Guidance Documents, Manuals, and the Operational Mechanics of the NLRB

06
CHAPTER

Operationalizing the Law: The Ecosystem of Sub-Regulatory Guidance

The National Labor Relations Act (NLRA) serves as the statutory constitution of American labor relations, laying out the broad rights of employees, the obligations of employers and unions, and the structural framework of the National Labor Relations Board (NLRB). However, the statute itself is relatively brief, and while the Board’s decisional case law provides the jurisprudential muscle, it is the agency’s vast ecosystem of guidance documents manuals, memoranda, and procedural guides that constitutes the nervous system. These documents transmit the operational signals that dictate how the law is applied in the daily friction of the workplace. For the practitioner, the student, and the Board agent, these “sub-regulatory” materials are the essential navigational charts, bridging the gap between abstract statutory rights and the concrete procedural steps required to vindicate them.

The Administrative Procedure Act and the "Force of Law" Distinction

To understand the operational weight of these documents, one must first engage with the administrative law principles that govern them. The Administrative Procedure Act (APA) creates a fundamental distinction between “legislative rules” and “general statements of policy.” Legislative rules, such as the Board’s formal election regulations or the “Joint Employer” rule, are promulgated through a rigorous “notice-and-comment” process. They carry the full force and effect of law, binding the agency, the public, and the courts, provided they constitute a reasonable interpretation of the statute under prevailing judicial deference standards.1

In contrast, guidance documents including the Casehandling Manuals and General Counsel (GC) Memoranda are technically classified as “general statements of policy.” Under the APA, these documents are exempt from the notice-and-comment requirement because they do not theoretically establish binding norms. Instead, they are issued to advise the public on how the agency intends to exercise its discretionary authority or to provide internal instructions to agency staff.1

However, this legalistic distinction is often porous in the practical reality of labor relations. For the Field Examiner investigating an unfair labor practice charge, the Casehandling Manual is not a suggestion; it is a rigid set of instructions that must be followed to avoid administrative error. Similarly, for an employer designing a severance agreement, a General Counsel Memorandum declaring certain non-disparagement clauses unlawful functions as the de facto law, as it signals the certainty of prosecution if ignored. Thus, while a court might later rule that a guidance document exceeded the agency’s authority, in the immediate operational context, these documents create binding norms that regulated entities ignore at their peril.1

The tension between the non-binding nature of guidance and its practical authority is a recurring theme in administrative litigation. Critics argue that agencies increasingly use guidance documents to effect substantive changes in the law effectively “legislating by memo” to bypass the slow and cumbersome rulemaking process. This practice allows for rapid policy shifts but creates significant instability, as “law” established by guidance can be rescinded instantly by a new administration, a phenomenon clearly visible in the oscillation of NLRB policy between 2021 and 2025.

The General Counsel's Memoranda: Policy by Directive

The Office of the General Counsel (OGC) operates independently of the Board members under Section 3(d) of the Act, possessing “final authority” over the investigation of charges and the issuance of complaints. This structural independence makes GC Memoranda the primary vehicle for setting the agency’s prosecutorial agenda. These documents allow the General Counsel to signal enforcement priorities, articulate new legal theories, and direct Regional Directors on which cases to prosecute.

The period from 2021 to 2025 illustrates the profound impact of these memoranda. Under General Counsel Jennifer Abruzzo, the OGC issued a series of aggressive memos aimed at expanding the interpretation of Section 7 rights to address modern workplace issues.

