TABLE OF CONTENTS

GUIDE TO BOARD

PROCEDURES

NATIONAL LABOR RELATIONS BOARD

OFFICE OF THE EXECUTIVE SECRETARY May 2023

i

Foreword

A Guide to Board Procedures has been prepared by the Office of the Executive

Secretary to assist parties in complying with the Board’s Rules and Regulations and

administrative practices. The Guide is intended to assist the practitioner who is

generally familiar with the Board’s procedural requirements, but it is especially

designed to help those with little or no familiarity with those rules. The Guide covers

filing requirements, and answers questions concerning many other procedures and

practices. It includes, among other helpful provisions, a quick reference guide for

unfair labor practice case filings, a checklist for preparing exceptions, cross-

exceptions, and briefs, and a number of helpful hints on how to avoid common filing

mistakes. The Guide also includes a table of contents that facilitates finding the rules

that pertain to particular areas of concern quickly and easily.

This Guide does not have the force of law or regulation, it is not intended to provide

legal advice, and it does not limit or extend the Board’s authority.

I would like to express my great appreciation to the Board staff who contributed to the

preparation of and updates to this Guide over the years.

Roxanne L. Rothschild

Executive Secretary

July 2020

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NATIONAL LABOR RELATIONS BOARD

GUIDE TO BOARD PROCEDURES

TABLE OF CONTENTS

Foreword..................................................................................................................................... i

1. Introduction ........................................................................................................................ 1

1.1 Purpose ........................................................................................................................... 1

1.2 Disclaimer ....................................................................................................................... 1

1.3 Revisions ......................................................................................................................... 1

2. The Board ........................................................................................................................... 1

2.1 Function, Jurisdiction, and Authority ............................................................................ 1

2.2 Location and Hours of Operation ................................................................................... 2

3. Common to All Cases ........................................................................................................ 2

3.1 Filing with the Board ....................................................................................................... 2

(a) Do I need an attorney or a legal representative? ............................................................. 2

(b) How do I designate a representative or notify the Board of a change of counsel or

representative? ...............................................................................................................2

3.2 Methods of Filing .............................................................................................................3

(a) How do I file documents with the Board? .........................................................................3

(b) What do I need to know about each method of filing? ......................................................3

(c) How do I determine if the Board received my filing?.........................................................5

3.3 Due Dates and Extensions ..............................................................................................5

(a) What is the Board’s definition of a due date or deadline for a filing? ................................. 5

(b) How are due dates determined? ...................................................................................... 5

(c) What kind of due dates can be extended? ....................................................................... 7

(d) How do I obtain an extension of time? ............................................................................. 7

(e) When should I file my extension of time request? ............................................................ 7

(f) Do I share the extension of time granted to another party?

.............................................. 8

3.4 Late Filings ...................................................................................................................... 8

(a) Are there any allowances for late filings? ........................................................................ 8

(b) How do I obtain permission to file a late document under the Board’s excusable

neglect rule? ...................................................................................................................8

3.5 Service on Other Parties, Statement of Service, and Proof of Service ..........................9

(a) Am I required to serve my filings on other parties? ...........................................................9

(b) Am I required to provide a statement of service and/or proof of service? ....................... 10

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3.6 Format and Length ........................................................................................................ 10

(a) Does the Board require a specific format for filings? ...................................................... 10

(b) Are there limitations on the length of my filing? .............................................................. 11

(c) How do I obtain permission to exceed the 50-page limit? ............................................... 11

3.7 Case Information ............................................................................................................ 12

(a) How do I obtain information about the status of a case? ................................................ 12

3.8 The Board’s Decision .................................................................................................... 12

(a) Will the full Board decide my case? ............................................................................... 12

(b) Will I have an opportunity for oral argument before the Board? ...................................... 12

(c) May the Board itself decide my case in the first instance rather having it ruled on

by a Hearing Officer, Regional Director, or Administrative Law Judge? .......................... 13

(d) Can a party move the Board to expedite its decision? .................................................... 13

(e) How will I be notified of the Board’s decision?

............................................................... 13

(f) What decisions does the Board publish in its bound volumes? ....................................... 14

(g) Can I move the Board to publish the decision in my case? ............................................ 15

4. Representation Cases ........................................................................................................ 15

4.1 Delegation ...................................................................................................................... 15

4.2 Motions and Requests ................................................................................................... 15

(a) When can I file a motion or request for review with the Board? ...................................... 15

(b) Can I file a Motion to Intervene with the Board? ............................................................. 15

4.3 Requests for Special Permission to Appeal ................................................................. 15

(a) When can I file a request for special permission to appeal a Hearing Officer’s

ruling? ........................................................................................................................... 15

(b) When should my request for special permission to appeal be filed? ............................... 16

(c) Will my request for special permission to appeal stay the hearing or election? ............... 16

(d) What must I include in my request for special permission to appeal? ............................. 16

(e) Can other parties file a response to the request for special permission to appeal? ......... 16

4.4 Subpoenas ..................................................................................................................... 16

(a) Can I appeal an adverse ruling by the Regional Director or the Hearing Officer on

a subpoena? ................................................................................................................. 16

4.5 Pre-Hearing Dismissals Unrelated to Pending Unfair Labor Practices ....................... 17

(a) How do I appeal the Regional Director’s pre-hearing administrative dismissal of

the petition? .................................................................................................................. 17

(b) What do I have to show for the Board to reverse the Regional Director’s decision

to dismiss a petition? ..................................................................................................... 17

4.6 Pre-Hearing Dismissals Based on Pending Unfair Labor Practice Charges .............. 17

(a) What do I file if the Regional Director dismisses a petition or directs that the

proceeding on the petition be held in abeyance, and this action is taken because

of the pendency of concurrent unresolved unfair labor practice charges? ....................... 18

(b) What do I have to show for the Board to reverse the Regional Director? ........................ 18

4.7 Decisions to Continue Processing a Petition Despite Pending Concurrent

Unresolved Charges of Unfair Labor Practices ........................................................... 18

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(a) How do I appeal the Regional Director’s decision to continue to process the

petition despite the existence of pending concurrent unresolved charges of unfair

labor practices? ............................................................................................................. 18

4.8 Rehearing, Reopening of the Record, or Reconsideration of Regional Director’s

or Board Decision .......................................................................................................... 18

(a) When must I file my motion for rehearing, reopening the record, or

reconsideration? ............................................................................................................ 18

(b) Can I receive an extension of time for the filing of my motion? ....................................... 19

(c) What must I demonstrate in my motion for rehearing, reopening the record or

reconsideration? ............................................................................................................ 19

(d) Can I move for reconsideration, rehearing, or reopening the record because I

forgot to raise an issue, place a document in evidence, or call an important

witness? ........................................................................................................................ 19

(e) Will the filing of any of these motions alone automatically stay further

proceedings? ................................................................................................................ 19

4.10 The Regional Director’s Pre-Election Decision or Order Following a Hearing. ....... 20

(a) When may I appeal the Regional Director’s Decision and Direction of Election or

Order based on a record developed at a hearing?

......................................................... 20

(b) Will the filing of a request for review stay the election? .................................................... 20

(c) How will the filing of a request for review affect the eligibility of employees who

are the subject of the request for review? ...................................................................... 20

(d) What do I have to show to persuade the Board to grant my request for review? ............ 20

(e) Can I presume that the Board will read the transcript of the hearing before ruling

on my request for review? ............................................................................................. 21

(f) Can I raise an issue with the Board that I did not raise with the Regional

Director? ....................................................................................................................... 21

(g) Can another party file an opposition to a request for review? If so, when? .................... 21

(h) Will the Board wait for an opposition before deciding the request for review? ................. 22

(i) What effect will my failure to file a request for review have on related unfair labor

practice cases? What effect does a denial have? .......................................................... 22

(j) Can I waive my right to a request for review?

................................................................. 22

(k) Can I withdraw my request for review? .......................................................................... 22

(l) What types of decisions will the Board issue? ................................................................ 22

(m) If the Board grants review without ruling on the merits of the issue(s) presented,

can I file another brief? .................................................................................................. 23

(n) Must a brief on review be a self-contained document? ................................................... 23

(o) What is the record the Board relies on following a grant of review? ................................ 23

(p) Can the Regional Director treat a brief on review as a request for

reconsideration? ............................................................................................................ 23

(q) Can the party requesting review withdraw that request following the Board’s grant

of review? ..................................................................................................................... 23

4.11 Post Election Decisions and Filings ........................................................................... 23

(a) What can I file when the Regional Director decides challenges and/or objections

following an administrative investigation? ..................................................................... 23

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(b) What can I file to appeal the Regional Director’s decision to issue a Notice of

Hearing on challenges and/or objections? .....................................................................24

(c) What must be shown to warrant a hearing? ................................................................... 25

(d) What can I file to appeal a decision on challenges and/or objections that issues

following a hearing? ...................................................................................................... 25

5. Unfair Labor Practice Cases ..............................................................................................27

5.1 Pretrial Motions .............................................................................................................. 27

(a) What is a motion for default judgment? .......................................................................... 27

(b) What are a motion for summary judgment and a motion to dismiss? .............................. 27

(c) How do I file a motion for summary judgment or a motion to dismiss? ........................... 28

(d) What is the due date for the filing a motion for summary judgment or a motion to

dismiss? ........................................................................................................................ 29

(e) Can I file a reply to an opposition to my motion or to a response to a notice to

show cause even if the Rules do not provide for it? ....................................................... 29

(f) Will the Board decide my motion for summary judgment or my motion to dismiss

before the hearing opens? ............................................................................................. 29

5.2 Requests for Special Permission to Appeal ................................................................. 29

(a) How do I file a special appeal? ...................................................................................... 29

(b) Can I request special permission to appeal the General Counsel’s refusal to

issue complaint? ........................................................................................................... 30

(c) If the Administrative Law Judge grants a motion to dismiss my entire case before

the judge files a decision, should I file a request for special permission to appeal

with the Board? ............................................................................................................. 30

(d) How long will it take for the Board to rule on my request for special permission to

appeal? ......................................................................................................................... 30

5.3 Subpoenas ..................................................................................................................... 30

(a) Can I obtain subpoenas to compel testimony or production of documentary

evidence during the investigation of an unfair labor practice charge and prior to

issuance of a complaint? ............................................................................................... 30

(b) How do I obtain subpoenas to compel testimony or production of documentary

evidence after issuance of a complaint? ........................................................................ 30

(c) How can I obtain enforcement of the subpoena if the person on whom I served it

refuses to comply? ........................................................................................................ 31

(d) If I or my client has been served with a Board subpoena and do not intend to

comply, should I file a request for special permission to appeal with the Board? ............ 31

(e) What do I have to show to revoke the subpoena? .......................................................... 32

(f) Should I withdraw my petition to revoke the subpoena if the matter has been

resolved? ...................................................................................................................... 32

5.4 Review of Administrative Law Judge’s Decisions and Orders .................................... 32

(a) How do I obtain review of an Administrative Law Judge’s decision and order? ............... 32

(b) How can I participate in the ADR Program? .................................................................. 34

(c) What happens if no party files exceptions to the Administrative Law Judge’s

decision?....................................................................................................................... 34

(d) In addition to exceptions and a brief in support of exceptions, what other

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documents can be filed after a judge’s decision issues? ................................................ 34

(e) Can I file my brief to the Judge, in whole or in part, with the Board? ............................... 35

(f) Can I adopt another party’s brief? .................................................................................. 36

(g) Can I file attachments to my briefs? ............................................................................... 36

(h) Must my cross-exceptions be related to exceptions filed by the other parties? ............... 36

(i) Can I combine the briefs I want to file? .......................................................................... 36

(j) What do I file to correct errors in the transcript? ............................................................. 37

(k) How do I file an amicus brief?........................................................................................ 37

(l) If I am not a charging party, respondent, or amicus, can I intervene in a Board

proceeding? .................................................................................................................. 38

(m) In addition to the exceptions and briefs, what does the Board review and

consider in making its decision? .................................................................................... 38

(n) How do I bring the Board’s attention to a matter after the briefing schedule has

closed? .........................................................................................................................

38

5.5 Motions for Reconsideration, Rehearing, or Reopening the Record .......................... 39

(a) How do I request a rehearing, reopening of the record, or reconsideration of a

Board decision? ............................................................................................................ 39

(b) How do I request that the Board clarify its decision? ...................................................... 39

(c) If I lost my case before a Board panel, can I request consideration by the full

Board? .......................................................................................................................... 39

5.6 Court Review of Board Decisions ................................................................................. 40

(a) Can I obtain court review of the Board’s decision? ......................................................... 40

(b) Can I obtain a stay of the Board’s decision until I file a request for reconsideration

with the Board or a request for review with a United States court of appeals? ............... 40

(c) What happens if a court of appeals remands a case to the Board? ................................ 40

6. Settlements ......................................................................................................................... 41

(a) Can I settle my case after the Administrative Law Judge has issued a decision

and the case has been transferred to the Board? .......................................................... 41

(b) What must I file if a case pending before the Board has settled? .................................... 41

(c) Can I settle my case after the Board has issued a decision? .......................................... 42

(d) Will the Board vacate a judge’s or Board decision as part of a settlement? .................... 42

7. Compliance Proceedings ................................................................................................... 43

(a) How do I obtain review of a Regional Director’s compliance determination? ................... 43

(b) How do I obtain review of an Administrative Law Judge’s decision on a

compliance matter? ....................................................................................................... 43

8. Advisory Opinions and Declaratory Orders ...................................................................... 43

(a) Does the Board provide advisory opinions? ................................................................... 43

(b) Does the Board provide declaratory orders? .................................................................. 44

9. Prohibited Ex Parte Communications .............................................................................. 44

(a) What is a prohibited ex parte communication? ............................................................... 44

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(b) How does the Board enforce prohibitions on ex parte communications? ........................ 45

(c) How do I report a prohibited ex parte communication? ................................................... 45

10. Misconduct by an Attorney or Other Representative .................................................. 45

(a) How do I report misconduct of an attorney or representative in a Board

proceeding and what action will the Board take after receiving my report? ..................... 45

11. Equal Access to Justice Act (EAJA) Filings ................................................................. 46

(a) How do I know if I am eligible for an award of fees and expenses under EAJA?............. 46

(b) How do I apply for an award of fees and expenses? ...................................................... 46

(c) How is my application processed? ................................................................................. 47

(d) Is my net worth exhibit disclosable to the public? ........................................................... 47

(e) If I file a motion to withhold disclosure of the net worth exhibit, must I serve the

exhibit on all parties? ..................................................................................................... 48

(f) If the Judge grants my motion, can I assume the net worth exhibit will never be

disclosed? ..................................................................................................................... 48

(g) Can I file a motion to withhold disclosure of my exhibit documenting the fees and

expenses? .................................................................................................................... 48

(h) Can I obtain an extension to file the application? ........................................................... 48

(i) Is there a limitation on the fees I may claim? ................................................................. 48

(j) Will the Board decide my petition for fees before the judge issues a decision on

my application? ............................................................................................................. 48

(k) What can be filed with the Board following issuance of the judge’s decision on

my application? ............................................................................................................. 49

APPENDIX A .................................................................................................... 50

CHECKLIST FOR PREPARATION OF EXCEPTIONS, CROSS-EXCEPTIONS, AND

BRIEFS IN UNFAIR LABOR PRACTICE CASES ........................................................... 50

I. EXCEPTIONS, CROSS-EXCEPTIONS, AND SUPPORTING BRIEFS ............................. 50

II. SERVICE ON OTHER PARTIES ..................................................................................... 52

III. ANSWERING BRIEFS ..................................................................................................... 53

IV. REPLY BRIEFS ............................................................................................................... 53

APPENDIX B .................................................................................................... 55

QUICK REFERENCE GUIDE FOR......................................................................................... 55

UNFAIR LABOR PRACTICE FILINGS .................................................................................. 55

APPENDIX C .................................................................................................... 58

AVOIDING PROBLEMS ........................................................................................................ 58

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1.

