,000 unfair labor practice cases and 2,000 representation cases were filed with the NLRB. While its website states on average, it takes between seven and 14 weeks for a decision on the merits, anecdotally, it typically takes much longer and a huge backlog of cases have developed. In furtherance of this strategic goal, the NLRB’s General Counsel issued Memorandum GC-19-02, entitled “Reducing Case Processing Time,” which discusses how this goal impacts the NLRB’s various divisions.

With regard to its second strategic goal of resolving a greater number of union representation cases, the NLRB seeks to resolve a greater number of those cases within 100 days of the filing of the election petition. One approach it will take is to conduct annual quality reviews of regional representation case files and institute modifications to case processing as deemed appropriate. Further, it will maintain and enhance alternative decision-making procedures to expedite Board decisions in these cases, and institute a program that will transfer representation cases in offices with backlogs to offices with available staff.

With regard to its third and fourth strategic goals of achieving greater organizational excellence and productivity and managing its resources more efficiently, the NLRB aims to implement various strategies, including the following:

  • reduce the number of pending background investigations;
  • identify areas through which the Agency can enhance its diversity and talent;
  • enhance internal and external recognition programs to acknowledge employee contributions;
  • improve its productivity by standardizing business processes in a single unified case management system, increasing the rate of electronic service, delivery and filings and the amount of information shared electronically with the public making its case processes more transparent;
  • employing further non-traditional outreach to unrepresented employees; and
  • performing joint outreach with sister organizations to better education workers and employers on their rights and obligations under the National Labor Relations Act.

The NLRB foresees various factors that can affect its stated goals, such as insufficient funding of the Agency budget, a greater number of cases actually filed than the Agency projects will be filed, and a decrease in its case settlement rate. Any of these and other factors may directly affect its ability to achieve its strategic goals. While it is thought that the current political makeup of the Board is more pro-employer and that recent Board guidance and decisions favor employers, nonetheless, employers should remain vigilant about the potential of their workplace policies and employee handbooks to violate current NLRB guidance, and consult their labor and employment attorney with any questions.

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