The War on Non-Compete Agreements (GC 23-08)

In May 2023, General Counsel Abruzzo issued GC Memo 23-08, titled “Non-Compete Agreements that Violate the National Labor Relations Act.” This document asserted that the proffer, maintenance, and enforcement of non-compete agreements in employment contracts violated Section 8(a)(1) of the Act. The legal theory was that such agreements “chill” employees from exercising their Section 7 rights because they restrict employees’ ability to resign and seek new employment, which is a necessary precursor to leveraging better working conditions.2 The memo directed Regional Offices to seek “make-whole” relief for employees harmed by these agreements, even if the employer had not actively enforced them, arguing that the mere existence of the contract caused economic harm by suppressing mobility.4

"Stay-or-Pay" Provisions (GC 25-01)

Building on the non-compete theory, the General Counsel issued GC Memo 25-01 in late 2024. This guidance targeted “stay-or-pay” provisions contracts requiring employees to repay training costs or other expenses if they separated from employment within a certain period. The memo argued that these provisions functioned as de facto non-competes, locking employees into their jobs and chilling their ability to engage in concerted activity. It established a rebuttable presumption that such provisions were unlawful unless they were narrowly tailored to recover actual costs and had a reasonable amortization period.5

Expansion of Remedies (GC 24-04)

Another critical directive was GC Memo 24-04, which instructed Regions to seek “full remedies” for all victims of unlawful conduct. This included expansive consequential damages for harms that were “direct and foreseeable,” such as credit card interest, medical expenses, or housing instability resulting from an unlawful discharge. Notably, the memo encouraged Regions to seek these remedies even for employees not explicitly named in the underlying charge, provided they were similarly situated victims of the same conduct.7

Video 1:

The 2025 Policy Pivot: The "Cowen Correction"

The fragility of establishing law through memoranda was starkly demonstrated in early 2025. Following a change in the presidential administration, Acting General Counsel William B. Cowen was appointed to lead the OGC. On February 14, 2025, Cowen issued GC Memo 25-05, a document that fundamentally reset the agency’s enforcement posture.

Citing an “unsustainable backlog” of cases and a need to return to “traditional” interpretations of the Act, GC Memo 25-05 rescinded nearly thirty previous memoranda issued by his predecessor.2 The rescissions included:

    • GC 23-08 (Non-Competes): Rescinded effectively immediately, signaling that the OGC would no longer prosecute standard non-compete agreements as independent violations of the Act.9
    • GC 25-01 (“Stay-or-Pay”): Rescinded, removing the presumption of illegality for training repayment agreements.9
    • GC 24-04 (Remedies): Rescinded, indicating a return to standard backpay and reinstatement remedies rather than expansive consequential damages.7
    • GC 24-06 (University Disclosure): Rescinded guidance regarding the intersection of FERPA and the NLRA, suggesting a retreat from aggressive enforcement in higher education.10

This massive rescission event underscores the dual nature of guidance documents. While they allow the agency to be responsive to changing economic conditions and administrative priorities, they lack the durability of regulation. For employers and unions, the “law” regarding non-competes effectively flipped 180 degrees overnight, not because a court ruled or Congress legislated, but because a new memo replaced an old one. This creates a regulatory environment where the “operational law” is highly volatile and dependent on the current occupant of the General Counsel’s suite.7

Operations-Management and Advice Memoranda

Beyond the high-profile GC Memos, the agency relies on Operations-Management (OM) and Advice Memoranda to function.

Operations-Management (OM) Memoranda

OM Memoranda are primarily procedural, directing the Regional Offices on casehandling logistics, budget management, and inter-agency coordination. While often mundane, they can have significant substantive impacts. For example, OM Memos are the vehicle for updating the interest rates applied to backpay awards. In July 2025, OM 25-07 announced that the interest rate for the fourth quarter of fiscal year 2025 would remain at 7 percent, reflecting the IRS underpayment rate.13 These memos also provide critical instructions for “contingency planning” in the event of government shutdowns, detailing which agency functions are “excepted” and can continue (such as the filing of charges) and which must cease.13

Advice Memoranda

Advice Memoranda represent the OGC’s “common law.” When a Regional Office encounters a novel or complex legal issue such as whether a specific group of student-athletes constitutes “employees” under the Act the Region may submit the case to the Division of Advice in Washington, D.C. The Division analyzes the issue and issues a memorandum directing the Region to either issue a complaint or dismiss the charge. 