Introduction

1.1

Purpose

This Guide describes procedures, requirements, and recommendations for practice

before the National Labor Relations Board. It is provided for the information and

convenience of the general public and for parties and their representatives who

appear before the Board.

1.2

Disclaimer

This guide does not carry the weight of law or regulation. It is neither intended, nor

should it be construed in any way, as legal advice. It also does not extend or limit

the jurisdiction of the Board as established by law and regulation. Parties with

business before the Board are strongly encouraged to consult the Board’s Rules

and Regulations prior to taking any action on a case.

1.3

Revisions

The Office of the Executive Secretary reserves the right to amend or revoke the

text of this guide at its discretion.

2.

The Board

2.1

Function, Jurisdiction, and Authority

The National Labor Relations Board is an independent federal agency created by

Congress in 1935 to administer the National Labor Relations Act, the primary law

governing labor-management relations in the private sector. The statute

guarantees employees the rights to organize, form or join unions, and bargain

collectively with their employers; to engage in other protected concerted activity

concerning workplace issues, with or without a union; and to refrain from all such

activity.

The Board’s mission is to enforce those rights. To that end, the Board’s General

Counsel, through the Board’s regional offices, conducts elections for employees to

decide whether they will have union representation, and investigates and

prosecutes alleged unlawful acts, called unfair labor practices, by employers,

unions, or both. The 5-member Board itself serves as an appellate body, reviewing

decisions of Regional Directors and Hearing Officers in representation cases, and

of Administrative Law Judges in unfair labor practice cases.

This Guide DOES NOT provide guidance for practice before the Board’s

regional offices, the General Counsel, or the Division of Judges.

2

This Practitioner’s Guide is for parties who are practicing before the Board itself.

Parties with business before the Board’s regional offices, the General Counsel, or

the Division of Judges should consult the Board’s website (www.nlrb.gov) for

guidance concerning filing documents with those offices.

2.2

Location and Hours of Operation

The Board’s main administrative offices are located at 1015 Half Street, S.E.,

Washington, D.C., 20570. Hours of operation are 8:30 a.m. until 5 p.m. Eastern

Time, Monday through Friday. The office is closed on Saturdays and Sundays and

on the following federal holidays:

• New Year’s Day

• Martin Luther King, Jr. Day

• Presidents Day

• Memorial Day

• Juneteenth

• Independence Day

• Labor Day

• Columbus Day

• Veteran’s Day

• Thanksgiving Day

• Christmas Day

3.

Common to All Cases

3.1

Filing with the Board

(a)

Do I need an attorney or a legal representative?

No. There is no requirement that you be represented by an attorney or have other

representation for any matter before the Board. The Board, however, expects that

you will follow all applicable rules and regulations in all filings. Thus, parties may

find it beneficial to have a legal representative who is familiar with the Board’s

procedures and rules.

(b)

How do I designate a representative or notify the Board of a change

of counsel or representative?

Ideally, such a notification should be filed by a party. A party that retains or

changes its counsel or representative when the case is pending before the Board

must either file a Form NLRB 4701, obtainable from the NLRB’s public website

(https://www.nlrb.gov/resources/forms), or submit a letter to the Board’s Executive

Secretary that includes the party’s name, title and address; the case name and

number; and the name, address (street and e-mail), and facsimile and telephone

numbers of the new attorney or representative. Sign and date the form or letter

and serve it on all parties and, if applicable, on the attorney or representative that

is being replaced. (Addresses of the parties can be obtained by telephoning the

Executive Secretary’s Office at (202) 273-1940). Enclose a certificate of service

with the form or letter you file with the Board.

3

The form or letter may be filed by the new attorney if the above information is

included. The certificate of service should reflect that a copy was sent to the client

and, if applicable, the attorney or representative being replaced.

Either the party or the attorney or representative should notify the Board if it has

severed its relationship with its representative or client as the case may be.

Indicate the date the representative’s services ceased if it is different from the date

of the letter. Serve all parties, including the client or attorney, as the case may

be.

3.2

Methods of Filing

(a)

How do I file documents with the Board?

Documents generally must be E-Filed using the Board’s website

(http://www.nlrb.gov). Some items can be filed by facsimile (unfair labor practice

charges, petitions in representation cases, objections to elections, and requests for

extension of time), but others may not. Otherwise, documents may be filed by

personal hand delivery, private delivery service, or regular mail only if the filer

does not have access to the means for filing electronically or filing electronically

would impose an undue burden. Documents cannot be filed by e-mail.

(b)

What do I need to know about each method of filing?

(1)

E-filing using the Board’s website: Required Method for Most Filings

In order to file documents electronically, access the Agency’s website at

http://www.nlrb.gov, then click on the ”E-File Case Documents” link under the

“CASE RELATED LINKS” heading on the main page. Please read the E-File

Terms and Conditions prior to e-filing the case documents.

Any document may be filed electronically provided that it is no more than 20

megabytes in size. Most video files are not accepted via E-filing, and must be mailed or

hand-delivered to the NLRB’s Office of the Executive Secretary.

E-FILINGS MUST BE TIMELY. E-filings must be received by the Board by 11:59

p.m. Eastern Time on the due date in order to be considered timely. Be aware that

a failure to timely E-File a document will not be excused on the basis of a claim that

transmission could not be accomplished because of technical or other problems on

the user’s end.

All filings, whether submitted by e-filing, facsimile, personal hand delivery,

private delivery service, or regular mail must be accompanied by a statement

of service on the other parties. See Section 5 for information regarding

service on other parties, statements of service, and proof of service.

4

Authority: Rule 102.5(c).

(2)

Facsimile

Requests for extensions of time may be filed with the Board by facsimile

transmission without advance permission of the Executive Secretary, or may be

E-Filed.

Authority: Rule 102.5(e).

(3)

Personal hand delivery, private delivery service, and regular mail.

If a document is permitted to be filed by personal hand delivery, private delivery

service, or regular mail, the document should be filed with the Board’s Office of the

Executive Secretary at the address set forth below, during the Board’s normal

operating hours.

Executive Secretary

National Labor Relations Board

1015 Half Street, SE

Washington, D.C. 20570

Caution: Misaddressing documents intended for the Board is a frequent problem.

Practitioners often inadvertently send Board filings to the General Counsel’s Office

of Appeals, the Division of Judges (or the Administrative Law Judge assigned to the

case), the Regional Director, or the Board, itself, rather than to the Executive

Secretary of the Board. Because prior filings had been sent to the Judge or

Regional Director, the practitioner may consider “the Board” in the generic sense

and mail a filing to the Judge or Regional Director that is intended for the Board.

Although the Office of Appeals, Division of Judges, and regional offices usually

recognize when a document they receive is intended to be filed with the Board and

refer it to the Office of the Executive Secretary, you should not rely on them to

correct this mistake.

Filings by personal hand delivery must arrive before 5:00 p.m. Eastern Time on the

due date in order to be considered timely. The Board will also accept as timely

most documents that are postmarked on the day before (or earlier than) the due

date. “Postmarking” includes depositing the document in the regular mail (United

If a party is unable to file electronically, the party must accompany the filing

with a statement explaining why the party does not have access to the

means for filing electronically or why filing electronically would impose an

undue burden.

A failure to timely file or serve a document will not be excused on the basis

of a claim that facsimile transmission could not be accomplished because

the receiving machine was off-line or unavailable for any other reason.

5

States Postal Service) or with a private delivery service that will provide a record

showing that the document was deposited with that service in sufficient time for

delivery by the due date (but in no event later than the day before the due date).

Authority: Rule 102.2(b).

(c)

How do I determine if the Board received my filing?

If you file electronically using the website, the Board’s e-filing system generates a

confirmation number. Please print and keep this confirmation number for your

records. If you file by facsimile, be sure your own facsimile machine is capable of

printing a report of the date and time and whether the transmission was successful.

If you use a messenger for personal hand delivery, be sure the messenger asks

the individual to whom he/she gives the document for a receipt. If you use the

United States Postal Service or a private delivery service, choose the type of

service that provides a return receipt or record of delivery.

Regardless of the method you choose, you may telephone the Executive

Secretary’s Office to confirm receipt within a reasonable time after the documents

are sent. Allow sufficient time, however, to make other delivery arrangements in

case the document has not been received.

3.3

Due Dates and Extensions

(a)

What is the Board’s definition of a due date or deadline for a filing?

The due date is the date on which the filing must arrive at the Board. E-Filings

must be received by the Board before 11:59 p.m. Eastern Time on the due date in

order to be considered timely. The Board accepts as timely any document that is

hand delivered to the Executive Secretary’s Office on or before 5:00 p.m. Eastern

Time on the due date. Filings allowed by facsimile must be received before 5:00

p.m. Eastern Time on the due date in order to be considered timely.

Authority: Rule 102.2(b) and 102.5(c).

(b)

How are due dates determined?

Some documents, e.g., orders to show cause, transfer orders, and grants of

extensions, contain the specific date a document is due. For others, e.g.,

answering and reply briefs and certain oppositions, you must compute deadlines in

accordance with the Board’s Rules.

The following documents must be received by the Board on or before 5:00

p.m. Eastern Time on the due date: charges filed pursuant to Section 10(b)

of the Act, requests for extensions of time to file any document, petitions to

revoke subpoenas, and applications for awards and fees and expenses

under EAJA.

6

With respect to deadlines that you must compute, first determine the due date of

the document to which you will be responding (the “initiating document”), and, from

that date, check the number of days the Rules provide for responding to that

initiating document. When calculating the due date from that time period, do not

start counting from the due date of the initiating document but rather the following

day. Do not count the day of the act from which the time runs. The first day

following issuance or service of the initiating document is day one, even if it falls on

a weekend or holiday. The last day of the time limit is included, unless it falls on a

weekend or holiday. For example, if you desire to file an answering brief to another

party’s exceptions brief, the due date begins to run from the last due date for filing

of the exceptions. The next day following that due date is day one. Since

answering briefs are due under the Rules within 14 days from the last day

exceptions can be filed, the 14

th

day thereafter is the due date.

Most due dates are in multiples of 7 except for the due date for a petition to revoke

a subpoena. See Section 102.2(a) of the Board’s Rules. Most due dates do not

fall on weekends, but may fall on a holiday, in which case the document is due the

next business day. The terms “business day” means days that Agency offices are

open normal business operating hours, which is Monday through Friday, excluding

Federal holidays. Be aware that the Board does not add additional days when the

initiating document was served on you by mail. If your receipt of a document is

substantially delayed, consider filing a request for an extension of time to respond.

If you are responding to a Judge’s decision or Board notice to show cause, the

clock starts on the date those documents were placed in the mail or the date an e-

mail with a link to the decision was sent to you. That usually coincides with the

date on the document.

The computation of some due dates requires you to count backwards from a

certain date or event, in the same manner as described above. Thus, if you wish

to file a motion to dismiss, pursuant to Section 102.24 of the Board’s Rules, it is

due no later than 28 days prior to the scheduled hearing (in most situations).

You can determine the due date for the motion by counting 28 days backwards

from the scheduled hearing date. Do not count the hearing date. The day before

the hearing date is day one. The 28

th

day prior is the last date before the hearing

that you may file the motion.

Be aware that the date you received the initiating document is irrelevant for

counting purposes. All due dates run from the due date of the document to

which you will respond, not the date you received it. If you will be

responding to a document filed early, your response time still starts to run

from that document’s due date, not the earlier date on which it was filed.

With respect to unfair labor practice cases, if the due date for the filing of

exceptions in the transfer order was inadvertently computed as less than the

28 days allowed, bring it to the Office of the Executive Secretary’s attention

7

Authority: Rule 102.24(b-c).

(c)

What kind of due dates can be extended?

All Board filing deadlines can be extended for a reasonable period except the

deadline for filing an EAJA application, which is established by statute, and for filing

a reply brief. (The deadlines for filing unfair labor practice charges pursuant to

Section 10(b) of the Act and petitions to revoke subpoenas also are statutory, but

those are ordinarily filed with the Regional Director or the Administrative Law Judge

rather than the Board, and are therefore outside the scope of this Guide.) Repeat

requests for extensions will generally not be granted, especially if the prior

extension was granted with the condition that no further extensions will be granted.

Also, be aware that an extension of time to file a request for review of a decision

and direction of election or an opposition to the request may be limited to only a

few days.

(d)

How do I obtain an extension of time?

Those seeking an extension of time should always provide a specific reason for the

request and must serve the request on all other parties. Parties are encouraged to

seek agreement from the other parties for the extension, and to indicate the other

parties’ position in the extension request. The Executive Secretary’s Office may

wait only a few days (or less) before ruling on such requests to afford other parties

an opportunity to file an opposition, so any opposition should be filed promptly.

The Board may grant the entire amount sought, grant part of the time sought, or

deny the request. If filed prior to 3 days before the due date, requests for

reasonable extensions will be granted because of the nature of the issues involved

and the amount of other work the practitioner is handling, conflicting court dates,

and other prescheduled matters occurring within the briefing period. If an unusually

long extension is sought, it may be granted under the condition that no further

extensions will be granted or denied. Parties should be mindful, however, that the

Board considers its cases to be important and they should take priority over many

other matters. Whether an injunction has been granted and/or whether there is an

ongoing strike or picketing are important considerations in limiting or denying an

extension.

Authority: Rule 102.2(c).

(e)

When should I file my extension of time request?

File the request as soon as you know that you need additional time. The Rules

allow for the filing of extension requests up to and including the due date for the

filing of the document for which you seek additional time, but waiting to file a

request may become problematic. Requests filed within 3 days of the due date

to issue a correction. If the incorrect date is longer than 28 days, however,

the Board adheres to the longer date and does not issue a correction.

8

must be grounded on circumstances not reasonably foreseeable in advance. For

instance, requests within 3 days of the due date based on the press of other work,

vacation, trial appearances, or other reasons that do not appear to be unforeseen,

will be denied.

There are two exceptions to this 3-day rule: (1) where all parties agree on the

extension – (this is the only Rule that the Board allows the other parties to waive);

and (2) where the delayed filing is based on excusable neglect.

Authority: Rule 102.2(c) and (d).

(f)

Do I share the extension of time granted to another party?

