In a new Operations-Management Memorandum issued March 9, the NLRB Office of the General Counsel urged local Regions of the Board to take mind of the agency’s FY16 budget shortfall and engage in further cost-saving measures in the investigation and prosecution of all cases. Unions should be aware of the financial strain the Regions are facing and should anticipate the following effects – great and small – on their cases moving forward:
1. Expect more pressure for charge settlements and stipulated election agreements. If unions take nothing else from this OM Memo, they should be aware that the Regions are under new pressure to settle rather than prosecute ULP charges and to obtain election stipulations rather than hold R hearings wherever possible. This may mean that the Regions are willing to settle charges on terms they otherwise might not, whether or not the charging party is in agreement.
2. Post-trial briefs out; ALJ bench decisions in. The Memo stresses that prosecuting Board attorneys should avoid agreeing to post-trial briefing in ALJ trials and – in a surprising move – should urge Administrative Law Judges to issue oral decisions from the bench at the end of their trials where possible. As the Division of Judges is under instruction to resist issuing bench decisions in complex ULP cases (see Des Moines Register and Tribune Co., 339 NLRB 1035, 1035 fn. 1 (2003) (instructing that judges should invite briefs in complex cases and conduct a more thorough written analysis)) and is not bound by the instructions of the OM Memo, it will be interesting to see whether ALJs will acquiesce to such requests for bench decisions and how the Board will react on review. The practical result of bench decisions, of course, would be quicker results for unions and their members in pending ULP cases, but whether this results in better outcomes is yet to be seen.
3. Election resources are tight; if appropriate, consider suggesting a mail ballot.The Memo briefly touches upon election arrangements, urging agents overseeing elections to familiarize themselves with low- and no-cost spaces in their areas. Unions headed for an election can do themselves and their Board agents a favor by being ready with a list of such spaces near the work site when contacted by the Board to negotiate a stipulated election agreement. The Board’s lack of resources to hold elections could also mean increased receptiveness to mail-ballot elections where the circumstances could make it difficult for the workers in a proposed unit to be in the same place at the same time. Know the R cases that support your request for a mail ballot: San Diego Gas & Elec., 325 NLRB 1143 (1998) (mail-ballot elections appropriate where eligible voters are geographically scattered over a wide area, are scattered in the sense that their work schedules vary significantly, or where a strike, picketing, or lockout is in progress); Reynolds Wheels Int’l, 323 NLRB 1062 (1997) (shift scattering that would have forced Board to hold three-day manual election to accommodate all voters sufficient for mail ballot); N. Am. Plastics Corp., 326 NLRB 835, 836 (1998) (upholding Regional Director decision which factored in the agency’s scarce resources when determining that a mail-ballot election was appropriate).
4. Overall, expect less resource investment in the investigation and prosecution of cases – and be prepared to lend a hand.
- Unions and employers should be prepared to travel to present ULP evidence. To minimize ULP investigation travel costs, the Memo instructs that all institutional charging parties (unions and employers) located within 120 miles of their nearest Board office should be encouraged to travel to provide affidavit or other ULP evidence, rather than requesting that a Board agent travel to them to investigate.
- However, expect newfound acceptance of phone and video technology for affidavits and hearing testimony. If asked to travel an unreasonable distance to provide evidence in an investigation or hearing, unions should consider suggesting that they could provide witnesses electronically, by phone or video conference, both suggested in the Memo as reliable and cost-friendly alternatives Board agents should explore.
- BYOP: Bring your own paper. Consistent with recent reported experiences from labor practitioners, if submitting documentary evidence in an investigatory interview or ULP hearing, be prepared to provide all copies. Witnesses providing affidavit testimony who would like a copy of their affidavits at the end should also be prepared to bring their own paper.