While these memos are specific to the case at hand, they are frequently published after the case is closed, providing the public with detailed insight into the General Counsel’s legal reasoning. For example, Advice Memoranda have been pivotal in defining the boundaries of “protected concerted activity” in the context of social media usage and political advocacy.14

Table 1:

Memo Type Primary Function Example 2025 Status
GC Memo Substantive Policy GC 23-08 (Non-Competes) Rescinded by GC 25-05
OM Memo Procedural/Logistical OM 25-07 (Interest Rates) Active
Advice Memo Case-Specific Legal Theory Advice in Northwestern Univ. Reference only

Employee Rights Notice Postings

The history of the “Employee Rights” notice illustrates the limits of the Board’s rulemaking authority and the fragmented nature of labor law enforcement in the United States. Unlike many federal employment statutes that contain explicit posting requirements (such as the Fair Labor Standards Act or Title VII), the NLRA does not statutorily mandate that employers post a notice of rights. This gap has led to significant regulatory and judicial conflict.

Video 2:

The Failed 2011 Mandate and NAM v. NLRB

In 2011, the Obama-era Board attempted to rectify what it viewed as a critical information gap in the American workplace. The Board promulgated a rule requiring all employers subject to its jurisdiction to post an 11×17 inch notice informing employees of their Section 7 rights, including the right to organize, bargain collectively, and engage in protected concerted activity.16 The Board relied on Section 6 of the Act, which grants it authority to make “such rules and regulations as may be necessary to carry out the provisions of this Act.”

The rule faced immediate legal challenges from business groups, culminating in the landmark decision National Association of Manufacturers (NAM) v. NLRB (D.C. Cir. 2013). The D.C. Circuit vacated the rule, delivering a sharp rebuke to the Board’s assertion of proactive authority. The court’s reasoning centered on two primary arguments 16:

    1. Compelled Speech and Section 8(c): The court found that requiring employers to post a government-drafted notice on their private property violated Section 8(c) of the Act. Section 8(c) protects an employer’s right to express views, argument, or opinion and conversely, the right to remain silent provided such expression contains no threat of reprisal or promise of benefit. By mandating the poster and making the failure to post it an unfair labor practice, the Board was effectively compelling speech. The court noted that the Board’s own case law prohibits it from treating lawful speech (or silence) as evidence of an unfair labor practice.19
    2. Lack of Statutory Authority: The court emphasized that the NLRB is structurally a “reactive” agency. Its core functions are to conduct elections upon petition and to adjudicate unfair labor practices upon charge. Unlike the Department of Labor, which has broad investigatory and regulatory powers, the Board lacks the authority to issue affirmative, proactive regulations requiring notice posting in the absence of a specific pending case.18 The court held that if Congress had intended for the Board to mandate notice posting, it would have included such a provision in the statute, as it did in the Railway Labor Act.

Executive Order 13496: The Federal Contractor Exception

While the NAM decision insulated the general private sector from a posting mandate, a significant portion of the workforce remains covered by a parallel requirement rooted in federal procurement law. Executive Order 13496, signed by President Obama in 2009, requires federal contractors and subcontractors to post a notice informing employees of their rights under the NLRA.20

Policy Rationale and Legal Basis

The Executive Order relies on the President’s authority under the Federal Property and Administrative Services Act. The rationale is economic: the government has a proprietary interest in the efficient performance of its contracts. Labor unrest, strikes, and disruptions are more likely when workers are uninformed of their legal dispute resolution mechanisms. Therefore, informing workers of their rights promotes industrial peace and ensures the timely completion of government contracts.22

Mechanics of Compliance

The notice required by EO 13496 is substantively similar to the NLRB’s voluntary poster. It lists the rights to form unions, bargain, and act in concert, and it provides examples of unlawful conduct by employers and unions.