It depends. An extension granted to one party affords the same extension to all

parties who are eligible to file the same type of document. For instance, if you are

filing an answering brief and another party is granted an extension for filing an

answering brief, that extension also applies to you. But an extension to file one

document does not extend the time to file a different document, even for the same

party. For example, the grant of an extension for filing an answering brief does not

extend the time for filing cross-exceptions by any party. An exception exists when

a party is granted an extension for filing cross-exceptions: that party automatically

receives the same extension for filing an answering brief, and therefore so do all

other parties who are eligible to file cross-exceptions and/or answering briefs. See

P&M Cedar Products, 282 NLRB 772 (1987).

Extensions also affect the due dates for responsive documents. An extension to

file exceptions, for example, will affect the due date for answering briefs, which are

due 14 days after the due date for the filing of exceptions, and the filing of replies,

which are due 14 days after the due date for the filing of answering briefs.

3.4

Late Filings

(a)

Are there any allowances for late filings?

A late document will be allowed if the other party’s initiating document that began

the time period for filing was served on the other parties in a slower manner than

that utilized to file with the Board. Unlike some courts, however, the Board does

not automatically allow an additional 3 days if the initiating document was filed by

mail or was E-Filed.

The Board may also allow a late document under its excusable neglect rule.

Authority: Rule 102.2(b).

(b)

How do I obtain permission to file a late document under the Board’s

9

excusable neglect rule?

File the late document along with a motion that states the grounds relied on for

requesting permission to file untimely.

In determining whether neglect is excusable, the Board takes into account all

relevant circumstances, including: any prejudice to the non-moving party; the

length of the delay and its potential impact on judicial proceedings; the reason for

the delay, including whether it was within the reasonable control of the movant; and

whether the movant acted in good faith. The Board currently places the greatest

weight on the reasons for the delay. In this regard, “inadvertence, ignorance of the

rules, or mistakes construing the rules do not usually constitute ‘excusable’

neglect.” Id. at 427. Thus, inattentiveness or carelessness, absent other

circumstances or further explanation, will not excuse a late filing.

Authority: Rule 102.2(d).

3.5

Service on Other Parties, Statement of Service, and Proof of Service

(a)

Am I required to serve my filings on other parties?

Yes. Documents must be served on all other parties in the same manner that

they were filed with the Board, or faster, with the following exceptions.

• When filing with the Board is accomplished by e-filing, the other parties must

be served by electronic mail (email), if possible. If a party to be served does

not have the ability to receive electronic service, that party must be notified by

telephone of the substance of the transmitted document and a copy of the

document must be served by personal service no later than the next day, by

overnight delivery service, or, with the permission of the party receiving the

document, by facsimile transmission.

• When filing with the Board is accomplished by hand delivery, the other parties

must be promptly notified by telephone and served in a manner designed to

insure receipt by the close of the next business day (e.g., personal service,

overnight delivery service or, with the permission of the party receiving the

document, facsimile transmission).

• When filing with the Board is accomplished by facsimile transmission, the

same method must be used to serve other parties whenever possible. The

consent of the party receiving the document must be obtained prior to service

The specific facts relied on to support the motion must be set forth in an

affidavit and sworn to by individuals with personal knowledge of the facts.

International Union of Elevator Constructors, Local No. 2 (Unitec Elevator

Services Company), 337 NLRB 426 (2002). It would be prudent if the affidavit

was submitted by someone with direct knowledge of the facts.

10

by facsimile transmission. When a party cannot be served by facsimile, or

chooses not to accept service by facsimile, the party must be notified

personally or by telephone of the filing and a copy of the document must be

served by personal service or overnight delivery service.

• In addition, all filings in representation cases must be served on the Regional

Director.

• Individual Charging Parties in unfair labor practice cases must always be

served.

Authority: Rule 102.5(f).

(b)

Am I required to provide a statement of service and/or proof of service?

Yes. All filings must be accompanied by a statement of service on other parties.

The statement of service must specify the name or title of all parties served, the

date of service, and the means of service (i.e., hand delivery, private delivery

service, regular mail, e-filing, or facsimile). In representation cases, service on the

Regional Director should be reflected on the certificate of service.

It is also helpful if you include in your certificate of service the addresses of the

parties you served and the date and manner that the document was transmitted to

or filed with the Board.

Proof of service (e.g., return post office receipt or private delivery service receipt)

will be required only if, subsequent to the receipt of the statement of service, a

question is raised with respect to proper service.

Authority: Rule 102.5(f), (g), and (h).

3.6

Format and Length

(a)

Does the Board require a specific format for filings?

Yes. Documents must be typed on 8 ½” by 11” plain white paper. Margins must

be no less than 1” on all sides. Type should be no smaller than 12 point, in both

text and footnotes. Documents should be double-spaced, except that quotations

and footnotes may be single spaced. Briefs that exceed 20 pages must contain a

subject index (or table of contents) with page references and an alphabetical table

of cases and other authorities cited. There is no requirement for special binding.

The Executive Secretary’s Office always assures that the document is within the

page limit before accepting it. The Board has the discretion to reject any document

that is not properly formatted. Its current policy, however, is to provide the non-

complying party an opportunity to resubmit a correctly formatted document.

Authority: Rule 102.5(a).

11

(b)

Are there limitations on the length of my filing?

Yes. Unless a request for additional pages is granted, all documents, except for

reply briefs, motions filed under Section 102.24, and Reliant (i.e., supplemental

authority) submissions, discussed below, are limited to 50 pages. Parties are

advised to start planning or outlining their briefs early because any request for

additional pages must be received no later than 10 days before the document is

due. In representation cases, a motion to exceed the page limit must be filed not

less than 10 days prior to the date the document is due. The Executive

Secretary’s Office always assures that the document is within the page limit

before accepting it.

Authority: Rules 102.5(b); 102.46(e) and (h); 102.67(f), (h), and (i)(1); 102.71(d)

Reliant Energy, 339 NLRB 66 (2003).

(c)

How do I obtain permission to exceed the 50-page limit?

A motion requesting permission to exceed the page limitation must be filed with the

Board not less than 10 days before the brief’s due date and must set forth the

reasons supporting the request. In representation cases, a motion to exceed the

page limit must be filed no later than the date on which the document is due.

The Board is reluctant to grant additional pages unless you demonstrate that you

are briefing an extraordinary case based on the complexity, novelty, or national

impact of the issues involved. That the case involves numerous issues may not be

sufficient, but is considered. Likewise, the length of the Judge’s, Regional

Director’s or Hearing Officer’s decision and the number of days of hearing will be

considered, but are not dispositive. The length of the briefs to the Judge, Regional

Director, or Hearing Officer is usually given little weight because as the case

progresses to the Board and the issues become more refined, it is assumed the

briefs should become shorter, not longer.

Authority: Rules 102.5(b) and 102.67(i)(1).

(d)

Does the permission for additional pages obtained by one party automatically

extend to another party?

No, you must file your own request, unless the original request was submitted on

your, as well as the submitter’s, behalf. It is assumed that not all parties have the

same need for additional pages.

Reply briefs are limited to 10 pages and no additional pages will be allowed

for them under any circumstances. Reliant submissions and responses to

them are limited to 350 words, about 1 ½ pages. In representation cases,

reply briefs may not be filed except upon special leave of the Board.

12

3.7

Case Information

(a) How do I obtain information about the status of a case?

You may call the Executive Secretary’s Office when you desire to know the status

of a case pending before the Board. The telephone number is (202) 273- 1940.

Such a request is not a prohibited ex parte communication. Generally, however,

the case status information provided by the Executive Secretary’s Office is limited

to the stage the case is in.

Given the volume and the varying complexity of the cases before the Board, the

Executive Secretary’s Office cannot predict processing times. If you have

registered for E-Service (which is highly recommended), you will be notified by e-

mail on the same day that the Board issues its decision. To sign up for E-Service,

please see Section 3.8(e) below.

The Executive Secretary’s Office will not reveal the panel assigned to a pending

case or the votes of the Board members.

You may also obtain case status information, including whether any rulings or

decisions have been issued and whether any motions or pleadings have been filed,

on the Board’s Internet website (http://www.nlrb.gov).

3.8

The Board’s Decision

(a)

Will the full Board decide my case?

Not usually. To expedite case handling, the Board, pursuant to Section 3(b) of the

Act, ordinarily decides cases through the use of five three-member panels with

each Board Member acting as head of one panel. Each panel considers and

decides the cases assigned to the member who is head of the panel. In some

cases, the panel may direct that the case be discussed and decided by a full

complement of the Board. A Board member, however, may participate in any case

regardless of the panel assignment. Every Board member reviews every decision

before it issues unless the Board member is recused in the case.

(b)

Will I have an opportunity for oral argument before the Board?

Not usually. The Board rarely allows oral argument. Any request for oral argument

should be filed when you file exceptions (or cross-exceptions).

The Board, however, has the discretion to hold oral argument at any time on any

case or motion, and will provide an official Notice of Oral Argument when it so

decides.

Authority: Rules 102.46(g) and 102.67(h).

13

(c)

May the Board itself decide my case in the first instance rather having it

ruled on by a Hearing Officer, Regional Director, or Administrative Law

Judge?

In order to effectuate the purposes of the Act and to avoid unnecessary costs or

delay, the Board on its own motion may transfer a case to itself, or any of its

members, following issuance of a complaint, to hear and decide a case in place of

an Administrative Law Judge. The Board has not exercised this prerogative in

many years.

Under Rule 10.235(a)(9), parties may agree to waive a hearing and decision by the

Administrative Law Judge and submit directly to the Office of the Executive

Secretary a stipulation of facts, which if approved, provides the record based on

which the Board will issue its decision. A statement of the issues presented may

be set forth in the stipulation of facts, and each party may also submit a short

statement (no more than three pages) of its position on the issues. If the Board

approves the stipulation, the Board will set a time for the filing of briefs. In

proceedings before the Board, answering briefs may be filed within 14 days, or

such further period as the Board may allow, from the last date on which an initial

brief may be filed. No further briefs may be filed except by special leave of the

Board. Motions to waive a hearing and to issue a decision based on a stipulation

of facts may also be filed with the Administrative Law Judge. This may in certain

circumstances provide for a speedier resolution of the case than filing the motion

with the Board.

Authority: Rule 102.35(a)(9).

(d)

Can a party move the Board to expedite its decision?

The Rules do not prohibit such motions. The Board recognizes, however, that

most parties feel their cases are special and warrant prompt attention. The Board

is also well aware that labor disputes are disruptive to the workplace, frequently

divide the work force, and affect productivity and future planning. Pursuant to

Section 10(m) of the Act, the Board must give priority to cases involving secondary

boycotts, recognitional strikes, injunctions, and those alleging violations of Section

8(a)(3) and 8(b)(2) of the Act. In this regard, any of the parties may bring to the

Office of the Executive Secretary information of this nature that might affect the

Board’s prioritization of the case.

(e)

How will I be notified of the Board’s decision?

The Board serves its “published” decisions on the parties in one of two ways. On

the day the Board decision issues, an e-mail notification containing a link to the

decision will be sent to those who have signed up for E-Service.

14

If you are not signed up for E-Service, you will receive a copy of the decision by

mail. Representatives and attorneys are sent a copy of the decision by certified

mail and regular mail. A party that has a representative or attorney will receive a

copy by regular mail. A party that is unrepresented will receive a copy by both

certified and regular mail.

In situations where a party has been represented by different counsels or

representatives at various stages of the case, please be aware that the Board will

serve its documents and decisions (E-Service or certified or regular mail) on the

current representative of record. It is the responsibility of the party and any new

counsel to notify the Office of the Executive Secretary of any change in counsel.

Service will be made only to the party and the last attorney of record.

You will receive Board unpublished decisions by electronic mail or mail. Board

decisions that, in the absence of exceptions, adopt the Judge’s decision are served

on the parties and their representatives by E-Service, or regular and certified mail

as noted above.

Authority: Rule 102.4 and Section 11(4) National Labor Relations Act.

(f)

What decisions does the Board publish in its bound volumes?

The Board includes in its bound volumes decisions and orders on exceptions to

Administrative Law Judges’ decisions. The Board does not usually include in its

bound volumes decisions and orders in representation cases, orders remanding to

an Administrative Law Judge, or orders ruling on requests for review, motions,

interlocutory appeals, or petitions to revoke subpoenas. Decisions and orders on

motions for summary judgment are included in the Board’s slip opinions but not

usually in the bound volumes. The Board has the discretion, however, to publish

any of its decisions or orders.

Parties should be aware that a vacatur of a Board decision will be published.

Vacaturs of Judges’ decisions are unpublished. Further, the Board is not

responsible for the handling of vacaturs by commercial services like Westlaw.

Thus, although a decision may be vacated, it may still be available for viewing by

subscribers of commercial services.

Finally, vacated decisions that are based on a settlement retain their precedential

value regarding the legal holding of the decision. They may continue to be cited by

practitioners in this regard. See, e.g., Caterpillar, Inc., 332 NLRB 1116 (2000).

Enrollment in E-Service is voluntary, but strongly encouraged by the Board.

To enroll, visit www.nlrb.gov and click on “Sign up for E-Service” under the

heading “Case Related Links” on the right-hand side of the web page. If you

opt for E-Service, you agree that service of the decision is the date the Board

sends you the e-mail notification that the decision has issued.

15

(g)

Can I move the Board to publish the decision in my case?

Motions to publish otherwise unpublished Board decisions or orders are permitted.

Whether or not a Board decision, order, or ruling is included in the bound volumes

is within the Board’s sole discretion.

4.

Representation Cases

4.1

Delegation

Most representation matters have been delegated to Regional Directors. Parties

may raise issues with the Board by filing motions and requests for review as

provided by Section 102.65 through 102.71 of the Rules.

4.2

Motions and Requests

(a)

When can I file a motion or request for review with the Board?

Motions, including motions to intervene, may be filed with the Board only when the

case is pending before the Board or after it has been transferred to the Board.

Earlier in the case, motions should be filed with either the Regional Director or the

Hearing Officer. The Regional Director’s ruling on a motion may be appealed to

the Board by filing a request for review. Requests for review of Regional Director

actions in a representation case may be filed at any time following the action until

10 business days after a final disposition of the proceeding by the Regional

Director.

Authority: Rules 102.65 and 102.67(c)

(b)

Can I file a Motion to Intervene with the Board?

Motions to Intervene should be filed with the Regional Director prior to the pre-

election hearing or with the Hearing Officer after the hearing has opened. A

Regional Director’s ruling on a motion to intervene may be appealed as part of a

request for review as noted in (a) above.

Authority: Rule 102.65(a - b).

4.3

Requests for Special Permission to Appeal

(a)

When can I file a request for special permission to appeal a Hearing Officer’s

ruling?

Rulings by the Hearing Officer are not directly appealable, but the aggrieved party

16

may file a request for special permission to appeal with the Regional Director, who

will consider the request when reviewing the entire record. A party may seek

review of the Regional Director’s ruling by filing a request for review with the

Board.

Authority: Rule 102.65(c).

(b)

When should my request for special permission to appeal be filed?

