In February 2017, the National Labor Relations Board (NLRB) amended Part 102 of its rules and regulations to include a provision governing electronic filing of documents before the board. Section 102.5(c) specifically provides that unless otherwise permitted under the rules and regulations, all documents filed in cases pending before the board must be filed electronically through the board’s website. However, it also provides for the possibility of filing hard copies of documents via mail as it states that any party who files documents in paper format must accompany the filing with a statement explaining why the party does not have access to electronic filing or why filing electronically would impose an undue burden. Finally, it states that documents may not be filed with the board via email without the prior approval of the receiving office.
The New Policy
The Office of the General Counsel has now determined that Section 102.5(c) mandates the use of e-filing for the submission of affidavits, correspondence, position statements, and documentary or other evidence in connection with unfair labor practice and representation cases pending before the NLRB. Accordingly, the general counsel issued a memorandum on October 21, 2019, directing NLRB regional offices to only accept such submissions if they are e-filed consistent with board rules and regulations.
The general counsel noted in its memo that while many parties and attorneys currently use email to submit correspondence, position statements and documentary evidence, email submissions will no longer be accepted and the regional offices have been instructed to not accept any documents submitted directly to regional personnel via email.
The e-filing requirement is effective immediately, but a 90-day grace period is instituted to allow time for the transition to the e-filing system and to ensure compliance. The grace period will expire on January 21, 2020. Any documents submitted to the NLRB via mail or e-mail between now and January 21 will result in a reminder notice alerting the filer of the new e-filing requirement. However, after January 21, any such attempted submissions via mail and e-mail will be rejected.
Limited Exceptions to the Policy
The e-filing requirement does not apply to the filing of the initial unfair labor practice charges or petitions in representation proceedings. While parties are encouraged to use the e-filing system for such submissions, the board will continue to accept charges and petitions via mail, hand delivery, or facsimile.
The e-filing requirement also does not apply to non-party individuals/entities, including statutory employees within the meaning of the National Labor Relations Act and non-employee witnesses. However, a statutory employee who files an unfair labor practice charge or a representation petition will be treated as a party, and will thus be subject to the e-filing requirement.
Finally, any party who does not have necessary access to the board’s e-filing system may still provide a statement explaining the circumstances and why requiring them to e-file would impose an undue burden, pursuant to board rules and regulations. Regional directors have discretion to accept or reject the written statement.
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