    • Physical Posting: The notice must be posted in conspicuous places where notices to employees are customarily posted.
    • Electronic Posting: Recognizing the digital nature of modern work, the regulations require that if a contractor posts other notices to employees electronically (e.g., on an HR intranet or portal), the NLRA notice must also be posted electronically. The link to the notice must be as “prominent” as other links; it cannot be hidden in an obscure sub-menu.20

Enforcement

Crucially, enforcement of EO 13496 lies with the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP), not the NLRB. Sanctions for non-compliance can be severe, including the cancellation of the contract and debarment from future federal contracting. This creates a bifurcated regime where posting is voluntary for a local retail store but mandatory for a defense contractor.23

Voluntary Posting as a Strategic Tool

For private employers not subject to EO 13496, the posting of the NLRB’s “Employee Rights” notice is voluntary. However, it is often recommended by labor counsel as a defensive strategy.

    • Good Faith: Posting the notice can be cited as evidence of the employer’s good faith compliance with the Act. In the event of a ULP charge alleging anti-union animus, the presence of the poster can help rebut the inference that the employer is hostile to Section 7 rights.
    • Remedial Posting: It is important to distinguish the voluntary general rights poster from the mandatory remedial notice required in settlement agreements. When an employer settles a ULP charge, the Board almost invariably requires the posting of a specific “Notice to Employees” for 60 consecutive days. This notice details the specific violations alleged and the affirmative steps the employer is taking to remedy them (e.g., “WE WILL reinstate Jane Doe”). Failure to post this remedial notice is a breach of the settlement agreement and can lead to enforcement proceedings.25

Sunshine Act Notices: The Illusion of Transparency

The Government in the Sunshine Act (5 U.S.C. § 552b) mandates that federal agencies headed by a collegial body such as the five-member NLRB must hold their meetings in public.27 The statute is designed to ensure that the public can observe the “deliberations” that determine agency policy. However, the operational reality of the NLRB involves a complex interplay of statutory definitions and exemptions that results in the vast majority of the agency’s substantive work occurring behind closed doors.

The "Notational Voting" Loophole

The Sunshine Act applies only to “meetings,” defined as the deliberations of at least a quorum of members where such deliberations “determine or result in the joint conduct or disposition of official agency business”.27 This definition contains a critical loophole utilized by the Board: “notational voting.” 

Notational voting is a process where a draft decision or order is circulated to the Board members individually in writing. Members review the document and cast their votes or propose edits via written memoranda or electronic communication, without ever physically gathering in a room to deliberate simultaneously. Courts have consistently held that this sequential voting process does not constitute a “meeting” under the Sunshine Act because there is no simultaneous exchange of views.28 

This mechanism allows the Board to adjudicate hundreds of unfair labor practice and representation cases annually without holding a single public meeting. While efficient, it renders the decision-making process opaque to the public, who see only the final published decision and not the internal debates that shaped it.

The Statutory Exemptions

When the Board does hold meetings typically to discuss rulemaking or significant administrative matters it often invokes one of the ten exemptions provided in the Sunshine Act to close the meeting to the public.30 The most relevant exemptions for the NLRB include:

Exemption 10: Adjudication and Litigation

This is the most frequently cited exemption. It allows the closure of meetings that concern “the agency’s participation in a civil action or proceeding” or “the disposition of a particular case of formal agency adjudication”.32 Because the NLRB’s primary function is quasi-judicial deciding specific cases like Cemex or Amazon this exemption effectively covers the core of the agency’s work. It allows Board members to deliberate on case outcomes in private, protecting the integrity of the judicial process from outside pressure.

Exemption 9: Premature Disclosure

This exemption allows the closure of meetings where public disclosure would “be likely to significantly frustrate implementation of a proposed agency action”.33 This is often used when the Board is discussing litigation strategy, such as whether to authorize the General Counsel to seek a Section 10(j) injunction in federal court. Publicizing such a discussion in advance could alert the respondent, potentially allowing them to dissipate assets or moot the injunction before it can be filed.

Exemption 2: Internal Personnel Rules

This exemption covers matters relating solely to the internal personnel rules and practices of the agency, such as staffing decisions or internal discipline.31

The Function of Sunshine Act Notices

Despite these broad exemptions, the Board is required to publish “Sunshine Act Notices” in the Federal Register to inform the public of upcoming meetings. These notices serve as a valuable intelligence source for practitioners. 

