In MEMORANDUM GC 14-0, issued February 25, 2014, Richard F. Griffin, Jr., General Counsel of the National Labor Relations Board, provided a list of matters that should be submitted to the Division of Advice. The memo has been read as a hint of issues that will be the focus of NLRB attention and enforcement.
The list is divided into three groups. The first group includes matters that involve General Counsel initiatives or areas of the law and labor policy that are of particular concern. The second group includes difficult legal issues that are relatively rare in any individual Region and issues where there is no governing precedent or the law is in flux. The third group includes updates regarding case handling matters that have traditionally been submitted to Advice.
A. General Counsel’s initiatives or policy concerns:
- Cases involving the issue of whether a perfectly clear successor should have an obligation to bargain with the union before setting initial terms of employment.
- Cases involving an allegation that the employer’s permanent replacement of economic strikers had an unlawful motive.
- Cases involving whether employees have a Section 7 right to use an employer’s e-mail system or that require application of the discrimination standard enunciated in Register Guard, 351 NLRB 1110 (2007).
- Cases involving the duty to furnish financial information in bargaining where the employer has arguably asserted an “inability to pay.”
- Cases involving the applicability of Weingarten principles in non-unionized settings.
- Cases involving make-whole remedies for construction industry applicants or employees who sought or obtained employment as part of an organizing effort.
- Cases involving pre-recognition bargaining by a prospective successor.
- Cases involving a refusal to furnish information related to a plant relocation or other decision subject to a Dubuque Packing analysis.
- Cases where deferral to arbitration may not be appropriate because an arbitration has not/will not be conducted within a year.
- Pre-arbitral settled and post-arbitral deferred cases involving 8(a)(1) and (3) violations.
- Cases involving organizational campaigns where the following remedies might be appropriate: (1) access to employer electronic communications systems, (2) access to nonwork areas, and (3) equal time to respond to captive audience speeches.
- First contract bargaining cases where reimbursement of bargaining expenses or of litigation expenses might be appropriate.
B. Cases that involve difficult legal issues or the absence of clear precedent:
- Cases involving (1) whether the employer has demonstrated “exigent circumstances” that permitted unilateral discipline, (2) what is the appropriate remedy for a failure to engage in pre-discipline bargaining, and (3) what suffices for purposes of good faith bargaining in these circumstances.
- Cases that involve an assertion of 9(a) status in the construction industry based on contractual language.
- Cases involving whether a novel form of conduct (e.g. coordinated “shopping”, excessive use of loudspeakers, corporate campaigns) constitutes Section 8(b)(4)(i) or (ii) or 8(b)(7) conduct.
- Cases involving the validity of partial lockouts.
- Organizing situations raising the issue of union access to lists of employee names and addresses where those employees are widely dispersed or have no fixed duty location.
- Cases in which the Region is considering issuing or has issued complaint against an entity that has purchased a bankrupt entity through a “free and clear” sale.
- Cases involving “at-will” provisions in employer handbooks.
- Cases in which the Board invites parties to file position statements following a remand from the Court of Appeals or on the Board’s own motion and cases where the Region wants to seek to file a brief notwithstanding lack of a Board invitation.
- Cases involving the need to harmonize the NLRA with local, state, or other federal statutes.
- Cases of potential or actual overlapping jurisdiction with other Federal agencies.
- Cases presenting unresolved issues concerning undocumented workers.
- Cases involving the legality of a pending or completed lawsuit or grievance where the Region recommends issuing complaint.
- Cases involving the legality of any aspect of a “neutrality” or card check agreement.
- Cases involving the rights of contractor employees, who work on another employer’s property, to have access to the premises to communicate with co-workers or the public.
- Cases involving mandatory arbitration agreements with a class action prohibition.
- the chargeability of job targeting program expenses.
- the chargeability of legislative expenses (see United Nurses, 359 NLRB No. 42 (2012)).
- the chargeability of organizing expenses in complex cases.
C. Other case-handling matters to be submitted:
- Injunction Litigation
- Requests to file a 10(j) injunction petition.
- 10(j) recommendations in all cases involving: (1) complaints seeking a Gissel bargaining order; (2) discharges during organizing campaigns; (3) first contract bargaining and (4) successorship cases. (See further discussion below).
- Requests for authority to seek contempt of a 10(j) or 10(l) order.
- Recommendations regarding appeal in 10(j) or 10(l) cases in which a district court denied injunctive relief.
- Subpoena authorization issues.
- Requests to issue investigative subpoenas post-complaint.
- Requests for an investigative subpoena to identify an employer that placed a “blind” newspaper advertisement seeking job applications.
- Requests to issue investigative subpoenas where a serious claim of privilege is likely to be raised.
- Cases where, following issuance of any subpoena, intervening circumstances present enforcement problems.
- Cases where the Region is considering denying the request of a private party for enforcement of subpoena.
- Cases where the Region lost an ALJ decision on an Advice-authorized legal theory and the Region does not want to take exceptions; cases where new evidence was introduced at the hearing that could call into question the continued validity of the Advice-authorized legal theory; and cases where an ALJ decision raises novel or complex questions even if the case was not previously submitted to Advice.
- Formal Settlement Agreements that the Region recommends accepting unilaterally.
- EAJA cases where the Region wishes to pay a claim.
- Other matters requiring Advice approval referenced in the case-handling manual.
D. 10j Injunctions:
In MEMORANDUM GC 14-03, issued April 30, 2014, Griffin reemphasized his intent to aggressively seek 10j injunctive relief in appropriate cases:
An important priority of mine is to ensure that we continue our efforts to obtain immediate relief in those unfair labor practice cases that present a significant risk of remedial failure. Section 10(j) of the Act provides the tool to ensure that employees’ Section 7 rights will be adequately protected from such failure.
Effective enforcement of the Act requires that we protect employees’ rights to exercise their free choice regarding unionization, to participate in an election free of coercion, and to have their elected representative negotiate a first contract unencumbered by the impact of unfair labor practices. Cases involving a discharge during an organizing campaign or arising during negotiations for a first contract frequently require the most expeditious relief to ensure that employees are not irreparably deprived of those rights.
Of course, the need for 10(j) relief is not limited to cases involving discharges during a union organizing campaign or to protect bargaining for a first contract. Early in the investigation of every case, Regions should maintain the practice of considering whether there is a potential need for injunctive relief. The touchstone is always whether there is a threat o remedial failure, that is, whether, in that particular case, the unfair labor practices are having an impact on employees’ Section 7 rights or the bargaining process such that a final Board order will come out too late to effectively restore the lawful status quo.
I have a particular interest in seeking injunctive relief in appropriate cases involving a successor’s refusal to bargain and, more importantly, successor refusal-to-hire cases. In many ways, successor cases present the same need for protection as those with a newly certified union. In both, the status of the employees’ chosen collective-bargaining representative is particularly vulnerable to unfair labor practices. With regard to a successor’s refusal to bargain, unlawful conduct by a new employer that undermines the representative will lead to employee disaffection, concomitant loss of bargaining power, and loss of employee benefits that cannot be restored by a final Board order. And in cases where a successor employer refuses to hire employees to avoid bargaining with an incumbent union, the potential scattering of those employees creates an even greater risk that a final Board order will not effectively restore the parties to establish a good faith bargaining relationship.
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· Howard & Howard Attorneys PLLC
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