By: Steven M. Swirsky, Adam C. Abrahms, and D. Martin Stanberry
The shutdown of the federal government that took effect at 12:01 a.m. Tuesday October 1st has shut down all non-essential operations of the US government, including those of the National Labor Relations Board (Board or NLRB).
The Board’s Contingency Plan for Shutdown in the Absence of Appropriations (“Contingency Plan”) is now in effect, effective today. It details how the shutdown will impact the NLRB’s operations and what the shutdown means for employers, employees and unions with unfair labor practice and representation cases now pending. Our biggest take away: as of midnight, operations at the NLRB have virtually ceased.
Unaddressed in the Contingency Plan is what the impact of the shutdown will be on statutory deadlines such as the statute of limitations for the filing of unfair labor practice charges and time limits for the filing of certain representation petitions.
According to the Contingency Plan, 1600, or 99.3% of the NLRB’s employees will be furloughed. Only 11 employees, those at the very top of the agency, will remain active. The lucky excepted 11 are: the five members of the Board, the Acting General Counsel and Assistant General Counsel, the Executive Secretary, Solicitor, Security Chief and Chief Information Officer (collectively “Excepted Personnel”).
For the most part, the Excepted Personnel are Presidential Appointees (PAS), who are excepted by statute from the shutdown and furlough. As the Contingency Plan explains, the Excepted Personnel “will constitute the core of the Headquarters staff available to evaluate emergency situations as they arise and determine the appropriate response . . . .” Their contact information is included in a Contact List on the last page of the Contingency Plan.
According to the Contingency Plan, almost all case handling including hearings, investigations and elections will come to a halt. Additionally, information officer work, and public affairs/outreach work will halt until appropriations are made, either in a budget or a new continuing resolution. However, as part of the “orderly shutdown” “current or imminent labor disputes which are seriously adverse to the public interest” and which could be anticipated to require “immediate attention” (referred to as emergency situations”) were to be identified to the Excepted Personnel in advance of the shutdown and furloughs.
The NLRB will continue certain limited operations and action, including: (1) necessary court actions that are required to protect federal legal action already taken (no new litigation will be initiated); (2) maintenance of the Office of Inspector General hotline to protect the safety of life or property that may become involved in a labor dispute during the shutdown; and (3) other action as is required to address emergency situations.
The Contingency Plan states that emergency situations range from workplace violence to a non-functioning website and provides that in such cases, the excepted 11 may call in appropriate NLRB personnel to work on the situation “until it is sufficiently resolved for immediate purposes…”
Though senior NLRB personnel will retain their government-provided smartphones, NLRB employees were specifically instructed not to monitor their work e-mail or consult the NLRB’s intranet during a shutdown. While Board employees, like other furloughed federal employees are under strict instructions not to work while furloughed, the Contingency Plan advised employees that they may contact Excepted Personnel “if a matter comes to their attention that could present an imminent threat involving the safety of human life or the protection of property.”
On Monday, in anticipation of the shutdown, NLRB employees were expected to secure files, communicate the shutdown order, and notify parties of the cancellation of hearings, court appearances, and meetings.
How long the furlough might last is anyone’s guess. In the meantime, the NLRB’s website and servers will continue to run for those needing to conduct research – just don’t call if you have any follow up questions.