A notice announcing a meeting to discuss “internal casehandling guidelines” or “budgetary allocations” can signal upcoming shifts in enforcement priorities. For example, during periods of government funding lapses, the Board publishes notices regarding “contingency plans,” which are then operationalized through OM Memoranda.13 Furthermore, the Sunshine Act requires the agency to maintain transcripts or minutes of closed meetings. While these are often heavily redacted under the same exemptions, they can occasionally be obtained through FOIA requests to shed light on the agency’s administrative logic.29

Video 3:

Rules and Regulations & Manuals: The Operational Bibles

While the Code of Federal Regulations (CFR) contains the Board’s binding procedural rules, the NLRB Casehandling Manuals (CHM) are the definitive “bibles” for Board agents. These manuals provide the granular, step-by-step instructions for processing cases. They are updated periodically to reflect changes in case law and GC policy. For the practitioner, familiarity with these manuals is arguably more important than knowledge of the statute itself, as they dictate the behavior of the agent across the table.

Part 1: Unfair Labor Practice (ULP) Proceedings

Part 1 of the CHM governs the processing of ULP charges from the initial filing to the final disposition. It covers investigation techniques, credibility resolutions, and settlement procedures.

Affidavits and the "Jencks" Rule

The Manual provides detailed protocols for the taking of affidavits during an investigation. Agents are instructed to interview witnesses in person whenever possible, although recent updates have allowed for video testimony in certain circumstances.25 The manual dictates that affidavits must be reviewed by the witness, corrected, and sworn to under oath. 

Crucially, the Manual outlines the strict confidentiality of these affidavits. Under the Board’s rules (and the Supreme Court’s Jencks decision), affidavits provided by witnesses are not discoverable by the respondent during the investigation. They are only produced at an administrative hearing after the witness has testified on direct examination. This rule is designed to protect employees from retaliation and intimidation. The Manual instructs agents to explicitly assure witnesses of this confidentiality to secure their cooperation.25

Settlement Mechanics

The Manual distinguishes between three types of settlements, each with different enforcement mechanisms 34:

    1. Non-Board Adjustments: These are private agreements between the charging party (usually a union or employee) and the respondent (employer). The Board is not a party to the agreement but must approve the withdrawal of the charge. The Manual instructs agents to ensure the settlement effectuates the purposes of the Act, but the Board does not police compliance.
    2. Informal Board Settlements: The Regional Director is a signatory to the agreement. These settlements do not involve a Board order or court decree. They typically require the posting of a notice and the payment of backpay. If the respondent breaches the agreement, the Region must revoke the settlement and issue a complaint to litigate the underlying charge.
    3. Formal Board Settlements: Used in cases of egregious or repeat violations, or where there is a history of non-compliance. These agreements provide for the issuance of a Board Order and a consent judgment from a U.S. Court of Appeals. A breach of a formal settlement is contempt of court, carrying immediate judicial sanctions.

2025 Settlement Policy Shift

The 2025 rescission memo (GC 25-05) significantly altered settlement policy. It rescinded previous guidance (GC 25-02) that had required settlements to narrowly address “public rights” and restricted the use of non-admission clauses. The new guidance encourages “harmonization” and broader settlement authority, signaling a return to more traditional practices that favor case closure and voluntary resolution over strict ideological adherence.7

Part 2: Representation Proceedings

Part 2 of the CHM guides the conduct of elections. This volume has seen the most turbulence in recent years due to the oscillation of election rules between different administrations.

The Return of the Blocking Charge

A central feature of Part 2 is the handling of “Blocking Charges” ULP charges filed to halt an election. Historically, a ULP charge would “block” an election on the theory that a free and fair vote is impossible amidst unfair labor practices.

