How the Federal Government Shutdown is Affecting Employers with Labor Issues

By Michael Lebowich and Anthony DiBenedetto

While most of the government shutdown headlines have been focused on Washington politician gridlock and high-profile impacts of the lack of federal funding, employers and employees have been impacted by the absence of virtually all of the National Labor Relations Board's 1,611 employees due to the shutdown.

In many instances, as discussed below, this likely will result in only minor delays in the processing of claims and hiatuses in pending proceedings. However, frustration over the absence of the NLRB was the direct cause of an unsanctioned strike of Boston school bus drivers earlier this week. The wildcat strike began after bus drivers learned that the NLRB was not operating and would not be processing a series of charges the union had filed against the bus company.

During the shutdown only 11 executive-level employees remain active. The board's entire regional staffs have been furloughed. Unable to operate with this minuscule staff, the vast majority of the board's operations are simply on hold. The NLRB has ceased docketing or investigating representation case petitions and unfair labor practice charges.

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As a result, for any issue which the NLRB has exclusive jurisdiction, both employees and employers are without an immediate recourse. This is a primary concern for employers that might be faced with unlawful union picketing and strikes that can be enjoined only by the NLRB seeking a federal injunction and where there is no independent right of action for an employer. However, the NLRB remains available to respond to "an imminent threat to the safety of a human life or the protection of property as a result of a violation of the National Labor Relations Act." Anyone faced with such a situation can contact the board by telephone at (202) 273-1000, fax at (202) 273-4483, or email at [email protected].

The board has extended the deadline for all filings for which an extension is permitted by law. However, the six-month statute of limitations for filing unfair labor practice charge is a statutory provision and cannot be extended. Therefore, anyone facing an impending expiration of the statute of limitations must file a charge with the appropriate NLRB regional office by fax. (The board's very useful website has been shut down along with most of the rest of the agency.) The charging party should keep verification that the fax was submitted in a timely manner.

All unfair labor practices hearings through Oct. 18 have been postponed. Further postponements will occur on each Monday that the federal government remains shut down. If an appropriations bill has not been enacted by Monday, Oct. 14, all unfair labor practice hearings scheduled through the following week, up to Friday, Oct. 25, will be postponed. The board has not indicated when postponed hearings will be heard.

Elections and pre- and post-election hearings scheduled through Oct. 18 have also been postponed. Further postponements will occur on each Tuesday that passes without an enacted appropriations bill. Thus, if the government remains shut down on Tuesday, Oct. 15, all elections and pre- and post-election hearings through Friday, Oct. 25, will be postponed indefinitely.

Once the government funding is restored, we expect there will be an extended period of additional delays and backlogs. We will provide information regarding the NLRB's plans for getting back to business once an appropriations bill is enacted.

Michael Lebowich is a New York-based partner in the Labor & Employment Law Department and co-head of the Labor-Management Relations Group at Proskauer Rose LLP. Anthony DiBenedetto is an associate in Proskauer's Labor & Employment Law Department, resident in the firm's Los Angeles office.