The shutdown of the federal government has reached many facets of society, including the NLRB. The agency for all intents and purposes closed within a day of the lapse in funding, with Board agents throughout the country sending e-mails and letters to parties informing them case handling had been suspended and directing everyone to the NLRB’s website (although, oddly, access to the entire website is pretty much shutdown as well, although the reason for such a closure is mysterious). According to the NLRB Contingency Plan, of the 1611 personnel at the agency, only 11 remain working: the five appointed Board members, the General Counsel and some senior staff.
We know, of course, that investigations of unfair labor practice charges have been suspended, hearings and elections scheduled for this period all have been postponed indefinitely, and of course new decisions on pending cases are not being issued. The threat of a shutdown is not new and the government has established procedures for a lapse in funding. The agency published NLRB Shutdown Procedures in the Federal Register on October 1, 2013 (the first day of the fiscal year). These guidelines provide some clarity about pending issues:
- Deadlines. All deadlines for filing of documents with the agency are extended “for each day on which the Agency’s offices are closed for all or any portion of the day, one day shall be added to the time for filing or service of the document.”
- Statute of limitations. Under Section 10(b) of the NLRA, the time limit for filing a charge is six months. The guidelines state that extensions of time “cannot apply to the 6-month period” provided by the Act, but that it intends to construe the shutdown period as an extension of the phrase “Saturday, Sunday or legal holiday” which would extend the filing period to the next day after the shutdown. The guidelines caution parties that if a statute of limitations were to expire during the shutdown period “it would be prudent to file the charge during the interruption in the Board’s operations by faxing a copy of the charge to the appropriate Regional Office.”
- Postponement of unfair labor practice hearings hearings. Various time deadlines for postponing hearings are set forth in the guidelines pegging the week prior as triggering a postponement: “For example, if there has been no appropriations bill enacted by the close of business Monday October 7, 2013, all hearings scheduled for the week of October 14, 2013 will be postponed indefinitely.”
- Representation Elections and Hearings. A postponement strategy for representation matters similar to that for unfair labor practice hearings appears in the guidelines: “if by the close of business on the Tuesday preceding the Monday of the week in which the election or pre or post election hearing is scheduled” then the matter will be postponed indefinitely.
As the shutdown continues for a longer period of time one can expect further delays of all matters pending before the agency. It is natural to assume that the 1600 personnel currently on furlough will require some additional amount of time to get back into the rhythm of things once they return to work. We will keep you posted on further developments.