    • 2020 Policy: The Trump-era Board implemented a “vote-and-impound” rule, allowing elections to proceed despite pending charges to prevent unions from filing meritless charges solely to delay decertification.36
    • 2024 “Fair Choice” Rule: The Biden-era Board rescinded the 2020 changes, restoring the Regional Director’s authority to delay elections if a ULP charge has merit. The 2024 “Fair Choice – Employee Voice” rule prioritizes the “uncoerced choice” of employees over speed.
    • Operational Impact: The Manual now instructs agents to investigate the “blocking” merit of a charge immediately. If the charge is found meritorious, the election is stayed. This restores a powerful strategic tool for incumbent unions facing decertification, allowing them to freeze the process by alleging employer misconduct.37

The Ballot Count Ritual

The Manual prescribes the ballot count process with forensic precision to ensure the integrity of the vote 40:

    • Chain of Custody: Detailed records must be kept of who handles the ballots. Envelopes containing ballots must be stored in the office safe when not in use.
    • The Tally: The count is conducted publicly in the presence of party observers. Agents use specific Tally Sheets to record votes.
    • Void and Challenged Ballots: The Manual provides strict criteria for voiding ballots (e.g., if the intent is unclear or the voter signs their name, compromising secrecy). Challenged ballots (e.g., voters whose eligibility is disputed) are placed in a “challenged” envelope, which is then placed in a second envelope with the voter’s name. This “double envelope” system ensures the vote remains secret unless the challenge is resolved and the vote becomes determinative.40
    • COVID-19 Protocols: Recent updates to the manual and election protocols include provisions for manual elections during health crises. These include the use of plexiglass barriers, single-use pencils, and social distancing requirements during the count to protect Board agents and observers.42

Part 3: Compliance Proceedings

Part 3 deals with the “cleanup” phase enforcing Board orders after litigation. This volume contains some of the most technically complex instructions in the agency.

Backpay and the "Daily Compounding" Rule

One of the most significant operational details in Part 3 is the calculation of interest on backpay. Following the Board’s decision in Kentucky River Medical Center (2010), the Manual instructs that interest on backpay is compounded daily, not annually. This accounting method significantly increases the liability for respondents in long-running disputes, as interest accrues rapidly on the principal amount.44

Interest Rate Fluctuations

The interest rate applied to backpay is not fixed; it is adjusted quarterly based on the IRS underpayment rate. The Manual requires Compliance Officers to apply the specific rate applicable to each quarter in which backpay accrued. For example, the rate for the fourth quarter of 2024 was 8%, but it dropped to 7% for the first quarter of 2025. Agents must use complex spreadsheets to apply these fluctuating rates across the duration of the backpay period.13

Table 2:

Quarter Interest Rate Authority
Q4 2024 (Oct-Dec) 8% OM 24-XX
Q1 2025 (Jan-Mar) 7% OM 25-04
Q2 2025 (Apr-Jun) 7% OM 25-06
Q3 2025 (Jul-Sep) 7% OM 25-07

Notice Posting Mechanics

In the compliance phase, notice posting is mandatory. The Manual specifies that the remedial notice must be posted for 60 consecutive days. If the employer has a website, intranet, or uses email to communicate with employees, the “electronic posting” rules apply. The Manual directs agents to verify that the digital notice is distributed to all employees and posted prominently on the digital platform.25

Steps for Filing a Petition: The Gateway to Representation

The filing of a petition is the “trigger” for the Board’s representation machinery. While the process is designed to be accessible to workers without counsel, the forms (502 and 505) contain procedural tripwires that can have severe legal consequences if mishandled.