The Rules say that requests to the Regional Director for special permission to

appeal from a ruling of the Hearing Officer, together with the appeal from such

ruling, shall be filed “promptly,” but do not specify a definite time period.

Authority: Rules 102.65(c).

(c)

Will my request for special permission to appeal stay the hearing or election?

No. The Board’s Rules state that neither the filing nor the grant of a request for

special permission to appeal will stay the proceedings (unless otherwise ordered

by the Regional Director).

Authority: Rule 102.65(c).

(d)

What must I include in my request for special permission to appeal?

The request must be filed with the Regional Director and include the reasons

permission should be granted and the grounds relied on for the appeal. The

request must also include a certificate that the other parties were served with the

request.

Authority: Rules 102.65(c); 102.78; 102.80(c).

(e)

Can other parties file a response to the request for special permission

to appeal?

Yes. The response should be filed with the Regional Director promptly and include

a certificate reflecting service on the other parties.

Authority: Rule 102.65(c).

4.4

Subpoenas

(a) Can I appeal an adverse ruling by the Regional Director or the Hearing

Officer on a subpoena?

Although not explicitly set out in the provision governing subpoenas in

17

representation cases, as discussed in 4.3(a), a party may file a request for special

permission to appeal a hearing officer’s rulings with the Regional Director. Any

action by a Regional Director may be appealed to the Board in a request for review.

Authority: Rule 102.66(f).

4.5

Pre-Hearing Dismissals Unrelated to Pending Unfair Labor

Practices

(a)

How do I appeal the Regional Director’s pre-hearing administrative

dismissal of the petition?

If the dismissal is unrelated to any pending unfair labor practice, a request for

review may be filed within 10 business days of service of the notice of dismissal. A

response may be filed within 5 business days after the last day on which the

request for review may be filed.

Authority: Rule 102.71.

(b)

What do I have to show for the Board to reverse the Regional Director’s

decision to dismiss a petition?

A request for review of the Regional Director’s action may be granted only upon

one or more of the following grounds:

(1)

That a substantial question of law or policy is raised because of (i) the

absence of, or (ii) a departure from, officially reported Board precedent.

(2)

There are compelling reasons for reconsideration of an important Board

rule or policy.

(3)

The request for review is accompanied by documentary evidence

previously submitted to the Regional Director raising serious doubts as

to the Regional Director’s factual findings, thus indicating that there are

factual issues which can best be resolved upon the basis of the record

developed at a hearing.

(4)

The Regional Director’s action is, on its face, arbitrary or capricious.

(5)

The petition raises issues which can best be resolved upon the basis

of a record developed at a hearing.

Authority: Rule 102.71.

4.6

Pre-Hearing Dismissals, or Decisions to Impound Ballots or

Delay Certifications, Based on Pending Unfair Labor Practice

Charges

18

(a)

What do I file if the Regional Director dismisses a petition or directs

that the proceeding on the petition be held in abeyance, including

impounding ballots or delaying a certification, and this action is taken

because of the pendency of concurrent unresolved unfair labor

practice charges?

File a request for review within 10 business days of service of the notice of

dismissal or abeyance, including impoundment or certification delay.

Authority: Rules 102.71(b) and (c); 103.20.

(b)

What do I have to show for the Board to reverse the Regional Director?

You must include a complete statement of the facts and reasons upon which the

request is based including at least one of the following:

(1)

The absence of, or departure from, officially reported Board precedent

raises a substantial question of law or policy.

(2)

Existence of compelling reasons for reconsideration of an important

Board rule or policy.

(3)

A demonstration that the Director’s action is arbitrary or capricious on its

face.

Authority: Rule 102.71(b).

4.7

Decisions to Continue Processing a Petition, Including Counting

Ballots or Issuing a Certification, Despite Pending Concurrent

Unresolved Charges of Unfair Labor Practices

(a) How do I appeal the Regional Director’s decision to continue to process the

petition, including counting the ballots or issuing a certification, despite the

existence of pending concurrent unresolved charges of unfair labor

practices?

File a request for review with the Board.

4.8

Rehearing, Reopening of the Record, or Reconsideration

of Regional Director’s or Board Decision

(a)

When must I file my motion for rehearing, reopening the record,

or reconsideration?

Section 102.65(e)(2) of the Rules provides that a party shall file for reconsideration

or rehearing within 10 business days after service of a Regional Director’s decision

19

or report or after a Board decision or order. A motion to reopen the record shall be

filed promptly on discovery of the evidence sought to be adduced.

(b)

Can I receive an extension of time for the filing of my motion?

Yes. You can request that the Board grant an extension of time to file a motion for

rehearing or reconsideration.

Authority: Rule 102.2(c).

(c)

What must I demonstrate in my motion for rehearing, reopening the record

or reconsideration?

All such motions must demonstrate that extraordinary circumstances require

granting the motion. In addition, a motion for rehearing or to reopen the record

must specify the error alleged to require a rehearing or hearing de novo; the

prejudice to the movant resulting from the error; the additional evidence sought to

be adduced; why it was not produced previously; and what result it would require if

adduced and credited. Such a motion will be granted only if the evidence is either

newly discovered, became available only after the close of the hearing, or in the

Board’s opinion should have been taken at the hearing. Newly discovered

evidence is evidence in existence at the time of the hearing which could not be

discovered at that time by the exercise of reasonable diligence. Point Park

University, 344 NLRB 275, 276 (2005). A motion for reconsideration, in addition to

extraordinary circumstances, shall state with particularity the material error claimed,

and shall specify the page of the record relied on with respect to any finding of

material fact.

Authority: Rule 102.65(e)(1).

(d)

Can I move for reconsideration, rehearing, or reopening the record

because I forgot to raise an issue, place a document in evidence, or call an

important witness?

No. These do not constitute extraordinary circumstances.

(e)

Will the filing of any of these motions alone automatically stay further

proceedings?

No. Filing of any of these motions will not stay further proceedings, including the

time for filing a request for review of a decision or exceptions to a report. Nor will

they stay the effectiveness of any action taken or directed to be taken. However, if

a motion states with particularity that the granting of the motion will affect the

eligibility to vote of specific employees, their votes in any election will be challenged

and impounded while the motion is pending.

20

Authority: Rule 102.65(e)(3).

4.10

The Regional Director’s Pre-Election Decision or Order Following

a Hearing.

(a)

When may I appeal the Regional Director’s Decision and Direction of Election

or Order based on a record developed at a hearing?

A request for review may be filed at any time up to 10 business days after a final

disposition of the proceeding by a Regional Director. A final disposition occurs

when the Regional Director dismisses the petition or issues a certification of

representative or certification of election results.

A party may combine a request for review of the Regional Director’s decision and

direction of election with a request for review of a Regional Director’s post-election

decision, if the party has not previously filed a request for review of the pre-

election decision. A party may not, however, file more than one request for review

of a particular action or decision by the Regional Director. Repetitive requests will

not be considered.

Authority: Rule 102.67(c) and (i).

(b)

Will the filing of a request for review stay the election?

No, unless otherwise ordered by the Board or if a request for review of a decision

and direction of election is filed within 10 business days of that decision and has

not been ruled upon or has been granted before the election is conducted, ballots

whose validity might be affected by the Board’s ruling on the request for review or

decision on review shall be segregated in an appropriate manner, and all ballots

shall be impounded and remain unopened pending such ruling or decision.

Authority: Rule 102.67(c).

(c)

How will the filing of a request for review affect the eligibility of employees

who are the subject of the request for review?

If the request for review is not ruled on, or if it is granted (but a decision on review

remains pending), the ballots of those whose validity may be affected by the

Board’s decision will be segregated and all ballots will be impounded and remain

Authority: Rule 102.67(c).

(d)

What do I have to show to persuade the Board to grant my request for

review?

21

You must demonstrate that there exists a compelling reason to grant review based

on one or more of the following grounds:

(1)

The absence of, or departure from, officially reported Board precedent

raises a substantial question of law or policy.

(2)

The decision on a substantial factual issue is clearly erroneous on

the record and such error prejudicially affects the rights of a party.

(3)

The conduct of the hearing or any ruling made in connection with

the proceeding has resulted in prejudicial error.

(4)

There are compelling reasons for reconsideration of an important Board

rule or policy.

With respect to ground 2, and other grounds when appropriate, you must include a

summary of all evidence or rulings bearing on the issue. You must also include a

summary of the argument.

Authority: Rule 102.67(e).

(e)

Can I presume that the Board will read the transcript of the hearing

before ruling on my request for review?

No. The Rules require that any request for review must be a self-contained

document enabling the Board to rule on the basis of its contents without the

necessity of recourse to the record. Parties filing a request for review should

include with the filing a summary of the arguments, excerpts from the record, and

page citations to the relevant portions of the record. Appending the entire script

is generally not helpful to the Board.

Authority: Rule 102.67(e).

(f)

Can I raise an issue with the Board that I did not raise with the

Regional Director?

No. You may not raise any issue or allege any facts not timely presented to the

Regional Director.

Authority: Rule 102.67(e).

(g)

Can another party file an opposition to a request for review? If so, when?

Yes. An opposition to a request for review must be filed within 5 business days

after the last day a request for review must be filed.

Note: If a party files a request for review prior to the final disposition of the

case, the opposing party is not required to file an opposition until 15

business days after final disposition (10 business days to file a request for

22

Authority: Rule 102.67(f).

(h)

Will the Board wait for an opposition before deciding the request for review?

The Board may grant or deny the request for review at any time without awaiting a

statement in opposition. If you intend to file an opposition to a request for review, it

is a good practice to immediately notify the Office of the Executive Secretary so

that it can let the Board know that an opposition will be coming.

Authority: Rule 102.67(f).

(i)

What effect will my failure to file a request for review have on related

unfair labor practice cases? What effect does a denial have?

The failure to file a request for review precludes the party from relitigating, in any

related subsequent unfair labor practice proceeding, any issue which was or could

have been raised in the representation proceeding.

A denial of a request for review is an affirmance of the Regional Director’s action

which also precludes relitigation of any such issue in an unfair labor practice case.

Authority: Rule 102.67(g).

(j)

Can I waive my right to a request for review?

Yes. If you plan to waive your right to file a request for review, then you should

notify the Regional Director pursuant to Statement of Procedure 101.21(d).

(k)

Can I withdraw my request for review?

Yes. You may seek permission to withdraw from the Board any time prior to the

issuance of the Board’s decision on the request for review. Serve the other

parties and the Regional Director with your request.

Authority: Rule 102.67(h).

(l)

What types of decisions will the Board issue?

The Board may deny review, issue an order granting review and ruling on the

merits of the issue(s) presented in the same document, or grant review without

ruling on the issue(s). If the Board grants the request for review without ruling on

the issues raised, the Board will subsequently issue a decision on review.

review plus 5 business days to file the opposition). As noted below, please

be advised that the Board does not need to await the filing of an opposition

before it issues a decision on the request for review.

23

(m)

If the Board grants review without ruling on the merits of the issue(s)

presented, can I file another brief?

Yes. All parties can file a brief on review within 10 business days after issuance of

the order granting review. These briefs may be a reproduction of the earlier brief

requesting review and/or response to the request for review. You may not file

responses to the briefs submitted following a grant of review.

Authority: Rule 102.67(h).

(n)

Must a brief on review be a self-contained document?

No. After review is granted, the Board will consider the entire record in light of the

grounds relied on in the request for review.

Authority: Rule 102.67(h).

(o)

What is the record the Board relies on following a grant of review?

The record consists of the petition, notice of hearing with affidavit of service,

statements of position, responses to statements of position, offers of proof made at

the pre-election hearing, motions, rulings, orders, the stenographic record of the

hearing, oral argument (if any) before the Regional Director, stipulations, exhibits,

briefs or other legal memoranda submitted to the Regional Director or the Board,

and the Regional Director’s decision.

Authority: Rule 102.68.

(p)

Can the Regional Director treat a brief on review as a request

for reconsideration?

No. The Regional Director cannot reconsider the Director’s decision following the

Board’s grant of review. Pursuant to Rule 102.65(e)(1), however, the Regional

Director may treat a request for review as a motion for reconsideration of the

Director’s decision prior to action by the Board.

(q)

Can the party requesting review withdraw that request following the

Board’s grant of review?

Yes, with permission of the Board.

Authority: Rule 102.67(h).

4.11

Post Election Decisions and Filings

(a)

What can I file when the Regional Director decides challenges

24

and/or objections following an administrative investigation?

The type of document you can file and where you file is determined by the

authority on which the election was conducted (Consent Election Agreement, Full

Consent Election Agreement, Stipulated Election Agreement, or Decision &

Direction of Election). Use the following chart to determine the type of document to

file and where it is to be filed.

Resolution by Regional Director Without a Hearing

If Election Conducted

Pursuant to…

Regional Director

Issues…

Appeal by Filing

with the Board

Consent or Full Consent

Agreement

Rule 102.62(a) and (c)

Decision

Rule 102.69(c)(1)(i)

Not Appealable. Regional

Director’s Decision is final.

Rule 102.69(c)(2)

Stipulated Agreement

Rule 102.62(b)

Decision

Rule 102.69(c)(1)(i)

Request for review due

within 10 business days

from final disposition of

proceeding by Regional

Director.

Rules 102.67(c) and

102.69(c)(2)

Decision and Direction of

Election

Rule 102.67(b)

Decision

Rule 102.69(c)(1)(i)

Request for review due

within 10 business days

from final disposition of

proceeding by Regional

Director.

Rules 102.67(c) and

102.69(c)(2)

(b)

What can I file to appeal the Regional Director’s decision to issue a Notice

of Hearing on challenges and/or objections?

If the election was conducted pursuant to a consent election agreement or final

consent election agreement the decision to issue a Notice of Hearing is final and

not appealable. If the election was conducted pursuant to a stipulated election

agreement or a decision and direction of election you can challenge the decision to

proceed to a hearing by filing a request for review.

Authority: Rule 102.69.

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(c)

What must be shown to warrant a hearing?

If timely objections are filed to the conduct of the election or to conduct affecting

the results of the election, and the Regional Director determines that the evidence

described in the accompanying offer of proof could be grounds for setting aside the

election if introduced at a hearing, or if the challenged ballots are sufficient in

number to affect the results of the election and raise substantial and material

factual issues, the Regional Director must issue a Notice of Hearing.

Authority: Rule 102.69(c)(1)(ii).

(d)

What can I file to appeal a decision on challenges and/or objections

that issues following a hearing?

The type of document you can file and where you file it is determined by the

authority on which the election was conducted (Consent Election Agreement, Full

Consent Election Agreement, Stipulated Election Agreement, or Decision &

Direction of Election). Use the following chart to determine the type of document to

file and where to file it.

Resolution by Hearing

If Election Conducted

Pursuant to…

Hearing Officer will

Issue…

Appeal by Filing

Consent or Full Consent

Agreement

Rule 102.62(a) and (c)

Report with

Recommendations to

the Regional Director.

Rule 102.69(c)(1)(iii)

Exceptions to Hearing

Officer’s Report filed

with the Regional

Director within 10

business days of

issuance of Report.

Rule 102.69(c)(1)(iii).

