By: Fred Preis and Philip Giorlando
The National Labor Relations Board has implemented a new intake protocol that significantly changes how unfair labor practice charges are processed. The protocol should assist employers who are typically the Charged Party in most NLRB cases. Designed to address severe charge backlogs, the new protocols will delay and potentially prevent charges from advancing to investigation, especially those unable to meet initial evidentiary requirements.
Initial Assessment of ULP Charges
Charges are now placed on an “unassigned case list” until charging parties submit detailed documentation within two weeks, including timelines, supporting evidence, and witness lists. Failure to meet this deadline can result in dismissal. Only after screening by a regional “unassigned case list specialist” will charges be assigned to an investigator when capacity permits—a fundamental shift from immediate assignment.
Practical Implications for Employers
Early Case Dismissals. The two-week documentation deadline creates an early barrier that may lead to dismissal of baseless charges by employees or unions lacking clear factual support.
Extended Timelines. Cases clearing initial screening face additional delays as understaffed regional offices work through the unassigned list.
Limited Exceptions. Only the rarely filed charges related to existing cases and “statutory priority” charges (like strikes) bypass the protocol.
Strategic Considerations
This protocol provides employers breathing room in early stages, though meritorious charges will still proceed. Employers should use this time to retain counsel and investigate claims thoroughly. But the best defense is still reducing the likelihood of charges at all by:
- having handbooks reviewed regularly, especially complaint procedures;
- having supervisors trained on handling employee concerns and escalating to HR; and
- informing employees the employer will receive and investigate complaints.
Takeaway
Hopefully, the new protocol will assist in removing from investigation claims that lack merit. Employers facing charges should still promptly investigate the allegations, determine appropriate defenses, and preserve all relevant evidence.
BSW Labor and Employment Law Blog 