Form 502: The Petition

Form 502 is the universal instrument for initiating a representation case. It is used for Certification (RC), Decertification (RD), and Employer (RM) petitions.49

Unit Description Pitfalls

The most critical field on Form 502 is the “Unit Involved” (Section 5). The petitioner must describe the “Included” and “Excluded” employees. Ambiguities here can lead to litigation or dismissal. Common errors include failing to specify professional/non-professional status or geographical scope. The Manual advises petitioners to use specific language, such as “All full-time and regular part-time production and maintenance employees employed by the Employer at its facility”.50

The Showing of Interest

The petition must be accompanied by a “showing of interest” (usually authorization cards or a petition) from at least 30% of the employees in the unit. The Manual clarifies that this check is strictly administrative. The employer has no right to inspect the cards or challenge their validity at the hearing; the Board Agent verifies them against the payroll list in camera. This protects the identity of the union supporters from employer retaliation.52

Form 505: The Statement of Position and the "Preclusion" Rule

Introduced in the 2014 Election Rule, Form 505 (Statement of Position) is a mandatory filing for the non-petitioning party (usually the employer). It is typically due by noon on the business day before the hearing opens, creating a very tight timeline for response.54

The Preclusion Trap

The most significant aspect of Form 505 is the “Preclusion” rule found in 29 C.F.R. § 102.66(d). The regulations state that any issue not raised in the timely filed Statement of Position is waived and cannot be litigated at the hearing or raised subsequently.51

This rule transforms the pre-election phase from an investigatory process into a high-stakes pleading stage. If an employer believes that “Lead Hands” are supervisors and should be excluded from the unit, they must list “Lead Hands” as a proposed exclusion in Form 505. If they fail to check that box or list that classification, they are legally barred from presenting evidence on supervisory status at the hearing. The “Lead Hands” will be included in the unit by default, regardless of their actual duties.54

The only exception to this rule is the Board’s statutory subject matter jurisdiction, which cannot be waived.51 

The Voter List (Excelsior List)

Form 505 also triggers the requirement to provide a preliminary list of employees (names, job titles, shifts, locations). Failure to provide this list can preclude the employer from contesting the appropriateness of the unit entirely. The Board views the list as essential for the union to communicate with employees and for the Region to process the petition.54

Service and E-Filing

The Board has largely moved to a mandatory E-Filing system for these documents. The “Steps for Filing” guide emphasizes that while the petition may be filed electronically, the original showing of interest (wet signatures) historically had to be physically delivered to the Region within two days to verify authenticity. However, recent guidance (GC Memo 15-08) has liberalized the use of electronic signatures, provided they meet certain authentication standards.49 The petitioner must also serve the petition and a blank copy of Form 505 on all other parties. Failure to serve the blank form is a procedural defect that can delay the processing of the case, as it deprives the other party of the notice required to file their Statement of Position.49

