The National Labor Relations Board’s General Counsel’s office has issued an internal Memorandum (“Changes to Case Processing Part 1”) to all regional directors, officers-in-charge, and resident officers announcing immediate enactment of case processing changes.

The six-page memorandum, obtained by Bloomberg BNA, addresses four policies. Memorandum ICG 18-06 (July 30, 2018). According to the Memorandum, the changes are based “almost entirely from suggestions received from all levels of the Agency….”

The first four pages of the memorandum, on “Decision-Writing Centralization,” outline the “streamlin[ing of] the decision-writing process” of pre-election R-Case decisions that arise within each of the four NLRB Districts (each District consists of a number of Regions). The General Counsel wants a dedicated group of decision writers who have “the time, resources, and specialized skills to efficiently draft decisions…” and, therefore, would be able to help achieve quality consistency across all Districts and Regions.

The Memorandum states that the number of writers for each District will vary from one to three, based on an analysis of the number of R-Case pre-election decisions issued during fiscal year 2017. During the time an individual is a decision writer, his unfair labor practice case workload will be adjusted to accommodate his writing duties.

The Memorandum contains some interesting statistics. They show a large disparity across the NLRB in the number of pre-election R-Case decisions written in each Region. During FY 2017, 157 decisions were issued across the NLRB. Four Regions wrote at least 12 decisions, and nine wrote three or fewer. The Memorandum also reveals wide disparities in the amount of time it takes Regions to write decisions. The median amount of time two Regions took to write decisions was 15 or fewer days (the lowest regional median was 14 days), while the median amount of time one of the Regions took was 68 days. Thus, another goal of centralized decision-writing is “lower and more consistent medians across Districts and Regions.”

The second policy, on “Streamlining Advice Branch Submissions,” addresses the delays in processing cases submitted to the Advice Division that have “been a cause of criticism” inside and outside of the NLRB. The General Counsel proposes to reduce required paperwork through the submission of “short form memos” to Advice. Additionally, some Advice submissions may be in the form of an email. Further, other submissions may be made by incorporating all of the necessary evidence by reference if it can be found in, for example, the “Agenda Minute.”

The third policy, on “Streamlining Ethics Issues,” states that legal ethics guidance memoranda will be categorized and stored in a searchable format that Regional personnel can access. Consistent with the overall goal of the Memorandum, this should increase consistency and efficiency across the Regions when they deal with ethical issues.

The final policy change is entitled “Team-Decisions.” Regional Directors are instructed to “delegate appropriate case-handling decision-making authority” to supervisors, rather than participating in even “the more mundane case-handling decisions.” The breadth of the “decision-making authority” that may be given to supervisors may include, for example, approving dismissals, withdrawals, or settlements. It also may involve allowing the supervisor and agent to make the final decision about a charge where they agree on the merit or lack thereof. The General Counsel’s office notes that 17 regions allow supervisors to participate in decision-making and have experienced “great success.”

The Memorandum states that delegation is “appropriate in most Category 1 [exceptional impact] cases and some Category 2 [significant impact] and 3 [important impact] cases.” The Memorandum notes that a Regional Director’s appropriate delegation of authority to supervisors and managers will be positively noted in their annual appraisals under “critical element 2 (leading people 10%).” The Memorandum also states “the extent to which a supervisor or manager steps up and assumes these responsibilities will be positively noted in their appraisals.”

Additional changes should be expected. In addition to the Memorandum’s title (“Changes to Case Processing Part 1”), footnote 1 states that “some other items… will be addressed in one or more memos soon to follow.”

Please contact Jackson Lewis if you have any questions.

 

 

 

 

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Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues.

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Philip B. Rosen Philip B. Rosen

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing…

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.