Regional Director’s

Decision is final.

Rule 102.69(c)(2)

Chart continued on next page

26

Resolution by Hearing, cont.

If Election Conducted

Pursuant to…

Hearing Officer will

Issue…

Appeal by Filing

Stipulated Agreement

Rule 102.62(b)

Report with

Recommendations to the

Regional Director.

Rule 102.69(c)(1)(iii)

Exceptions to Hearing

Officer’s Report filed with

the Regional Director

within 10 business days of

issuance of Report.

Rule 102.69(c)(1)(iii)

Regional Director will

decide exceptions in

supplemental decision.

Rule 102.69(c)(1)(iii)

Party may file request for

review with the Board

within 10 business days

from final

disposition of proceeding

by Regional Director.

Rule 102.69(c)(2)

and 102.67(c)

Decision and Direction of

Election

Rule 102.67(b)

Report with

Recommendations to the

Regional Director.

Rule 102.69(c)(1)(iii)

Exceptions to Hearing

Officer’s Report filed with

Regional Director within

10 business days of

issuance of Report.

Rule 102.69(c)(1)(iii)

Regional Director will

decide exceptions in

supplemental decision.

Rule 102.69(c)(1)(iii)

Party may file request for

review with the Board within

10 business days from final

disposition of proceeding by

Regional Director.

Rules 102.69(c)(2)

and 102.67(c)

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5.

Unfair Labor Practice Cases

5.1

Pretrial Motions

After an unfair labor practice complaint has issued, parties may seek to avoid the

necessity of a hearing by filing with the Board motions for default judgment,

motions for summary judgment, or motions to dismiss the complaint.

(a)

What is a motion for default judgment?

Following issuance of a complaint, but before a hearing has opened, the General

Counsel may file with the Board a motion requesting that the Board dispense with a

hearing and enter a default judgment on the grounds that the respondent has failed

to file an answer to the complaint.

Upon receipt of the motion, the Board will issue a notice to show cause why the

motion should not be granted, which will postpone any scheduled hearing indefinitely.

After a notice to show cause has issued, the respondent may file a response. The

time for filing the response will be stated in the notice to show cause.

Absent good cause being shown for the failure to file a timely answer, the Board

will generally find that the allegations of the complaint are true and grant the motion

for default judgment.

Authority: Rule 102.24.

(b)

What are a motion for summary judgment and a motion to dismiss?

Following the issuance of a complaint, but before a hearing has opened, any party

may file with the Board a motion requesting that the Board dispense with a hearing

and enter summary judgment on all or some of the allegations in the complaint. A

respondent may also file with the Board a motion to dismiss or partially dismiss the

complaint.

The General Counsel may move for summary judgment or partial summary

judgment on the grounds that the answer admits or fails to adequately deny all or

some of the material allegations in the complaint. The General Counsel may also

file a motion for summary judgment on the grounds that the respondent is

attempting to relitigate in an unfair labor practice proceeding issues that were or

could have been litigated in a prior representation proceeding (known as a test-of-

certification proceeding).

A respondent may move for dismissal or partial dismissal of the complaint on the

ground that the facts in the complaint, even if true, do not constitute a violation of

the Act.

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Motions for summary judgment and motions for dismissal ordinarily must be filed

no later than 28 days before the scheduled hearing date. However, if no hearing is

scheduled or if the hearing is scheduled less than 28 days after the answer to the

complaint is due, the motion must be filed “promptly.”

The Board may either deny the motion or issue a notice to show cause why the

motion should not be granted. Generally, the motion will be denied if the Board

determines that there are genuine issues of material fact warranting a hearing. If

the Board issues a notice to show cause, it will normally postpone the hearing

indefinitely. If the non-moving party wishes to argue that there are issues of fact

and the hearing should not be postponed, it may file an opposition to the motion.

The opposition must be filed no later than 21 days prior to the hearing.

After a notice to show cause has issued, any party may file a response. The time

for filing the response will be stated in the notice to show cause.

In addition, the party moving for summary judgment or dismissal may file a reply to

an opposition brief or a response filed by another party. Sur-reply briefs are

generally not permitted, “except by special leave of the Board.” Baker Electric, 330

NLRB 521 fn. 4 (2000).

It is not necessary to attach affidavits or other documentary evidence to a motion

for summary judgment or dismissal, or to an opposition, response, or reply.

After issuance of a notice to show cause, the Board will grant a motion for summary

judgment or a motion to dismiss only where there are no genuine issues of material

fact requiring a hearing and the moving party is clearly entitled to judgment as a

matter of law.

Authority: Rule 102.24.

(c)

How do I file a motion for summary judgment or a motion to dismiss?

If you wish the Board to consider a motion for summary judgment or a motion to

dismiss, you must file it electronically, with a statement of service, with the Office of

the Executive Secretary.

To expedite consideration of your motion, you should attach all documents that

bear upon the motion, i.e., complaints, answers to complaints in unfair labor

practice cases, and decisions on requests for review and decisions and

certifications in representation cases.

Authority: Rule 102.24(a).

Please note that the Board will routinely issue a notice to show cause in test-

of-certification proceedings. However, the Board only issues notices to show

cause in approximately 10 percent of other cases involving pre-trial motions.

29

(d)

What is the due date for the filing a motion for summary judgment or a

motion to dismiss?

Generally, 28 days before the scheduled hearing. If a notice of hearing has not

issued or if one has issued without a hearing date, you should file “promptly.” Be

aware, however, that if you wait to file and a notice of hearing subsequently issues

with a hearing date less than 28 days from service, you may be precluded from

filing. You may also be able to file when less than 28 days remains before the

hearing if the hearing date is less than 28 days from the date an answer to the

complaint is due.

Authority: Rule 102.24 (b).

(e)

Can I file a reply to an opposition to my motion or to a response to a notice

to show cause even if the Rules do not provide for it?

A party that has filed a motion may file a reply to an opposition to its motion within

7 days of receipt of the opposition, but in the interest of administrative finality,

further responses are not permitted except where there are special circumstances

warranting leave to file such a response.

In Baker Electric, 330 NLRB 521 fn. 4 (2000), the Board decided to allow a reply

to a response to a notice to show cause in a summary judgment case. The Board

said it would follow the briefs allowed in Section 102.46 of the Rules, in which

each party gets one response to a movant's document. Since then, the Board

has accepted replies to oppositions and responses in all motion cases, petitions to

quash subpoena cases, motions for reconsiderations, and special appeals cases.

Authority: Rule 102.24(c).

(f)

Will the Board decide my motion for summary judgment or my motion

to dismiss before the hearing opens?

The Board will make every effort to decide the motion prior to the opening of a

hearing. For the purpose of trial preparation, however, you should always assume

that the trial will open as scheduled.

5.2

Requests for Special Permission to Appeal

(a)

How do I file a special appeal?

The Rules provide that adverse rulings of a Regional Director or an Administrative

Law Judge shall not be appealed to the Board directly, except by special

permission. Following the adverse ruling, the request for special permission,

together with the appeal, should be filed “promptly.” The request should contain a

brief statement of the reasons special permission to appeal should be granted and

the grounds relied on for the appeal.

30

Statements in opposition to the request should be filed within 7 days of receipt of

the appeal and must be served simultaneously on the other parties and the ALJ.

Filing of the request does not automatically stay continuation of the hearing or

implementation of the ruling.

Authority: Rule 102.26.

(b)

Can I request special permission to appeal the General Counsel’s refusal

to issue complaint?

No. Section 3(d) of the Act provides that the General Counsel "shall have final

authority, on behalf of the Board, in respect of the investigation of charges and

issuance of complaints . . . ." Further, the Supreme Court has declared that the

General Counsel has unreviewable discretion to refuse to institute an unfair labor

practice complaint. Vaca v. Sipes, 386 U.S. 171, 182 (1967).

(c)

If the Administrative Law Judge grants a motion to dismiss my entire case

before the judge files a decision, should I file a request for special

permission to appeal with the Board?

No. Instead, you should file a request for review with the Board within 28 days of

the judge’s order of dismissal.

File a request for special permission to appeal only if the judge dismisses part of

the case over your objections.

Authority: Rule 102.27.

(d)

How long will it take for the Board to rule on my request for

special permission to appeal?

The Board will rule as soon as possible, but it may not rule before the hearing has

been completed.

5.3

Subpoenas

(a)

Can I obtain subpoenas to compel testimony or production of documentary

evidence during the investigation of an unfair labor practice charge and

prior to issuance of a complaint?

No. The Board will deny a charging party’s and/or a respondent’s subpoena

request submitted prior to the issuance of a complaint. Only the General Counsel

can utilize an investigative subpoena.

(b)

How do I obtain subpoenas to compel testimony or production

31

of documentary evidence after issuance of a complaint?

You may obtain such subpoenas by written application, which are returnable at a

hearing. The parties may agree on an earlier return date for subpoenas duces

tecum.

Specify the number and type requested, i.e., ad testificandum or duces tecum.

Although you can apply for subpoenas to the Board through the Executive

Secretary in Washington, D.C., you will find it more expeditious to apply to the

Regional Director prior to a hearing or to the Administrative Law Judge after the

hearing opens. You do not have to serve the other parties with the application.

The application will be granted, as providing such subpoenas is considered a

ministerial act involving no exercise of discretion.

Authority: Rule 102.31(a).

(c)

How can I obtain enforcement of the subpoena if the person on whom

I served it refuses to comply?

Section 102.31(d) provides that the General Counsel on behalf of the Board and

“on relation of such private party,” will institute enforcement proceedings in the

appropriate district court for enforcement. It is your responsibility, however, to

prosecute enforcement thereafter. Before the General Counsel will institute

enforcement proceedings, you may be required to demonstrate an undue hardship

in obtaining substantially equivalent materials by other means.

Authority: Marian Manor for the Aged and Infirm, Inc., 333 NLRB 1084 (2001).

(d)

If I or my client has been served with a Board subpoena and do not intend

to comply, should I file a request for special permission to appeal with the

Board?

No. If you do not intend to comply, you should file a petition to revoke with either

the Regional Director (if filed prior to the hearing) or with the Administrative Law

Judge (if filed during the hearing). Do not file the petition with the Board. You

must file the petition within 5 business days from the date you receive the

subpoena. The Regional Director may either grant your petition, modify the

subpoena in light of the issues raised in the petition, or oppose the petition.

If the Regional Director opposes the petition, the Director will forward your petition

along with the Director’s opposition to the Board (if it involves a pre-complaint

investigative subpoena) or to the Administrative Law Judge (if it involves a trial

subpoena). If the Regional Director refers your petition to the Board, you may file a

response with the Board to the Regional Director’s opposition. If the Regional

Director refers your petition to an Administrative Law Judge and the Judge denies

your petition in whole or in part, you can challenge the Judge’s decision by filing a

32

request for special permission to appeal with the Board, pursuant to Rule 102.26.

Authority: Rule 102.31(b); Section 11(1) National Labor Relations Act.

(e)

What do I have to show to revoke the subpoena?

You must show that the evidence subpoenaed does not relate to any matter under

investigation; that the subpoena does not describe with sufficient particularity the

evidence whose production is required; or “any other reason sufficient in law.”

Authority: Rule 102.31; Brink’s Incorporated, 281 NLRB 468 (1986); Federal Rules

of Civil Procedure 26(b)(1) and (c) and 45(b).

(f)

Should I withdraw my petition to revoke the subpoena if the matter has

been resolved?

The Board encourages the parties to seek an amicable resolution of subpoena

issues. If, after a petition to revoke has been referred to the Board the parties reach

a resolution, the General Counsel or the subpoenaing party should notify the Board

that the matter no longer needs to be decided. The parties should also rescind the

subpoena or withdraw the petition to revoke.

5.4

Review of Administrative Law Judge’s Decisions and Orders

(a)

How do I obtain review of an Administrative Law Judge’s decision and order?

After the close of the hearing and the submission of post-hearing briefs, the

Administrative Law Judge issues a decision containing findings of fact, conclusions

of law, and the reasons or basis therefore, together with a recommended order.

The Administrative Law Judge files the decision with the Board and copies are

served upon each of the parties along with an order transferring the matter to the

Board. All motions, exceptions, or other documents submitted after the transfer

must be filed with the Board in Washington, D.C.

• Filing Exceptions to the Decision of the Administrative Law Judge

Within 28 days from the date of service of the order transferring the case to

the Board, any party may file exceptions to all or any part of the Judge’s

decision or to any other part of the record or proceedings (including rulings

upon all motions or objections), together with a brief in support of the

exceptions.

Exceptions must identify:

• The questions of procedure, fact, law, or policy to which exception is

taken.

33

• The part of the judge’s decision to which exception is taken, citing

page and line.

• The precise page citations to the parts of the official record

(transcripts and exhibits) that are being relied upon.

• The grounds for each exception.

The Board may disregard any exception that does not meet these four

criteria. Rule 102.46(a)(1).

• Briefs in Support of Exceptions

If a supporting brief is filed, the exceptions must not include any argument or

the citation of authorities relied upon. If a supporting brief is not filed,

however, the exceptions must include the supporting arguments and citation

of authority. Rule 102.46(b)(2).

If you file a separate brief, it should not contain any matter that is not within

the scope of the exceptions, and it must contain the following, in order:

• A clear and concise statement of the case containing all that is material

to consideration of the questions presented.

• The questions involved and to be argued “together with a reference to

the specific exceptions to which they relate.”

• Argument that clearly presents the points of fact and law relied on in

support of the position taken with specific reference to the record.

The Board finds it helpful if you relate your numbered exceptions to the

argument as well as the questions involved.

Please note: There is no page limit to the exceptions document unless

you combine it with a brief in which case the combined document is

limited to 50 pages, absent the grant of a request for additional pages.

If you combine the exceptions and brief, the document should also

include the citation of authorities. When the brief is a separate

document, its limit is also 50 pages, absent the grant of additional

pages. Rule 102.46(h).

Exceptions that are not specifically urged are considered waived.

Accordingly, you should be careful to take specific exception to any of

the judge’s rulings, findings of fact, conclusions of law, and

recommended remedial provisions that you wish the Board to review.

Rule 102.48(a).

34

(b)

How can I participate in the ADR Program?

The Board created the ADR program to assist the parties in settling unfair labor

practice cases pending before the Board on exceptions to decisions issued by an

Administrative Law Judge. Participation in the program is voluntary, and a party who

enters into settlement discussions under the program may withdraw its participation

at any time. No party will be charged fees or expenses for using the program. The

Board will provide the parties with an experienced neutral, to facilitate confidential

settlement discussions to explore resolution options that serve the parties’ interests.

Where feasible, the settlement conferences will be held in person at the parties’

location, but some conferences may be held telephonically or by video conference.

The parties may request participation in the ADR program by contacting the program

director, the Executive Secretary. Deadlines for filing pleadings with the Board will

be stayed effective the date that the case enters the ADR program. A request to

participate in the program does not by itself stay the deadline. If the case is removed

from the ADR program, the time period for filing will begin to run and will consist of

the time period that remained when the case entered the ADR program. Notice will

be provided to the parties of the date the case enters the ADR program and the date

it is removed from the ADR program.

