OFFICE OF THE GENERAL COUNSEL
MEMORANDUM GC 14-01 February
25, 2014
TO: All Regional Directors,
Officers-in-Charge, and Resident Officers
FROM: Richard F. Griffin, Jr.,
General Counsel
SUBJECT: Mandatory Submissions
to Advice
As a
result of our Agency's strong leadership in the Regions, the vast majority of
cases can be processed without guidance from headquarters. In rare instances,
however, a centralized consideration of certain issues can enhance our ability
to provide a clear and consistent interpretation of the Act. In light of Board
and circuit court decisions issued since GC 11-11, and the emergence of new
policy issues in the past several years, this updated list of matters that
should be submitted to the Division of Advice has been prepared.
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 to me. 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 casehandling matters that have traditionally been submitted to
Advice.
No
list such as this will be exhaustive: the Board’s issuance of decisions often
raises new questions, and policy issues will arise that we have not
contemplated. Regions should be sensitive to the need to submit such issues and
should check for updates to the Headquarters Submission Chart, which is posted
on both the Operations and Advice webpages. Regions should not act without
clearance from Advice before taking controversial positions, e.g., before
seeking to overturn Board precedent. Regions should also continue to make
Operations Management aware of cases that are the subject of attention outside
their local area, or which have a high profile in the local area; if such cases
involve Advice issues, Regions should also notify Advice.
A. Cases that involve the
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, as opposed to only narrow exceptions as
enunciated in Spruce Up, 209 NLRB 194 (1974), enforced, 529 F.2d 516 (4th Cir. 1975). (see dissenting Members Fanning and
Panello in Spruce Up, 209 NLRB at 199-210, as further explicated in the
concurrence by former Chairman Gould in Canteen Co., 317 NRLB 1052, 1054
(1995)).
• Cases involving an allegation that the employer’s
permanent replacementof
economic strikers had an unlawful motive under Hot Shoppes, 146 NLRB 802
(1964).
• Cases that involve the issue of 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), enf. denied in part, 571 F.3d 53 (D.C. Cir. 2009).
• Cases involving the duty to furnish financial
information in bargaining where the employer has arguably asserted an
“inability to pay” or where the employer has made more specific financial
assertions and refused to provide information in support of those assertions
(see GC 11-13 and SAM ADV 13-18).
• Cases involving the applicability of Weingarten principles
in non-unionized settings as enunciated in IBM Corp., 341 NLRB 1288
(2004).
• Cases involving make-whole remedies for construction
industry applicants or employees who sought or obtained employment as part of
an organizing effort as enunciated in Oil Capitol Sheet Metal, Inc., 349
NLRB 1348 (2007).
• Cases involving pre-recognition bargaining by a
prospective successor with an incumbent union.
• Cases involving a refusal to furnish information
related to a relocation or other decision subject to a Dubuque Packing analysis
(see Liebman dissent in Embarq Corp., 356 NLRB No. 125 (2011) and
OM 11-58).
• Cases where Collyer deferral may not be
appropriate because an arbitration has not/will not be conducted within a year
(see GC 12-01 and Collyer deferral chart on Advice/Operations webpages).
• Pre-arbitral settled and post-arbitral deferred
cases involving 8(a)(1) and (3) violations (see GC 11-05 and pre-arbitral
settlement chart and post-arbitral deferral chart on Advice/Operations
webpages).
• Cases covered by GC Memorandum 11-01 (Effective
Remedies in Organization 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.
• Cases covered by GC Memorandum 11-06 (First Contract
Bargaining Cases: Regional Authorization to Seek Additional Remedies and
Submissions to Division of Advice) 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 novel issues arising from the
application of the Board’s decision in Alan Ritchey, 359 NLRB No. 40
(2012), specifically: (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 (per Central
Illinois/Staunton Fuel, 335 NLRB 717 (2001)) that implicate the D.C.
Circuit’s decision in Nova Plumbing, Inc. v. NLRB, 330 F.3d 531
(D.C. Cir. 2003) (see OM 14-23).
• 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.
• Cases in 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, under Technology Service
Solutions, 324 NLRB 298 (1997).
• 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 that are not resolved by extant Advice memoranda.
• 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, except where there is an inter-agency memorandum
of understanding.
• Cases presenting unresolved issues concerning
undocumented workers, including remedial questions left open in Mezonos
Maven Bakery, 357 NLRB No. 47 (2011).
• 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 or other pre-recognition
agreement that is not answered by the Board’s decision in Dana Corp.,
356 NLRB No. 49 (2010).
• 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, where the issues are not resolved by
the Board’s decision in New York New York Hotel and Casino, 356 NLRB No.
119 (2011).
• Cases involving mandatory arbitration agreements
with a class action prohibition that are not resolved by D.R. Horton or
subsequent Advice memoranda.
• Beck issues regarding:
• 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 matters:
- Requests for authorization to file a 10(j) petition.
- 10(j) recommendations in all cases involving: (1)
complaints seeking a Gissel bargaining order; (2) discharges during
organizing campaigns (GC 10-07); (3) first contract bargaining (GC 11-06); and
(4) successorship cases.
- 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.
- Notice of any Notice of Appeal filed in a 10(j) or
10(l) case.
• 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 (see OM 98-65).
- Requests to issue investigative subpoenas where a
serious claim of privilege is likely to be raised (e.g., subpoenas to the
press, witnesses whose chosen counsel the Region would exclude from the
interview) (see CHM (ULP) Sec. 11770.4).
- 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 ALJD 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 ALJD raises novel or complex questions even if the case was not
previously submitted to Advice.
• Formal Settlement Agreements that the Region
recommends accepting unilaterally (see CHM Sec. 10164.8).
• EAJA cases where the Region wishes to pay a claim.
• Other case-handling matters requiring Advice
approval that are referenced in the case-handling manual (see CHM Sec. 10264.5
(naming an attorney as respondent or agent); CHM Sec. 11731.3 (St. Gobain blocking
charges); CHM Sec. 10123.1 (reinstating charges outside the 10(b) period); CHM
Sec. 10164.3 (attempts by respondents to withdraw from formal settlements); CHM
Sec. 10240 (CD cases where parties have not utilized an agreed-upon method of
resolution); CHM Sec. 11753.2 (motions for reconsideration); CHM 10132.1
(settlement notices posted for less than 60 days); CHM Sec. 10132.4 (issues
regarding the extent of electronic notice-posting); CHM Sec. 10124.4
(settlements with novel remedies); CHM Sec. 10280.2 (GC’s attorneys fees); CHM
Sec. 10394.10 (novel situations regarding the production of witness
statements); CHM Sec. 10120.1 (approval of withdrawals in Advice-authorized
cases)).
If you have any questions
regarding this memorandum, please contact the Division of Advice.
R.F.G.
Distribution:
Washington
– Special
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