Inspection Report No. OIG-INS-23-02-03
Timeliness of Posting Board Decisions

UNITED STATES GOVERNMENT
National Labor Relations Board
Office of Inspector General

Memorandum

August 8, 2002

To: David B. Parker
Director of Information

Lester A. Heltzer
Acting Executive Secretary

Gloria Joseph
Director of Administration

From: Jane E. Altenhofen
Inspector General

Subject: Inspection Report No. OIG-INS-23-02-03: Timeliness of Posting Board Decisions

We initiated this inspection to ascertain the timeliness in which the Board's decisions issued by the National Labor Relations Board (NLRB or Agency) reach the public via the Web site, and to identify possible causes for delay in this process. No written time standards exist in law, regulations, or Agency policy on the number of days in which the Agency should post a decision on the Web site. Based on the normal process to post decisions 7 to 11 days after the date of the decision, we calculated that Board decisions should be posted, on average, in 9 days.

We found that the average time for a Board decision to be posted is 16 days, primarily due to the high proportion of decisions that were assigned issue dates rather than following the normal process. Two time periods were built into the process of posting a Board decision to the Web site that could be eliminated or reduced. One suggestion that could be implemented immediately is to begin posting Board decisions on the Web site as soon as they are made public. This would make a significant improvement in providing parties and the public with quick, low-cost access to Board decisions.

SCOPE

We collected information regarding the process the Agency follows when posting Board decisions to the Web site as of June 28, 2002. We interviewed personnel in the Office of Executive Secretary, the Library and Administrative Services Branch - Division of Administration, and the Division of Information. We obtained schedules of dates relaying the movement of decisions between the Docket Order and Issuance Section (Order Section) - Office of Executive Secretary, the Editorial and Publications Services Section (Editorial Section) - Division of Administration, and the Government Printing Office (GPO).

We compiled a listing of 235 decisions contained within Decisions and Orders of the NLRB, Volumes 336 and 337, as of June 28, 2002. These decisions served as the universe for our review. For some analysis, 24 officially corrected decisions and one decision that appeared to be updated 189 days after it was issued, but did not have an official correction, were not included. We reviewed the Freedom of Information Act (FOIA) 5 U.S.C. 552 (as amended), NLRB policy, NLRB Rules and Regulations, and NLRB Union Agreements for applicable guidance.

We conducted this review in June through August 2002. The review was conducted in accordance with the Quality Standards for Inspections issued by the President's Council on Integrity and Efficiency.

BACKGROUND

The process of posting Board decisions to the Agency Web site primarily involves the Office of the Executive Secretary, the Editorial Section, and the Division of Information. Once the Board Members have agreed on a decision, the originating attorney incorporates any comments into a conformed copy and prepares a case issuance form (green sheet) that is sent to the Executive Secretary with the necessary related documents. The green sheet records key dates for processing the decision.

The Executive Secretary sends the decision to the Editorial Section to be edited and formatted. The originating attorney reviews the final document and approves the conformed copy of the decision for issuance. Except when the Executive Secretary assigns an issue date, the Editorial Section dates the decision two working days after the originating attorney's final approval. The Reproduction Unit usually makes about 330 copies of the final decision for internal and public distribution.

The Order Section mails and/or faxes the decision to all parties, including the Regional Office, normally on the date of the decision or the day after, and prepares a Docket Sheet with the decisions mailed that day. The Division of Information releases the decision to the public three working days after the date of the Docket Sheet.

The Editorial Section converts the Microsoft Word file of the decision to Portable Document Format (PDF) and Hypertext Markup Language (HTML). Each Wednesday, the Editorial Section sends the formatted decisions for the prior week to a File Transfer Protocol (FTP) server at GPO, the entity that hosts the Agency's Web site. The Division of Information prepares a Weekly Summary of decisions issued the prior week and sends it to GPO on Wednesday or, occasionally, on Thursday. GPO uploads the full decisions, links the decisions to the Weekly Summary, and posts the decisions and the Weekly Summary to the NLRB Web site, usually on Friday.

TIMELINESS

According to FOIA and Agency regulations, all final orders made in the adjudication of cases created on or after November 1, 1996, will be made available to the public by computer telecommunications or by other electronic means. No written time standards exist in law, regulations, or Agency policy on the number of days in which the Agency should post a Board decision on the Web site. Based on the normal process to post decisions 7 to 11 days after the date of the decision, we calculated that Board decisions should be posted, on average, in 9 days.

The decisions for 210 cases were posted on the Web site, on average, 16 days after the decision date. The date of the Board decision, a significant date in determining timeliness, was derived in two distinct ways. In the normal process, the decision was dated when it was ready to be mailed to the parties. In the extraordinary process, the decision was assigned a date reflecting a Board Member's departure, the end of a reporting period, or the end of the fiscal year. The assigned date generally preceded the conformance, formatting, and/or final review necessary before mailing. The result of this practice is that the overall average for posting the decisions was much higher than the expected 9 days.