A case may remain in the ADR Program for 28 days from the first settlement meeting

or until the parties reach a settlement, whichever occurs first. A request for extension

of the stay beyond the 28 days will be granted only with the approval and in the

discretion of both the neutral and the program director upon a showing that such an

extension is supported by good cause.

Authority: Rule 102.45(c).

(c)

What happens if no party files exceptions to the Administrative Law

Judge’s decision?

If no party files proper exceptions within the time period allowed by the Board, the

findings, conclusions, and recommendations contained in the Judge’s decision

automatically become the decision and order of the Board, and become its

findings, conclusions, and order pursuant to Section 10(c) of the Act.

Authority: Rule 102.48(a).

(d)

In addition to exceptions and a brief in support of exceptions, what

other documents can be filed after a judge’s decision issues?

In addition to exceptions and a brief in support of exceptions, you can file:

(1)

Cross-exceptions and a brief in support of cross-exceptions.

35

Any party, who has not previously filed exceptions, may file cross-exceptions

and a brief in support of cross-exceptions.

Cross-exceptions are due within 14 days from the last date on which exceptions

and any supporting brief may be filed.

Cross-exceptions and supporting briefs are subject to the same requirements as

exceptions and supporting briefs with regard to content, format, and length.

Authority: Rule 102.46(c).

(2)

One answering brief to each party’s exceptions or cross-exceptions.

(If two parties file exceptions, you should file two answering briefs.)

Answering briefs to exceptions are due within 14 days from the last date on

which exceptions and any supporting brief may be filed.

Answering briefs to cross-exceptions are due within 14 days from the last date

on which cross-exceptions and any supporting briefs may be filed.

Answering briefs must be limited to the issues raised in the other party’s

exceptions or cross-exceptions and supporting briefs, and must, with respect to

each issue, clearly present the facts and points of law relied upon to support the

position taken.

Authority: Rule 102.46(b) and (d).

(3)

A reply brief to each party’s answering brief

A reply brief, limited to 10 pages and only addressing issues raised in an

answering brief to which it is replying, may be filed within 14 days of the date on

which the answering brief is due. The due date for a reply brief may NOT be

extended.

Authority: Rule 102.46(e).

(e)

Can I file my brief to the Judge, in whole or in part, with the Board?

You may file with the Board the same brief you filed with the Judge. Generally,

when a party refiles with the Board its brief to the Judge, the brief is filed as a brief

in support of exceptions. The brief to the Judge when refiled with the Board,

A responsive brief to a reply brief cannot be filed except by special leave

of the Board.

36

however, counts toward the page limit for briefs. Thus, if you do not obtain

permission to file a brief in excess of the standard 50 pages and your brief to the

Judge that you are submitting to the Board exceeds 50 pages, it will be rejected.

If you file a brief in which you incorporate by reference your brief to the Judge, the

pages for both will be counted toward the page limit.

Although you may file an exact copy of the brief you submitted to Judge with a

cover letter indicating you are submitting it to the Board, such copies will often

contain extraneous material, e.g., argument on issues with which the Judge

subsequently agreed. Therefore, the better practice is to change the title and

make other appropriate changes (e.g., delete portions in which you prevailed

before the Judge) and reprint it for submission to the Board. Such changes are

critical if the brief is submitted as an answering brief or reply brief, both of which

are limited to issues raised in the brief to which you are responding.

(f)

Can I adopt another party’s brief?

Yes. However, if the adoption is accompanied by your own argument or brief, the

pages of both briefs will be counted toward the page limit. For example, if you file a

10 page brief with respect to one or two issues and you adopt another party’s 50-

page brief with regard to other issues and you have not obtained permission for

additional pages, it will be rejected because you have exceeded the page limit.

(g)

Can I file attachments to my briefs?

It depends. Generally, if the document you attach is not part of the record, the

Board will disregard it and, upon the filing of a motion to strike, it will be rejected.

Affidavits and documentary evidence, for example, which are not part of the record

will be rejected. Charts that the filer constructs may be allowed, but, if they contain

argument or are intimately connected to arguments in the brief, they may be

counted toward the page limit for argument. If the total exceeds the page limit, the

entire brief with attachments will be rejected. There is no prohibition to attaching

exhibits already in evidence, but it is unnecessary.

(h)

Must my cross-exceptions be related to exceptions filed by the other parties?

No. In fact, the purpose of the provision for filing cross-exceptions contemplates

that they be unrelated.

(i)

Can I combine the briefs I want to file?

Generally, no. Section 102.46(h) of the Rules states that any brief filed as part of

the briefing schedule precipitated by an Administrative Law Judge’s decision must

not be combined with any other brief. Therefore, do not combine answering briefs

The Board will not review a brief submitted to the judge unless the party

refiles the brief with the Board.

37

and reply briefs, answering briefs that respond to exceptions filed by two other

parties, or reply briefs that respond to answering briefs filed by two other parties.

The prohibition against combining briefs assures that parties do not devote more

than the allowable pages to one brief. Further, the prohibition assures that the

Board can determine which briefs and legal arguments are being addressed.

Notwithstanding the prohibition in Section 102.46(h) of the Rules, the Executive

Secretary’s Office has allowed combining of briefs where subject headings in the

brief make clear which briefs and arguments of the opposing parties are being

addressed and the brief does not exceed the number of pages allowed to address

each brief.

(j)

What do I file to correct errors in the transcript?

The best procedure is to file such requests with the Administrative Law Judge

before the Judge issues the decision. If you do not notice the errors until after the

case has been transferred to the Board, file a motion with the Board identifying the

mistakes and indicating the pages and lines of the transcript where they are found,

and how they should be corrected. As with all filings, be sure to serve this motion

on the other parties. Upon receipt of your motion, the Executive Secretary’s Office

will invite the parties to provide a position on the alleged errors with a due date for

a response. If no opposition is filed by the due date, the record is corrected as

requested.

(k)

How do I file an amicus brief?

Amicus curiae briefs will be accepted only by permission of the Board. Motions for

permission to file an amicus brief must state the bases of the movant's interest in the

case and why the brief will be of benefit to the Board in deciding the matters at issue.

Section 102.46(i) provides the procedures for filing such a request.

(l)

If I am not a charging party, respondent, or amicus, can I intervene in a

Board proceeding?

Except for intervention in cases seeking an advisory opinion or declaratory order,

the Rules do not contemplate filing a request for intervention directly with the

Board. Rules 102.29 and 102.65(b) discuss seeking intervention with the Regional

Director and the Administrative Law Judge, and such matters should be resolved

when the case is before them, rather than in the later stages when the case is

before the Board. On occasion when special circumstances arise, the Board has

granted intervention requests to permit the filing of exceptions by an interested

party. The Board has discretion to grant intervention in special cases to such an

extent and upon such terms as it deems proper.

(m)

In addition to the exceptions and briefs, what does the Board review

and consider in making its decision?

38

Rule 102.48(b) specifies that the Board decides unfair labor practice matters based

on the record. Rule 102.45(b) states that the record comprises the charge and

amended charge, complaint and amended complaint, notice of hearing, answers

and amended answers to the complaint, motions, rulings and orders of the judge or

the Board, the transcript of the hearing, stipulations, exhibits, documentary

evidence, depositions, the judge’s decision and the parties’ exceptions, cross-

exceptions, answering briefs, and reply briefs.

Briefs to the Judge are not part of the record. Also, rulings on petitions to revoke

subpoenas become part of the record only upon request of the party aggrieved by

the ruling.

The Board does not contact or discuss the case with the General Counsel, counsel

for the General Counsel, or any Administrative Law Judge.

(n)

How do I bring the Board’s attention to a matter after the briefing

schedule has closed?

Under Rule 102.6, a party can call the Board’s attention to “pertinent and significant

authorities” that “come to a party’s attention after the party’s brief has been filed.”

(This is more commonly referred to as a Reliant submission). This is accomplished

usually through a letter setting forth the case citations, pages, and lines in the brief

where the citations belong, and the bases of their relevance. The body of the letter

must not exceed 350 words (approximately 1½ pages). The case allows the other

parties to file an equally short reply within 14 days of service of the letter in unfair

labor practice cases and 7 days in representation cases. No extension of time is

permitted to file a response.

39

Authority: Rule 102.6.

5.5

Motions for Reconsideration, Rehearing, or Reopening the Record

(a)

How do I request a rehearing, reopening of the record, or reconsideration of

a Board decision?

Rule 102.48(c) provides that, in extraordinary circumstances, a party may move for

reconsideration, rehearing, or reopening of the record after a Board decision or

order.

A motion to reopen the record must briefly state the evidence sought to be

adduced, why it was not produced previously, and explain why the evidence would

lead to a different result if adduced and credited. Such a motion will be granted

only if the evidence is either newly discovered or became available only after the

close of the hearing. Newly discovered evidence is evidence in existence at the

time of the hearing which could not be discovered at that time by the exercise of

reasonable diligence. Point Park University, 344 NLRB 275, 276 (2005).

Motions allowed under this rule must be filed within 28 days after service of the

Board’s decision or order, unless the Board allows additional time. A motion for

leave to adduce additional evidence will be timely, even if filed after the end of the

28-day period, if it is filed promptly after the evidence is discovered.

Authority: Rule 102.48(c).

(b)

How do I request that the Board clarify its decision?

Motions for clarification are most appropriate if you suspect that an omission or

error in an uncontested fact or conclusion was inadvertent. The Board can modify

or set aside, in whole or in part, any findings of fact, conclusions of law, or order

made or issued by it provided that “reasonable notice” is provided and the record

has not been filed in a court of appeals.

Authority: Section 10(d), National Labor Relations Act; Rule 102.49.

(c)

If I lost my case before a Board panel, can I request consideration by the

full Board?

There is no rule prohibiting such requests, but they are rarely granted. These types

of motions often are filed by a losing party in a case in which the panel split 2-1.

The movant presumes that the other two members, if given the opportunity to

participate, will take the minority view changing it into a majority. You should be

aware, however, that before any published case issues the non-participating

members review the decision. During that review, they have the opportunity to join

the panel. Accordingly, any assumption that the non-participants were not aware

40

of the decision or were precluded from participating is erroneous.

5.6

Court Review of Board Decisions

(a)

Can I obtain court review of the Board’s decision?

Any person aggrieved by a final order issued by the Board may petition a United

States court of appeals for review of the order. No time limitations have been set

within which review or enforcement must be sought. A petition for review may be

filed in the United States court of appeals for the circuit in which the unfair labor

practices allegedly occurred, or in which the parties reside or conduct business, or

in the District of Columbia Circuit. Review petitions may be filed by a respondent,

a charging party, or any other person who is aggrieved, including, for example, an

alleged discriminatee.

Authority: Section 10(f), National Labor Relations Act.

(b)

Can I obtain a stay of the Board’s decision until I file a request for

reconsideration with the Board or a request for review with a United States

court of appeals?

No. Rule 102.48(c)(3) clearly states that a request for reconsideration “shall not

operate to stay the effectiveness of the action of the Board unless so ordered.”

With respect to a stay sought pending a request for review, Board orders are not

self-enforcing. A respondent cannot be compelled to take affirmative action

required by a Board order until the order is enforced by a court of appeals. If the

stay is sought to avoid accruing additional liability pending review, either for

engaging in additional conduct in violation of the Board’s order or for failing to

provide benefits or backpay currently accruing under the order, an application for

review affords no basis for granting a stay. A respondent that fails to comply with

a Board order pending court review acts at its peril and assumes the risk that

liability will continue to accrue. A contrary result would prejudice innocent

employees while benefiting the violator of the Act. See Maywood Do-nut Co.,

Inc., 256 NLRB 507 (1981).

(c)

What happens if a court of appeals remands a case to the Board?

After the court of appeals issues a formal notice of decision remanding the case to

the Board, the General Counsel will recommend to the Board whether it should

accept the remand or seek certiorari before the Supreme Court. Most often, the

Board decides to accept the remand. The Board panel to which the case was

originally assigned will then decide whether to accept the decision of the court as

the law of that case, issue another decision based solely on the issues the court

remanded without the benefit of additional briefs by the parties, or solicit additional

briefs on the remanded issues. Occasionally, the Board may remand the matter

41

to an Administrative Law Judge for further hearing and/or supplemental decision.

The Executive Secretary issues a letter to the parties advising them of the

Board’s decision on the remand and whether briefs will be entertained and their

due date. Usually, if the Board asks for briefs on the remanded issue, it does not

allow answering briefs.

6.

Settlements

(a)

Can I settle my case after the Administrative Law Judge has issued a

decision and the case has been transferred to the Board?

Yes. You should contact the Regional Compliance Officer if you desire to settle.

You may also want to consider participating in the Board’s ADR program.

(b)

What must I file if a case pending before the Board has settled?

Except for formal settlements that provide for a Board Order and court judgment,

the Board does not approve settlements or approve withdrawals. It prefers to

remand the case to the Regional Director for approval of settlements and

withdrawals. Thus, the best procedure is to file a motion for remand.

Although the Board generally will not approve the settlement, this is not to say that

the settlement and its terms are irrelevant. Indeed, the movant must disclose the

terms of the settlement to the Board. Merely stating that the case has settled is

insufficient. If the settlement is written, a copy should be submitted with the

motion.

The Board does not require that pending exceptions be withdrawn, but the parties

may want to do so as an indication of their good faith (subject to reinstatement if

the motion for remand is denied). Even if the settlement satisfies the Independent

Stave criteria, the Board may refuse to remand the case because it deems that a

public policy outweighs the wishes of the parties. See Flyte Time, 362 NLRB No.

46 (2015) (Board denied motion to remand finding that approval of the settlement

In reviewing the parties’ motion to remand based on a settlement, the Board

balances public policy concerns with the wishes of the parties. To do so, the

Board will analyze all the surrounding circumstances, including, but not

limited to: 1) whether the charging party, the respondent, and individual

discriminatees have agreed to be bound, and whether the General Counsel

agrees with the settlement; 2) whether the settlement is reasonable in light of

the nature of the alleged violations, the risks of continued litigation, and the

stage of litigation; 3) whether the settlement was obtained through fraud,

coercion, or duress by any of the parties; and 4) whether the respondent has

a history of violating the Act or breaching previous settlements. See

Independent Stave, 287 NLRB 740, 744 (1987).

42

would not effectuate policies of the Act).

(c)

Can I settle my case after the Board has issued a decision?

Yes, with qualifications. Before issuing a complaint, the General Counsel can settle

cases in a manner that the General Counsel determines will best effectuate the Act

in the circumstances of the case. After a case is transferred to the Board, those

determinations rest with the Board. The optimal time to settle is early in the

process. Except in circumstances where circuit court precedent indicates

significant risk in court enforcement of the Board’s decision, a respondent’s

influence in obtaining a post-Board Order settlement is substantially diminished.

After the Board Order issues, the Regional Director serves as an agent of the

Board in effecting compliance with the Board Order. Generally, unless there are

certain financial exigencies which indicate full compliance is not immediately

possible, or changed circumstances, the Regional Director will expect a respondent

to comply fully with the Board’s Order. Although the Regional Director will assess

all settlement overtures, the Director usually will not delay seeking enforcement of

the Board Order, which if obtained further diminishes the position of a respondent

in settlement discussions.

