Top 10 List: How to be Successful in Front of the NLRB Presen ented ed by: Jess ssica ica Dietz, etz, Officer icer in Charg arge Subregion egion 36 - Portland nd
Tips for Success • How to be prepared before filing • Representation Petitions • Unfair Labor Practice Charges • Practical information for case processing • Understanding the mechanics of the Regional decisions • Resources available to you for free information
Tip #1 – Filing Representation Petitions • Incomplete/unserved petition paperwork is a big problem! We can’t docket your petition if it is not correctly filed Solutions: • Use current forms available at www.nlrb.gov/resources/forms • New Representation Case Rules effective April 14, 2015 • READ and FOLLOW all instructions regarding serving your petition and other required documents
Tip #2 – Processing Representation Petitions • Don’t file your petition and go on vacation! • Hearing set 8 days from filing date • Petitioner postponement requests not customarily granted • Be responsive to the Board Agent and return calls/emails promptly • Line up sources of information in advance – have employees available who can answer questions/give feedback so you can respond to Board Agent questions
Tip #3 – Filing Unfair Labor Practice Charges • Use the online filing wizard at www.nlrb.gov • Not required, but may be easier for you • Can check allegations off from a list • Can electronically sign and file • You can upload and e-file a charge you have already filled out and signed at www.nlrb.gov • Do not wait 5 months and 28 days to file (and serve) your charge! • 6 month statute of limitations • Amendments often needed, may not be able to amend past 6 months
Tip #4 – Working with Witnesses • It is the responsibility of the party filing the charge to have witnesses to support the ULP charge allegations • Talk to your witnesses in advance so you can tell the Board Agent what you expect the testimony/evidence will be • Have your witnesses lined up, ready to cooperate and have their contact info available for the Board Agent • If you have nervous witness, tell the Board Agent so that they can carefully explain the process
Tip #5 – The ULP Investigation • If you have documents, provide them at the beginning of the investigation (after filing, before first affidavit) • Be responsive to Board Agent contacts • Promptly return calls/emails • Explain your theory of the violation to the Board Agent • Charge language is usually general • Your theory may not obvious! • Board Agent may question/challenge your theory – this is okay • You may be asked to present additional evidence that you did not anticipate
Tip #6 – The Decisional Process • We are neutral in the investigation and decisional process • The Board Agent reports the case to the Regional Director • The Board Agent presents evidence in support of, as well as evidence against, a violation and cites the relevant legal authorities • The Board Agent recommends a decision, but the Regional Director is the actual decision maker
Tip #7 - Withdrawal vs. Dismissal • If your charge has no merit, the Board Agent ask if you want to withdraw the charge or have it dismissed • Withdrawal • No decision is communicated to the other side • Based on timing, they other side may assume a no merit decision • No appeal rights • Dismissal • Letter issues to all parties stating no merit • Can have short or long form letter (long form has summary of decision) • Gives appeal rights
Tip #8 – Deferral of Your Charge • If your charge is deferred, you have responsibilities • If a grievance is already on file • Process it through the contractual procedure • If a grievance is not yet filed • Promptly file a grievance over the ULP issue that was deferred and process it • If you abandon or settle the grievance, we will solicit withdrawal of the ULP charge • We send status letters for deferral cases – respond to them! If not, you risk dismissal of your charge
Tip #9 – Available Remedies • If you are unsure, ask the Board Agent what the potential remedies are if your case has merit • Our remedies are limited by the Act itself and case law • 60 day Notice posting – physical, intranet, e-mail • Offer of reinstatement (discharge cases) • Backpay and benefits • Other remedies as appropriate • You may be able to achieve a different or better remedy via a non-Board resolution • Withdrawal of your charge must be approved by the Regional Director
Tip #10 – Free Information • The www.nlrb.gov website has a wealth of information • Forms for filing • Case documents • Manuals • Board decisions • You can call the NLRB and speak with an Information Officer • We do not provide legal advice • We can discuss your issue with you and assist you with forms • Toll free: (866) 667-NLRB • Portland office: (503) 326-3085
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