The number of decisions issued with assigned dates was close to the number of decisions issued via the normal process. As shown in the following chart, about half of the decisions were assigned dates on the day before and day of a Board Member's departure, or on the last three and first days of the fiscal years.

Case Dates Number of Decisions Percentage of Total Decisions Extenuating Circumstances Surrounding Dates
12/19/01 - 12/20/01 34 16% Departure of Board Member
9/28/01 - 10/1/01 66 32% End of Fiscal Year
Remaining Dates 110 52% Normal Process

The impact of assigning decision dates was to elongate the time before posting Board decisions. The 110 decisions following the normal process took, on average, 10 days from the issue date to posting on the Web site. The 100 decisions with assigned dates took, on average, 23 days from the issue date to posting on the Web site. As shown in the following chart, no significant differences existed in the time needed for each of the functions required prior to posting the decision. The surge of cases to the Editorial Section caused only a slight delay in formatting the reviews. Once the formatting was completed, no significant differences occurred in the time required for proofreading, reproduction and mailing, or for GPO to post the decisions.

Function Days-Normal Days-Assigned
Conformance 6 1
Formatting 1.2 5
Proofreading 1 2
Reproduction/mailing 3 4
Posting 2.5 1.7

The increase in posting time (10 to 23 days) mostly occurred because functions that were normally done before the issue date (conformance, formatting, proofreading, and reproduction) were instead done after the issue date. The originating attorney approved the 100 cases with assigned dates, on average, eight days after the date of the decision, rather than two days before the date of the decision.

A significant effect of the assigned dates is that the parties were notified days after the decision (on average 14 days) rather than on the day of the decision. The delay can be a problem for a party seeking an award of fees and other expenses pursuant to the Equal Access to Justice Act. The Act and NLRB regulations state that an application must be filed no later than 30 days after the entry of the Board's final order. The beginning date cannot be adjusted to a later date. The date of the Board decision is the entry of the Board's final order, and the Agency has no authority to use another date or extend the time. Long Island Radio Co. v. NLRB, 841 F.2d 474, 477 (2nd Cir. 1988).

A further effect concerns orders that often accompany a decision. Some orders contain deadlines that start with the date of the decision. For example, the employer is given 14 days to reinstate the employee and/or 14 days to remove from the employee files any reference to the unlawful discharge. These order dates are not adjusted when the decision date is assigned rather than postdated. In many of the decisions with assigned dates, the party cannot possibly meet the deadlines as ordered. Even if the Agency does not attempt to enforce actions that fail to meet the ordered deadlines in these circumstances, we believe this is a poor practice.

We also believe that it is inappropriate to have two systems for dating Board decisions. Using two systems to date decisions gives the impression that dates are governing the process rather than Board Members deciding cases in a business-like manner. A single process could select any date after the Board Members' approval as the date of the decision. We believe that a date after approval by the originating attorney is most reasonable. When conforming the decision, the originating attorney is responsible for incorporating all changes and obtaining concurrence for any substantive changes noted by the Board Members. Dating the decision after it is conformed reduces the possibility that a substantive change might be overlooked.

The Executive Secretary stated that in a perfect world the Board would have just one system for dating decisions but the reality is that the need to issue decisions at critical times takes precedence over the normal process. He added that the Agency uses the mailing date as the date of service to eliminate timing problems, such as for requests for reconsideration and court filings. He emphasized that it is legal to assign dates in different ways, the Bar knows this occurs, and the Board has not received any complaints.

PROCEDURAL STEPS

Two time periods were built into the process of posting a Board decision to the Web site. The first is 3 days before the public release. A concurrent period is 7 to 11 days to post the decision on the Web site. The time for both steps could be eliminated or reduced.

    3-Day Rule

After a Board decision is mailed or faxed to the parties, it is held for 3 working days before being made available to the public. The Division of Information then makes the public distribution and the Editorial Section sends the decision to the GPO file server. The 3-day rule was instituted out of deference to the parties in order to allow all parties time to receive the decision at the same time before the public release.

In practice, all parties do not receive the decision at the same time if for no other reason than the vagaries of the mail. Law firms often have local Washington addresses to facilitate getting the decision quickly whereas copies mailed to the West Coast can take four days. The Regional Offices are sent a copy of the decision as a party, but report getting calls from other parties about decisions before receiving a copy. We observed that the mailing labels for the Regional Office do not include the name of the attorney handling the case and noted that this may contribute to a delay when the decision reaches the Regional Office. The Executive Secretary had no objection to adding the name of the Regional Attorney and/or the attorney assigned to the case, but thought the problem might relate more to mail handling within the Regional Offices. The Library and Administrative Services Branch recently initiated a review of mail delivery to determine whether mail service is a problem.

The most effective way to make a Board decision available to the parties at the same time would be to post it on the Web site or send it via e-mail. NLRB regulations state that the final orders shall be served upon all parties personally, by registered or certified mail, by telegraph, or by leaving a copy at the principal office or place of business. The Internet and e-mail are now more efficient means of service and distribution. The objection that some parties may not have access to the Internet is not credible with the proliferation of computers. Additionally, a party could request to be notified by hard copy when exceptions are filed with the Board.

