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APPEALS
A charging party has a right to obtain review of a Regional Director's decision not to issue complaint by filing an appeal with the General Counsel within 25 days after service of the decision. See Section 2423.11(c) of the Regulations.
What are the grounds for granting an appeal and what must your appeal establish to be granted?
Does the appeal letter address each and every argument made in the appeal?
To whom can you speak if you have any questions about how your charge was processed and decided?
The grounds for granting an appeal are set forth in Section 2423.11(e) of the General Counsel's Rules and Regulations. An appeal may be granted if it establishes at least one of the following grounds:
1. The Regional Director's decision did not consider material facts that would have resulted in issuance of complaint.
2. The Regional Director's decision is based on a finding of a material fact that is clearly erroneous.
3. The Regional Director's decision is based on an incorrect statement of the applicable rule of law.
4. There is no Authority precedent on the legal issue in the case.
5. The manner in which the Region conducted the investigation has resulted in prejudicial error.
Your appeal must address the reasons why you believe one or more of the above five grounds have been satisfied. Appeals that do not establish at least one of these grounds are denied.
You will receive written notification that your appeal has been received. Upon completion of the appeal and the evidence in the file obtained during the investigation, the General Counsel will either grant or deny the appeal. You will receive a written decision letter which: 1) grants your appeal and orders further investigation of specific factual issues or issuance of a complaint over a specific violation; or 2) denies your appeal because none of the grounds for granting an appeal have been established.
Does the appeal letter address each and every argument made in the appeal?
When an appeal is denied, the appeal decision is to affirm and adopt the Regional Director’s determination of the material facts, the applicable law and rationale and reasoning for the finding that the evidence does not establish an unfair labor practice. Therefore, if the factual and legal issues have been correctly and sufficiently addressed by the Regional Director, the appeal determination letter does not restate this discussion. Rather, the appeal determination letter incorporates by reference the full discussion of the facts and the law as set forth in the Regional Director’s dismissal letter. Similarly, if the appeal establishes that one of the grounds for review has been met, the appeal determination letter does not discuss each and every argument presented in the appeal. In those cases, the appeal determination letter granting an appeal sets aside the Regional Director’s decision with a statement of the ground for granting the appeal and the future case processing action to be taken by the Regional Director.
Our goal is to issue a decision on your appeal within 90 days or less of the date on which your appeal is received.
The decision on the appeal is final. Section 2423.11 of the Rules and Regulations sets forth the appeals process. However, paragraph (g) of this section provides that the Charging Party may file a motion for reconsideration of the final decision if it can establish with particularity extraordinary circumstances which are supported by citations to Authority case law. The motion must be filed within 10 days after the date in which the General Counsel's decision is postmarked. The General Counsel's decision on a motion for reconsideration is final.
No. All of the evidence that you gave to the Region during the investigation is in the investigative file and will be reviewed. You do not need to submit any evidence you have already given the Region during the investigation. However, you may refer to that evidence in your appeal.
No. No new evidence will be considered.
No. The appeal process is not an investigative process. The decision will be based on your appeal and the investigative file. The Office of the General Counsel will notify you as soon as a decision is reached. If your appeal is granted, the case will be returned to the Regional Office and you will be contacted by the Region for further processing of the case.
To whom can you speak if you have any questions about how your charge was processed and decided?
Parties may always contact the Regional Offices or the Office of the General Counsel if they have questions about the processing of their charge, do not understand the basis for the dismissal of their charge, or to seek further assistance.
If you have further questions about the appeals process, contact any Regional Office or the Office of the General Counsel