In advance of the expected government shutdown at midnight tonight, the National Labor Relations Board has issued its “Contingency Plan for Shutdown in The Absence of Appropriations.” According to the Plan, only NLRB business previously scheduled for the day of shutdown and which would cause serious disruption to the public if cancelled without notice would be allowed to continue. Of the NLRB's 1,611 employees, 1,600 would be furloughed. The only employees who would not be furloughed would be the five Board members, the Acting General Counsel, the Deputy/Assistant General Counsel, the Executive Secretary, Solicitor, Chief Information Officer and Chief of Security.

The shutdown could have the most dramatic effect on NLRB representation elections scheduled to be held during the shutdown. It appears from the Plan that those elections will not take place as scheduled. This raises a number of important issues, particularly regarding eligibility to vote. For example, the details of representation elections are set either by an agreement between the union and the employer or as a result of a “Decision and Direction of Election” issued by the local NLRB Regional Director. The agreement or Decision always contains a “payroll eligibility date.” In order to be eligible to vote in the election, an employee must be working in a bargaining unit position on or before the payroll eligibility date, which typically is a date several weeks prior to the date of the election. (The employee also has to be employed on the date of the election). If the election has to be rescheduled, will a new payroll eligibility date be set in order not to disenfranchise employees hired after the original eligibility date? This could become a significant issue if the shutdown continues for a substantial period of time and the election has to be rescheduled substantially into the future. Another issue could arise in connection with employees who were employed as of the date of the original election but who have quit, been terminated or laid off by the time of the rescheduled election. Although those employees would have been eligible to vote in the original election (assuming they were working in a bargaining unit position on or before the payroll eligibility date), they should be ineligible to vote in the rescheduled election. When asked about these and other concerns, a local NLRB Agent has told Jackson Lewis “we don’t have any official answers yet.”