The Executive Secretary and Director of Information agreed in principle that serving parties by posting the decisions on the Web site was a good idea, but said there are several concerns that need to be addressed. The Executive Secretary has responsibility for serving notice, but he does not have authority over the Editorial Section that is located on the General Counsel's side of the Agency and is responsible for formatting the decisions. Similarly, the Director of Information has no control over GPO to ensure that the decisions would not be posted prematurely and/or actually be posted on a specific day and time. The decision to serve parties by posting the decisions on a Web site needs to be part of an overall evaluation, currently underway, of all documents posted to the Agency's web site and the best manner for operating the Agency's Web site.

    7 to 11-Days to Post

Decisions were bundled and sent to GPO on a weekly basis and posted two days later; this was normally 7 to 11-days after the date of the decisions. The Editorial Section sent the decision to GPO on the Wednesday of the following week - three working days after the last possible decisions were issued on Friday. The decisions were not sent earlier to ensure that none were inadvertently released before the public release date.

We found that GPO posted the 210 decisions, on average, within 2 days from the date the Editorial Section sent the files. The postings usually occurred on a Friday, per current instructions, or on a Monday. A few decisions were posted up to 15 days after the decisions were sent to the GPO server.

The Board decisions could be sent to GPO on the day of public release and posted immediately thereafter, which would eliminate the objections associated with posting as a method for serving notice to parties. Such a practice would allow the Regional Offices and members of the public who are looking for the full text to have quicker access. The full text could be linked to the Weekly Summary per the current practice. If the 235 decisions in our universe were posted on the Web site the day they became public, GPO would have had to post one or more Board decisions on approximately 70 days compared to the 27 days when posted on a weekly basis. According to the GPO representative, posting the full texts more often would not increase the costs to maintain the Web site.

If the decisions were made available immediately to the public via the Web site, the Agency could substantially decrease reproduction and mailing costs. The Copy Center makes about 330 copies of each decision. The Order Section receives 90 copies for distribution to the parties and Board Members. The Division of Information receives 35 copies for public distribution. About 205 copies are sent to the main distribution list that includes all the Regional Offices. Most of the public distribution is done via regular mail. The expenses for staff time, supplies, and postage could be significantly reduced if the decisions were posted promptly in lieu of mailings.

The Executive Secretary stated that this change could be made immediately upon coordination between his office, the Editorial Section, and the Division of Information.

    Prior Proposal

In a May 1994 memorandum, the Director of Information proposed transmitting the Board's decisions electronically for a 2-month test period. The memoranda stated the many advantages of making decisions available electronically, including:

The Director has since met with Agency officials several times on how to speed up the process to post decisions. While agreeing that decisions could be posted sooner, he cautioned that GPO's response that they could post more often at no extra cost may not work. GPO has limited staff and the interagency agreement does not include time requirements, so the Agency could not rely on GPO to post decisions the day after receipt. He also commented that many other documents are posted on the Web site, such as Administrative Law Judge decisions and General Counsel memoranda, which could also benefit from electronic distribution.

CORRECTIONS

The decisions are subject to formal revision before publication in the Board volumes of NLRB decisions. A notice with each opinion requests readers to notify the Executive Secretary of any typographical and other formal errors. The Editorial Section may also become aware of and correct such errors. If non-substantive errors are identified after the Board decision is posted, the Agency may choose to issue a corrected version and repost the decision on the Web site. The decision on the Web site may not be reposted if a corrected version is not issued.

We excluded 24 decisions, 10 percent of our universe, because corrected decisions were later issued. The corrections were for typographical errors; misnumbered footnotes; and names, substantive language, or omitted numbers. The cases involved 21 attorneys from five Board Members' offices and the Office of the Solicitor.

The Director of Administration noted that 15 corrections were typographical errors made by the Editorial Section and 9 corrections were substantive language changes made by Board attorneys. She attributed the unusually high error rate to the high volume of decisions received at the end of the fiscal year, the Chairman's departure, and end of calendar year requirements for the Government Performance and Results Act - all of which occurred during the processing of Volumes 336 and 337.

GPO charges the Agency $103 per hour for all work to maintain the Web site. Every case reposted doubles the necessary cost.

SUGGESTIONS

We have various suggestions that apply to different time periods, and require varying degrees of coordination between the Executive Secretary, Director of Information, and Director of Administration. We suggest that all three officials:

  1. Take steps to post Board decisions on the Web site on the day the decisions become public and eliminate most non-party mailings to the public and Regional Offices;
  2. Include the title Regional Attorney and/or the name of the attorney assigned to the case on decisions mailed to the Regional Office as a party;
  3. Take steps to reduce the language changes/errors made by Board attorneys and editors;
  4. Reevaluate the process for assigning dates to decisions to have one system;
  5. Initiate an update of the Agency regulations to allow for notification of parties by posting the decision on the Web site and e-mail as part of the overall review of changes needed to the Agency's Web site.