Hunton Employment & Labor Perspectives

The National Labor Relations Board’s (“NLRB”) then-acting General Counsel recently issued Memorandum GC 26-01, announcing a new, agency-wide docketing procedure that significantly reshapes how charges are processed. This move comes in response to a growing backlog, which has been exacerbated by both the unprecedented 43-day government shutdown and persistent staffing shortages in regional offices. These challenges, many stemming from decisions and policies under the NLRB’s prior General Counsel, have made such reforms not just prudent, but necessary. The NLRB’s recently confirmed General Counsel issued her own guidance at the end of January, making clear her intention to take on the backlog of charges problem head on and ensure more timely and efficient resolution of cases.

The process for initiating and investigating charges is now more stringent and front-loaded in comparison to the NLRB’s prior long-standing casehandling practices, which effectively allowed certain charges to languish within the government for months and even years. Charging parties must now submit a chronological outline of events (or optional questionnaire), relevant documents supporting the charge, and a witness list within two weeks of filing their charge. A charging party’s failure to comply with these requirements may result in a non-cooperation dismissal. Significantly, most charges will not be assigned to a Board Agent until this preliminary evidence is submitted and reviewed, and then only if a Board Agent is available with the necessary capacity. If no agent is available, cases will remain unassigned, effectively pausing active investigations until resources permit.

This new approach is likely to result in several notable outcomes. First, by requiring charging parties to promptly assemble and submit substantial evidence, the Board hopefully will see a reduction in the number of frivolous charges. Second, it can quickly dismiss charges where the charging party does not meaningfully cooperate or fails to provide sufficient evidence, reducing the overall caseload and allowing the agency to focus on more meritorious matters. Significantly for the employer community, this should also result in a reduction in the number of charges for which employers will be required to expend time and resources in crafting a response.

By shifting more responsibility to charging parties early in the process, the NLRB likely hopes to clear out less viable cases and make better use of its limited resources, moving towards a more efficient and fairer adjudication process for all parties involved.