References

    1. Administrative Procedure Act, 5 U.S.C. § 553; Congressional Research Service, “Agency Use of Guidance Documents,” R44468 (2016).
    2. NLRB General Counsel Memo 23-08, “Non-Compete Agreements that Violate the National Labor Relations Act,” May 30, 2023.
    3. NLRB General Counsel Memo 23-08, supra, at p. 2.
    4. NLRB General Counsel Memo 23-08, supra, at p. 5.
    5. NLRB General Counsel Memo 25-01, “Remedying the Harmful Effects of Non-Compete and ‘Stay-or-Pay’ Provisions that Violate the National Labor Relations Act,” October 7, 2024.
    6. See generally, NLRB Press Release, “General Counsel Abruzzo Issues Memo on Seeking Remedies,” October 7, 2024.
    7. NLRB General Counsel Memo 24-04, “Securing Full Remedies for All Victims of Unlawful Conduct,” April 8, 2024.
    8. NLRB General Counsel Memo 25-05, “Rescission of Certain General Counsel Memoranda,” February 14, 2025.
    9. NLRB General Counsel Memo 25-05, supra, at Attachment A.
    10. NLRB General Counsel Memo 24-06, “Clarifying Universities’ and Colleges’ Disclosure Obligations,” April 2024 (Rescinded).
    11. Littler Mendelson, “Acting NLRB General Counsel Rescinds Controversial Memoranda,” February 15, 2025.
    12. Ogletree Deakins, “Rescinded Guidance: Unpacking NLRB Acting General Counsel Cowen’s Policy Overhaul,” February 18, 2025.
    13. NLRB Operations-Management Memo 25-07, “Board’s Interest Rate Remains at 7 Percent for the Fourth Quarter, Fiscal Year 2025,” July 7, 2025.
    14. NLRB Advice Memorandum, Case No. 20-CA-328050, Fresenius Kidney Care, May 16, 2024.
    15. Littler Mendelson, “Three’s a Charm? NLRB’s Acting General Counsel Issues Third Guidance Document on Social Media,” May 30, 2012.
    16. National Association of Manufacturers v. NLRB, 717 F.3d 947 (D.C. Cir. 2013).
    17. NAM v. NLRB, supra, at 954.
    18. NAM v. NLRB, supra, at 958.
    19. 29 U.S.C. § 158(c).
    20. Executive Order 13496, “Notification of Employee Rights Under Federal Labor Laws,” 74 FR 6107 (Jan. 30, 2009).
    21. 29 C.F.R. Part 471.
    22. Exec. Order 13496, § 1.
    23. Department of Labor, “Fact Sheet: Obligation of Federal Contractors to Notify Employees of Their Rights,” OLMS.
    24. 41 C.F.R. § 60-1.4.
    25. NLRB Casehandling Manual (Part 1) Unfair Labor Practice Proceedings, § 10134, June 2025.
    26. NLRB Casehandling Manual (Part 3) Compliance Proceedings, § 10506, Oct. 2020.
    27. Government in the Sunshine Act, 5 U.S.C. § 552b(a)(2).
    28. Communications Systems, Inc. v. FCC, 595 F.2d 797 (D.C. Cir. 1978).
    29. Administrative Conference of the United States, “Government in the Sunshine Act Basics,” Bulletin No. 017.
    30. 5 U.S.C. § 552b(c).
    31. Federal Reserve Board, “Sunshine Exemptions,” List of 10 Exemptions.
    32. 5 U.S.C. § 552b(c)(10).
    33. 5 U.S.C. § 552b(c)(9).
    34. NLRB Casehandling Manual (Part 1), supra, § 10060 (Affidavits).
    35. NLRB General Counsel Memo 25-02 (Rescinded); See GC Memo 25-05.
    36. NLRB Election Protection Rule, 85 FR 18366 (April 1, 2020).
    37. NLRB Fair Choice – Employee Voice Final Rule, 89 FR 60600 (July 26, 2024).
    38. Jackson Lewis, “NLRB’s Fair Choice-Employee Voice Final Rule,” Sept. 2024.
    39. NLRB Casehandling Manual (Part 2) Representation Proceedings, § 11730 (Blocking Charge Policy), Sept. 2025.
    40. NLRB Casehandling Manual (Part 2), supra, § 11340 (Tally of Ballots).
    41. NLRB Casehandling Manual (Part 2), supra, § 11340.9 (Challenged Ballots).
    42. Labor Relations Update, “NLRB General Counsel Announces Suggested Protocols for Manual Elections,” July 10, 2020.
    43. NLRB General Counsel Memo 20-10, “Suggested Protocols for Manual Elections,” July 2020.
    44. NLRB Casehandling Manual (Part 3), supra, § 10565.
    45. Kentucky River Medical Center, 356 NLRB 6 (2010).
    46. IRS Revenue Ruling 2024-25 (Q1 2025 Rates).
    47. NLRB Operations-Management Memo 25-04, “Board’s Interest Rate,” Jan. 17, 2025.
    48. NLRB Casehandling Manual (Part 3), supra, § 10508.
    49. NLRB Form 502, “RC Petition,” Instructions (2018).
    50. NLRB Guide for Hearing Officers, p. 14.
    51. 29 C.F.R. § 102.66(d).
    52. NLRB Casehandling Manual (Part 2), supra, § 11020.
    53. National Labor Relations Act, § 9(c)(1).
    54. NLRB Form 505, “Statement of Position,” Instructions (4-15).
    55. NLRB Bench Book, § 11210 (Preclusion).
    56. NLRB Election Rule 2014, 79 FR 74308.