Even when the respondent has demonstrated special circumstances that may

warrant some remedial modifications, the respondent, as a condition for a

settlement, may be required to agree to a formal compliance stipulation, consent to

court enforcement, and/or provide security collateral.

The Board will entertain post-Board Order requests from a prevailing charging party

that desires to immediately settle for less than full compliance rather than await the

resolution of compliance issues through litigation.

(d)

Will the Board vacate a judge’s or Board decision as part of a settlement?

The Board rarely agrees to vacate either a judge’s decision or one of its own

decisions as part of a settlement. Parties must demonstrate that extraordinary

circumstances warrant vacating the decision. The few times the Board has done

so involved settlements of numerous and complex unfair labor practice cases

pending in various stages, and the “global” settlement saved the Board and the

parties extensive time and costs involved in continued litigation.

Vacatur of a Board decision will be published. Vacaturs of judges’ decisions are

unpublished. Further, the Board is not responsible for the handling of vacaturs by

services like Westlaw. Although a decision may be vacated, it may still be

available for viewing by subscribers of the service.

Finally, decisions that are vacated pursuant to a settlement retain their precedential

value regarding the legal holding of the decision. They may continue to be cited by

practitioners in this regard. See, e.g., Caterpillar, Inc., 332 NLRB 1116 (2000).

43

7.

Compliance Proceedings

(a)

How do I obtain review of a Regional Director’s compliance determination?

As noted above, after the Board Order issues, the Regional Director serves as an

agent of the Board in effecting compliance with the Order. During the compliance

investigation, the Regional Compliance Officer will have numerous discussions

with the charging party(ies) and the respondent regarding satisfaction of the

affirmative provisions of the Board’s Order. The Compliance Officer will share the

Officer’s conclusions regarding the backpay period interim earnings, and backpay

and benefit amounts that will satisfy the Board’s Order.

When a charging party disputes the Region’s determination of what constitutes

compliance with the Board’s Order, the charging party has a right to request a

written determination by the Regional Director of compliance requirements.

Within 14 days of the issuance of the written compliance determination, the

charging party may file an appeal with the General Counsel in Washington D.C.

Should the General Counsel deny the appeal of a compliance determination, the

charging party may file a request for review with the Board within 14 days. Only

the charging party can file the appeal with the General Counsel and the request

for review with the Board.

Should the respondent contest the compliance requirements determined by the

Region, the Regional Director will issue a compliance specification and notice of

hearing before an Administrative Law Judge.

Authority: Rules 102.52 – 102.54.

(b)

How do I obtain review of an Administrative Law Judge’s decision

on a compliance matter?

A party that is aggrieved by an Administrative Law Judge’s decision on a

compliance matter may file exceptions with the Board. Such exceptions are due

within 28 days of the Judge’s decision. Answering briefs and reply briefs are also

allowed.

Authority: Rule 102.46.

8.

Advisory Opinions and Declaratory Orders

(a)

Does the Board provide advisory opinions?

Yes, but only in response to a petition from an agency or court of any State or

Territory regarding whether the Board would assert jurisdiction over the parties in

a labor dispute pending before the agency or court. In that circumstance, the

44

agency or court may file a petition with the Board for an advisory opinion as to

whether the Board would decline to assert jurisdiction based either on its

commerce standards or because the employer is not within the jurisdiction of the

Act. The Board will only accept such petitions if filed by the agency or the court

itself. A private party may not file a petition for an advisory opinion.

Authority: Rules 102.98 – 102.104.

(b)

Does the Board provide declaratory orders?

Yes. Where both an unfair labor practice charge and a representation petition

relating to the same employer are pending in a regional office, and the General

Counsel is in doubt over whether the Board would assert jurisdiction over the

employer involved, the General Counsel may petition the Board and obtain a

declaratory order concerning whether, under its discretionary jurisdictional

standards, the Board would assert jurisdiction over the employer’s operations.

If the General Counsel files a petition for declaratory order regarding discretionary

jurisdiction in a matter pending before the Agency, any persons may request

intervention by filing with the Board a written motion stating their interest in the

petition.

Authority: Rules 102.105 - 102.109.

9.

Prohibited Ex Parte Communications

(a)

What is a prohibited ex parte communication?

An "ex parte communication" is an oral or written communication relevant to the

merits of an Agency proceeding that is not on the public record and with respect to

which reasonable prior notice to all parties is not given. With certain limited

exceptions, such private, off-the-record communications by interested persons in

an Agency proceeding to any Agency official or employee who may reasonably be

expected to participate in the decision in the proceeding is prohibited.

Specific examples of prohibited ex parte communications are set forth in Section

102.129 of the Board’s Rules. These include, but are not limited to,

communications by an interested party in an unfair labor practice case to an

administrative law judge assigned to hear the case or to the Board Members and/or

their legal assistants relevant to the merits of the case. Examples of ex parte

communications that are not prohibited are set forth at Section 102.130 of the

Rules. These include, among other things, requests for information solely with

respect to the status of a proceeding and communications proposing settlement or

an agreement for disposition of any issues in the proceeding.

Authority: Rules 102.126 – 102.131.

45

(b)

How does the Board enforce prohibitions on ex parte communications?

Any Agency official or employee who receives a prohibited communication is

required to place the communication in the public record, if it was written, or to

place a memorandum stating the substance of the communication in the public

record, if it was oral. The Agency will then serve copies on all parties to the

proceeding. Within 14 days after service, any party may file a statement admitting

or denying any facts or contentions contained in the prohibited communication.

The Agency may also issue a notice to show cause why penalties should not be

imposed on a party who knowingly makes a prohibited communication or

knowingly causes a prohibited communication to be made. Penalties may include

dismissal of the party’s claim or interest in the proceeding, censure, or suspension

or revocation of the privilege to practice before the Agency.

Authority: Rules 102.132; 102.133.

(c)

How do I report a prohibited ex parte communication?

The Rules do not specify any means by which private parties should report

prohibited communications. However, as discussed in greater detail in Section 10

of this Guide, allegations that an attorney or other representative appearing or

practicing before the Agency has engaged in misconduct, including knowingly

making or causing to be made a prohibited ex parte communication, may be

brought to the attention of the Associate General Counsel in the Division of

Operations-Management by any person.

10.

Misconduct by an Attorney or Other Representative

(a) How do I report misconduct of an attorney or representative in a Board

proceeding and what action will the Board take after receiving my report?

Any attorney or other representative appearing or practicing before the Agency is

required to conform to the standards of ethical and professional conduct required of

practitioners before the courts. Misconduct by an attorney or other representative

at any stage of any Agency proceeding may be grounds for discipline.

Allegations that an attorney or other representative has engaged in misconduct

may be brought to the attention of the Associate General Counsel in the Division of

Operations-Management by any person.

For further information, see Rule 102.177.

Authority: Rule 102.177; In re: Kirk Caraway, 347 NLRB 884 (2006); In re: James

Simpson, 347 NLRB 883 (2006); In re: Stuart Bochner, 322 NLRB 1096 (1997).

46

11.

Equal Access to Justice Act (EAJA) Filings

(a)

How do I know if I am eligible for an award of fees and expenses under

EAJA?

You are eligible if you were a respondent in an adversary adjudication (unfair labor

practice or backpay proceeding), you prevailed in a significant and discrete

substantive portion of the proceeding, the General Counsel’s position in the

proceeding was not substantially justified, and your net worth or the number of

employees you employ does not exceed certain thresholds:

• Individuals are eligible if their net worth does not exceed $2 million.

• Other applicants are eligible if their net worth does not exceed $7 million and

they do not employ more than 500 employees.

• There is no net worth limit for charitable and other tax-exempt organizations or

cooperative associations, but they may not employ more than 500 employees.

Net worth and number of employees is determined as of the date of the complaint

in an unfair labor practice proceeding or the date of the notice of hearing in a

backpay proceeding. Net worth and the number of employees of the applicant and

all its affiliates will be aggregated.

The application must be filed within 30 days “after entry of the Board’s final order.”

Thus, the 30-day period begins to run on the date of the order, not the service or

issuance date.

Authority: Rules 102.143; 102.144.

(b)

How do I apply for an award of fees and expenses?

File with the Board an application that includes the following:

(1)

The identity of the applicant and the adversary adjudication.

(2)

A statement of the particulars in which you prevailed, and a description of

the positions of the General Counsel that you allege were not substantially

justified.

(3)

A statement of the number, category, and work location of your employees

and those of each of your affiliates (unless applicant is an individual).

(4)

A brief description of the type and purpose of your business.

(5)

A statement that you did not exceed the standards for net worth and

number of employees.

(6)

A statement of the amount of fees and expenses for which an award is

47

sought.

(7)

Your signature or the signature of your attorney or agent, including a signed

written verification under oath or under penalty of perjury that the

information in the application is true.

(8)

A detailed exhibit showing your net worth and that of your affiliates that fully

discloses all assets and liabilities.

(9)

An exhibit fully documenting the fees and expenses you are seeking,

including separate itemized statements for each professional firm or

individual whose services are covered by the application showing the dates

of services, hours spent in connection with the proceeding by each, a

description of specific services performed, the rates at which the fees were

computed and the total amounts claimed and paid.

(10)

A certificate of service indicating that you served all parties with the

application.

Authority: Rule 102.147.

(c)

How is my application processed?

Upon the filing of the application, the Board refers it to the Administrative Law

Judge who heard the adversary adjudication upon which the application is based.

After the application is referred, file all documents and/or motions with the Judge,

not the Board. Generally, the Judge will issue a decision based on the record. A

hearing usually is not conducted. The Judge’s decision on the application,

including the Judge’s decision to grant a motion to dismiss filed by the General

Counsel, is appealable to the Board. Parties may also file requests for special

permission to appeal with the Board concerning any interim ruling by the Judge.

Authority: Rule 102.148(b).

(d)

Is my net worth exhibit disclosable to the public?

Yes. The net worth exhibit is part of the public record. If you object to the

disclosure of the exhibit or any part of it, submit the exhibit or that portion in a

sealed envelope labeled “Confidential Financial Information” accompanied by a

motion to withhold the information from the public, which should include a

description of the information sought to be withheld and a detailed explanation why

public disclosure will adversely affect the applicant and is not required in the public

interest. Serve the motion on all parties.

Authority: Rule 102.147(g)(1).

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(e)

If I file a motion to withhold disclosure of the net worth exhibit, must I

serve the exhibit on all parties?

No. You must serve the exhibit on the General Counsel, but you do not have to

serve it on the other parties.

Authority: Rule 102.147(g)(1).

(f)

If the Judge grants my motion, can I assume the net worth exhibit will never

be disclosed?

No, it may be disclosed if required at a hearing on the application. Also, the

Judge’s decision granting the motion is not determinative regarding requests under

the Freedom of Information Act when requested under the provisions of Section

102.117 of the Board’s Rules. Finally, the General Counsel may disclose the

information to others if required in the course of an investigation to verify the claim

of eligibility.

Authority: Rule 102.147(g)(2).

(g)

Can I file a motion to withhold disclosure of my exhibit documenting the

fees and expenses?

No. The Rules do not provide for such a motion. The exhibit documenting fees

and expenses is part of the public record.

(h)

Can I obtain an extension to file the application?

No. The Board does not have authority to change EAJA’s statutory deadlines.

Authority: Rule 102.111(b)(2).

(i)

Is there a limitation on the fees I may claim?

Yes. An award for attorney or agent fees may not exceed $75 per hour, but any

person may file a petition with the Board for rulemaking to increase this rate. The

petition should specify the rate the petitioner believes should be established and

fully explain why the higher rate is warranted by the increase in the cost of living or

a special factor.

Authority: Rules 102.145; 102.146.

(j)

Will the Board decide my petition for fees before the judge issues a

decision on my application?

No. The petition for fees is held by the Board’s Office of the Executive Secretary

until exceptions to the judge’s decision are filed. If the judge dismisses the

49

application and no exceptions are filed, or if the Board rules against the award of

fees and expenses, the petition will be deemed moot.

(k)

What can be filed with the Board following issuance of the judge’s

decision on my application?

Parties may file the briefs allowed following a judge’s decision in an unfair labor

practice case outlined in Section 102.46 of the Rules. These include exceptions

and briefs in support, briefs in support of the judge’s decision, cross-exceptions,

and briefs in support, answering briefs, and reply briefs.

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APPENDIX A

CHECKLIST FOR PREPARATION OF

EXCEPTIONS, CROSS-EXCEPTIONS, AND

BRIEFS IN UNFAIR LABOR PRACTICE CASES

I.

EXCEPTIONS, CROSS-EXCEPTIONS, AND SUPPORTING BRIEFS

A. TIME REQUIREMENTS

1. Exceptions and Supporting Briefs: Due 28 days from the date of service of

the order transferring the case to the Board. (The service date of the Transfer

Order is the date it was placed in the mail or the date an e-mail was sent to

you with a link to the Transfer Order.) The due date will appear in the “Note” at

the bottom of the Transfer Order.

Authority: Rule 102.46(a).

2. Cross-Exceptions and Supporting Briefs: Due 14 days from the last date

on which exceptions and any supporting brief may be filed.

Authority: Rule 102.46(c).

B. REQUESTS FOR EXTENSIONS OF TIME

Due dates for exceptions and supporting briefs, cross-exceptions and supporting

briefs, and answering briefs may be extended for a reasonable period with

permission of the Board requested no later than the due date. Extension

requests filed within 3 days of the due date must be grounded on circumstances

not reasonably foreseeable in advance.

Authority: Rule 102.2(c).

C. CONTENTS

1. Exceptions and Cross-Exceptions: Each exception and cross-

exception must specifically set forth:

a. The questions of procedure, fact, law, or policy to which exception is

taken.

b. The part of the judge’s decision to which exception is taken, citing page

and line.

c. The precise page citations to the parts of the official record (transcripts

and exhibits) that are being relied upon.

d. The grounds for each exception.

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Note: If no supporting brief is filed, each exception must also include the citation

of authorities relied upon and the argument in support of the exception. If a

supporting brief is filed, the exceptions cannot include any argument or the

citation of authorities relied upon.

Authority: Rule 102.46(a)(1).

2. Briefs in Support of Exceptions and Cross-Exceptions: A brief filed in

support of exceptions or cross-exceptions must not contain any matter that is

not within the scope of the exceptions, and it must contain, in order, the

following:

a. A clear and concise statement of the case containing all that is material to

consideration of the questions presented.

b. The questions involved and to be argued “together with a reference to the

specific exceptions to which they relate.”

c. Argument that clearly presents the points of fact and law relied on in

support of the position taken with specific reference to the record.

Any brief exceeding 20 pages must also include a subject index with page

references and an alphabetical table of cases and other authorities cited.

Authority: Rule 102.46(a)(2).

D. LENGTH: Briefs are limited to 50 pages (not including the subject index and

table of cases and other authorities), unless a request for additional pages is

granted.

