Hunton Employment & Labor Perspectives

Last week, the National Labor Relations Board (the “NLRB”) approved and released its Strategic Plan for Fiscal Years 2019-2022. Congress requires government agencies like the NLRB to formulate strategic plans every four years and release those plans to the public. These plans must include general goals and objectives of the agency and a description of how those goals will be achieved. This iteration of the NLRB’s Strategic Plan largely focuses on the agency’s goals to reduce the processing time for unfair labor practice charges and representation cases, acknowledging the problem that “[o]ver the years, the amount of time it takes for cases to be processed and for resolutions to be reached has increased and backlogs of cases have developed. This initiative has been developed to reverse these trends.”

One notable objective set forth in the Strategic Plan is the NLRB’s goal to achieve a 20% increase in timeliness in case processing of unfair labor practice charges over the next four years. Specifically, the agency seeks to decrease the average time required to resolve unfair labor practice charges by 5% each year. The Strategic Plan focuses on increased efficiency during all stages of unfair labor practice adjudication including (1) the investigation of a charge, (2) the period between the issuance of a complaint and resolution by an administrative law judge, (3) the period between the issuance of the decision by an administrative law and a Board Order, and (4) the period between a Board order and closing of a case. It would be a welcomed relief to employers if the NLRB can make good on this goal, as an unfair labor practice charge often times takes years to resolve, largely due to the backlog of cases.

The Strategic Plan also outlines the NLRB’s objective to increase its efficiency in the resolution of representation cases. The Strategic Plan specifically outlines the NLRB’s objective to increase the percentage of representation cases resolved within 100 days following the filing of an election petition. This objective, coupled with the NLRB’s controversial ambush election rules, will continue to place employers at a great disadvantage during a union’s organizing campaign. As we have discussed in previous posts regarding the ambush election rules, a shorter time period from the filing of a petition to a union election means the an employer has less time to campaign and provide its employees information they will need to make an informed decision regarding how to vote in the election. This sustained focus on the quick resolution of representation cases by the NLRB will continue to give unions an unfair advantage during organizing campaigns. Accordingly, employers should maintain their implementation of preemptive measures to ensure employees are satisfied in their positions, making them less prone to solicitation by unions.

While the Strategic Plan also includes vague and nonspecific goals such as “achieving organizational excellence” and “managing agency resources efficiently,” these goals provide employers with little concrete guidance on the NLRB’s strategic objectives over the next four years. The real takeaway for employers lies in the NLRB’s specific and measurable goals to increase efficiency of unfair labor practices and representation proceedings—both a positive and negative sign for employers, respectively.