Any request for additional pages must be received no later than 10

days before the due date. There is no page limit to the exceptions document

unless it is combined with a brief, in which situation the combined document is

limited to 50 pages.

Authority: Rule 102.46(a)(1).

E. FORMAT

1. Paper Size: 8½” by 11”.

2. Margins: No less than 1” on all sides.

3. Line Spacing: Double, except that quotations and footnotes may be

single spaced.

4. Type: No smaller than 12 characters per inch (elite or the equivalent),

including footnotes.

5. Binding: No special requirements.

52

Authority: Rule 102.5(a); Rule 102.46(j) and 102.114(f).

F. HOW TO FILE: Unless otherwise stated, E-Filing via the Agency’s website

(www.nlrb.gov). Documents that are more than 20 MB in size may not be E-

Filed.

Authority: Rule 102.5(c).

.

G. WHERE TO FILE: Documents, except those that are E-Filed, should be filed

with the Board’s Executive Secretary at the address set forth below:

Executive Secretary

National Labor Relations Board

1015 Half Street, SE

Washington, DC 20570

II.

SERVICE ON OTHER PARTIES

A. Methods of Service: Filings must be served on all other parties in the same

manner that the document was filed with the Board, or in a more expeditious

manner, with the following exceptions.

1. E-Filing: When filing with the Board is accomplished by e-filing, the other

parties must be served by electronic mail (e-mail), if possible. If the other

parties do not have the ability to receive electronic service, they must be

notified by telephone of the substance of the document and a copy of the

document must be served by personal service no later than the next day, by

overnight delivery service, or, with the permission of the party receiving the

document, by facsimile transmission.

2. Facsimile: When filing with the Board is accomplished by facsimile

transmission, the same method must be used to serve other parties

whenever possible. However, the consent of the party receiving the

document must be obtained prior to service by facsimile transmission.

When a party cannot be served by facsimile, or chooses not to accept

service by facsimile, the party must be notified personally or by telephone

of the filing and a copy of the document must be served by personal service

or overnight delivery service.

Authority: Rule 102.5(f).

2. Statement of Service and Proof of Service: All filings must be accompanied

by a statement of service on other parties. The statement of service must

specify the names of the parties served and the date and manner of service.

It is also helpful if you indicate the date and method of filing with the Board.

Proof of service (e.g., return post office receipt or private delivery service

receipt) is ordinarily not required. Proof of service will be required only if a

question is raised with respect to proper service.

53

Authority: Rule 102.5(g) and (h).

III.

ANSWERING BRIEFS

A. TIME REQUIREMENTS: Due 14 days from the last date on which exceptions

or cross-exceptions and any supporting brief may be filed.

Authority: Rule 102.46(b).

B. CONTENTS: Answering briefs must be limited to the questions raised in

the other party’s exceptions or cross-exceptions and supporting briefs and

must clearly present:

1. The facts and points of law relied upon to support the position taken.

2. The page citations to the parts of the official record (transcripts and

exhibits) that are being relied upon to support the position taken.

Any answering brief exceeding 20 pages must also include a subject index

with page references and an alphabetical table of cases and other

authorities cited.

Authority: Rule 102.46(b).

Answering briefs are subject to the same requirements as exceptions and

supporting briefs with regard to requests for extensions of time, length,

format, filing, and service.

IV.

REPLY BRIEFS

A. TIME REQUIREMENTS: Due 14 days from the date on which the answering

brief is due. No requests for extensions of time will be granted.

Authority: Rule 102.46(h).

B. CONTENTS: Reply briefs must be limited to the matters raised in the answering

brief to which it is replying.

Authority: Rule 102.46(h).

C. LENGTH: Limited to 10 pages. No requests for additional pages will be

granted.

Authority: Rule 102.46(h).

Reply briefs are subject to the same requirements as exceptions and supporting

briefs with regard to format, filing, and service.

54

APPENDIX B

QUICK REFERENCE GUIDE FOR

UNFAIR LABOR PRACTICE FILINGS

Document Rule Due Date

Answer Date Reply Due

Means

Motion for Summary

Judgment (MSJ) or

Dismissal

102.24(b)

28 days

before

hearing

Opposition due

21 days before

hearing

Prior to

Board action

E-File

Motion for Default

Judgment

102.24

Prior to

hearing

Opposition due

prior to Board

action

Prior to

Board action

E-File

MSJ or Dismissal when

no hearing is scheduled

or when hearing is less

than 28 days after due

date for answer to

complaint

102.24(b)

Promptly

Opposition due

prior to Board

action

Prior to

Board action

E-File

Response to Notice to

Show Cause (NSC)

102.24

As noted

in NSC

Prior to

Board action

Prior to

Board action

E-File

Requests for Special

Permission to Appeal

102.26

Promptly

Opposition due

promptly

Prior to

Board action

E-File

Request for Review of

Pre-Decision

Administrative Law

Judge’s (ALJ)

Dismissal

102.27

28 days from

date of the

order

Prior to

Board action

Prior to

Board action

E-File.

Response to General

Counsel’s Opposition to

Petition to Revoke

Subpoena

102.24(c)

Response due

within 7 days

of receipt of

opposition

N/A

N/A

E-File

Request for Board Order

compelling testimony

from individual who is

likely to refuse to testify

on basis of privilege

against self-

incrimination

102.31(c)

Any time

prior to

hearing or

after transfer

to Board

N/A

N/A

E-File

55

Document Rule Due Date

Answer Date Reply Due

Means

Special Appeal of ALJ’s

denial to compel

testimony from witness

who claims privilege

against self-

incrimination

102.31(c)

Within 24

hours of

ALJ’s ruling

N/A

N/A

E-File

Briefs following Board

acceptance of

stipulation of facts

102.35(a)(9)

As set forth

in Order

accepting

stipulation

14 days from

last date for

initial briefs

Not allowed

except by

special

permission

E-File

Exceptions to

Judge’s Decision (JD)

102.46(a)

28 days from

service of JD

14 days from

last due date

for exceptions.

14 days from

last due date

for answers.

E-File

Cross-Exceptions to

Judge’s Decision

102.46(c)

14 days

from last

due date for

exceptions.

14 days from

last due date

for cross-

exceptions.

14 days from

last due date

for answers.

E-File

Request for Extension

of due date for

exceptions to JD,

cross-exceptions; and

answering briefs

May not be requested

for reply briefs

102.2(c)

Before the

due date, but

if within 3

business days

of due date,

must be

based on

unforeseen

circumstances

Prior to

Board action

Prior to

Board action

E-File,

hand

delivery,

mail; or

fax to

202-

273-4270

Request to enlarge 50-

page limit

May not be requested

for reply briefs

102.5(b)

No later than

10 days

before due

date for filing

document for

which

enlargement

is requested

Prior to

Board action

Prior to

Board

action.

E-File,

hand

delivery,

mail; or

fax to

202-

273-4270

Any Motion filed after

the case is transferred

to the Board

102.47

Prior to

Board

Decision

Prior to

Board action

Prior to

Board action

E-File

56

Document Rule Due Date

Answer Date Reply Due

Means

Requests for

reconsideration,

rehearing or reopening

record

102.48(c)

No later than

28 days from

service of

Board

Decision.

For

reopening,

must be filed

promptly

after

discovery of

new evidence

Prior to

Board action

Prior to

Board action

E-File

Extension of due date

for reconsideration,

rehearing, or reopening

record

102.2(c)

Before due

date, but if w/i

3 days of due

date, must be

based on

unforeseen

circumstances

Prior to

Board action

Prior to

Board action

E-File,

hand

delivery,

mail; or

fax to

202-

273-4270

Request for review of

GC compliance

determination

102.53(c)

14 days from

service of

GC decision;

only the

Charging

Party (CP)

can file

Prior to

Board action

Prior to

Board action

E-File

Brief after Section

10(k) hearing

102.90

7 days after

close of

hearing; none

in national

defense

industry

unless by

special

permission

based on good

cause filed

expeditiously

Not allowed

except by

special

permission

N/A

E-File

57

Document Rule Due Date

Answer Date Reply Due

Means

EAJA Application

102.148(a)

Within 30 days

of the date of

the Board

Order

35 days after

service of

application,

unless stayed by

motion to dismiss

or filing of intent

to negotiate.

Then, answer due

35 days after

issuance of Order

denying motion to

dismiss or 35

days after filing

of intent to

negotiate

21 days after

service of

answer

E-File,

hand

delivery,

or regular

mail

Motion to Dismiss

EAJA Application*

102.150(a)

35 days

after service

of

application*

21 days from

service of

Motion*

N/A

E-File,

hand

delivery,

or regular

mail

Request for Review of

Order granting

dismissal of EAJA

Application

102.150(a)

28 days from

date of

Order

dismissing

N/A

N/A

E-File,

hand

delivery,

or regular

mail

Filing of Comments on

Application by party

who is neither GC nor

applicant*

102.150(e)

35 days

from service

of

Application*

N/A

N/A

E-File,

hand

delivery,

or regular

mail

Filing of Comments on

answer to Application

by party who is neither

GC nor applicant*

102.150(e)

21 days

after service

of answer*

N/A

N/A

E-File,

hand

delivery,

or regular

mail

Demand for award

payment

102.155

No deadline,

but applicant

must affirm it

will not seek

court review.

Payment to be

made 60 days

from receipt of

demand

N/A

N/A

E-File,

hand

delivery,

or regular

mail

*

File this document with the Administrative Law Judge after the Board transfers the application to the Judge.

58

APPENDIX C

AVOIDING PROBLEMS

The following list contains helpful hints that will assist parties in avoiding common

problems that may result in delay in Board consideration of the document or rejection

of the document.

1. Acquaint yourself with the applicable Rules and Regulations. Many of the

Board’s Rules are unique to it. Never assume that the Board has the same rules

as the Federal Courts or other Federal agencies. Failure to know the applicable

Board Rules does not excuse a late filing. Most of the applicable Rules for filings

in unfair labor practice cases are found in Sections 102.24 through 102.29,

102.31, and 102.46 through 102.51. Applicable Rules in representation cases

are found in Sections 102.65 through 102.71. The unfair labor practice rules

apply when unfair labor practice cases and representation cases are

consolidated.

2. Send your documents, briefs, and motions that you want the Board to consider to

the Executive Secretary’s Office in Washington, D.C. Inadvertent filing with the

General Counsel, Regional Director, or the Judge’s Division is a common

problem which will delay consideration and may cause rejection of documents

meant to be filed with the Board.

3. If you E-File through the Board’s website and do not receive a receipt from the

Board, check that that your spam blocker will accept messages from nlrb.gov

and/or temporarily disable your pop-up blocker. Remember that the receipt for a

successful e-filing will be sent to the e-mail address entered on the website form

for e-filing.

4. If you encounter problems uploading and transmitting your document using e-

filing, call the Executive Secretary’s Office if the problem occurs before 5:00 p.m.,

Eastern Time. If the problem develops after 5:00 p.m. on the due date, check the

website to determine if the Board’s e-filing system is offline because of scheduled

service, system maintenance, or upgrades. If there is no announcement on the

website, assume the problem is on your end and try to E-File using another

computer with internet access, such as another computer in the office, a home

computer, a computer at a public library, or a computer at a commercial business

service center. User-end problems will not excuse a late filing. These problems

may be avoided if you file before the due date and/or before 5 p.m.

5. Serve all other parties with the document that you file with the Board. Inactivity

by the charging party does not excuse your failure to serve the charging party.

All filings with the Board in representation cases must be served on the Regional

Director as well as the other parties.

59

6. Serve your document on the parties in the same, or faster, manner that you filed

it with the Board. If you intend to accomplish service by facsimile, you must

obtain permission from the party being served. If a party cannot be served by

facsimile or indicates it will not accept facsimile service, telephone the party and

inform them of the substance of your document and provide personal or overnight

service so that it is received by the next business day. For documents that are E-

Filed, serve the other parties by electronic mail (e-mail), if possible. If the other

party does not have the ability to receive electronic service, telephone the party

and inform them of the substance of your document and provide personal or

overnight service so that it is received no later than the next day, or, with the

permission of the party receiving the document, serve the document by facsimile

transmission.

7. File timely. Be aware that some deadlines, especially in representation cases,

require a quick filing or request for an extension.

8. Know how the Board uses these terms:

a. Due date. The date the Board must receive a filing. It is not the date you

send it. A filing is untimely if it is mailed on the due date and arrives after

the due date.

b. Service date. The date the document is served is when it is placed in the

mail. It is not the date you receive it. The Board does not add additional

days for your response even if you were served by mail.

c. Answering brief. A brief responding to exceptions, cross-exceptions, or a

motion. Parties often erroneously call this a reply brief, which has a

specific meaning at the Board. Use “answer” or “answering brief” rather

than “response” or “responsive brief.”

d. Reply brief. A brief responding to an answering brief. Do not call it an

answering brief. Use this term instead of “response” or “responsive brief.

e. Sur-reply brief. A brief responding to a reply brief. Sur-replies are usually

not allowed.

f. Opposition. A response to a request for review. In representation cases,

reply briefs may not be filed except upon special leave of the Board.

9. Be aware that extension requests filed within 3 days of the due date must be

grounded on unforeseen circumstances. That you have to be in court, will be

away on vacation, or have other work are not usually considered unforeseen. An

extension request filed within 3 days of the due date will be granted, however, if

your request accurately reflects that the other parties, including individual

charging parties, have stated that they consent or that they do not object.

10. Extension of a due date applies to all parties who can file the same document.

In unfair labor practice cases, the granting of an extension to file an answering

brief does not serve to extend the time to file cross-exceptions, but the granting of

60

an extension of time to file cross-exceptions automatically extends the time for

filing answering briefs.

11. Unless the Board grants you permission, do not exceed the page limit, which is

50 pages for most documents and 10 pages for reply briefs. Briefs that exceed

these limits will be rejected, although the party will be given the opportunity to file

a revised brief that complies with the limitations.

12. In unfair labor practice cases, a request for permission to exceed the page limit

must be filed no later than 10 days before the due date for the document to be

filed. In representation cases, the request must be filed no later than the date on

which the document is due. The other parties do not share in the grant of

additional pages.

13. Do not include argument in your exceptions if you file a separate brief in support

of exceptions. All argument, including argument about facts or the facts relied on

by the judge, belongs in the brief.

14. Documents attached to your brief that have not been received in evidence may

be stricken on motion by the other parties.

15. Your brief to the administrative law judge is not part of the official record reviewed

by the Board unless you incorporate it into your brief to the Board. However, in

that circumstance, it will be counted toward the page limit.

16. Be aware that a request for review of a Regional Director’s decision and direction

of election or order must be a self-contained document enabling the Board to rule

without the necessity of recourse to the record. You may wish to include excerpts

from the record when filing a request for review.

17. The filing of a request for review does not stay an election. Note that a request

for a stay of the election is rarely granted by the Board.

18. Be sure that you keep the Board advised regarding any changes that may delay

contact with you or delivery of decisions to you, including firm name, street and e-

mail addresses, and phone and facsimile numbers. If you have registered for

E-Service, you may change this information yourself. Please also keep the Board

advised of any similar changes regarding your client.