Key Points

  • Media policies which prohibit employees from communicating with the media must be narrowly tailored to protect legitimate business interests such as protecting confidential information and controlling statements made on behalf of the employer; and
  • Media policies that specifically exclude communications by employees that are not made on behalf of the employer and that relate to labor disputes or other concerted communications for the mutual aid or protection under the National Labor Relations Act (Act) are lawful.

On March 30, 2020, the NLRB issued the decision, Maine Coast Regional Health Facilities which is relevant for substantially all employers due to the uncertainty and heightened health and safety issues that confront employees and employers during the COVID-19 pandemic. The Board decision confirms that employer media policies must be narrowly tailored to protect legitimate employer interests and must not infringe on employees’ right to communicate with the media to bring attention to employee concerns regarding labor disputes or working conditions regardless of whether a union is involved.

Media Policy

Eastman Maine Hospital Systems (EMHS) is the parent company of Main Coast Regional Health Facilities and maintained a media policy that was one of over 260 policies made available to employees through an online portal. The media policy provided as follows:

No EMHS employee may contact or release to news media information about EMHS…without the direct involvement of the EMHS Community Relations Department or of the chief operating officer responsible for the organization. Any employee receiving an inquiry for the media will direct that inquiry to the EMHS Community Relations Department, or Community Relations staff at that organization for appropriate handling.

An employee of Maine Coast Regional Health Facilities submitted a letter to the editor of a local paper discussing staffing shortages at the hospital, the adverse impact of the shortages on employees’ working conditions and expressed support for the nurses’ union efforts to improve staffing levels. EMHS subsequently discharged the employee because submission of the letter to the editor violated the terms of the media policy. After the employee filed a ULP charge, EMHS amended the original media policy to include the following savings clause:

This Policy does not apply to communications by employees not made on behalf of EMHS or a member organization, concerning a labor dispute or other concerted communications for the purpose of mutual aid or protection protected by the National Labor Relations Act.

EMHS never repudiated the employee’s discharge nor notified its employees of the amended media policy.

ALJ decision

The ALJ found that the terminated employee was the only employee that had ever been terminated for violation of the media policy. As a result, he noted that the media policy had only ever been invoked to interfere with the exercise of §7 rights under the Act. As a result, the ALJ determined that the media policy was unlawful under the Boeing analytical framework for the following reasons:

  • The discharge violated the Act in that the employee’s submission of the letter to the editor was protected concerted union activity, and the original media policy was the stated reason for the discharge;
  • The original media policy was unlawful under the Boeing standard as a category 3 violation because it significantly infringed on employees’ right to communicate with the media to draw attention to the need to improve working conditions; and
  • The amended media policy was unlawful because EMHS failed to repudiate the discharge of the employee and failed to inform employees that the protected concerted activity in which the former employee had engaged was permitted under the amended policy.

The ALJ further clarified that EMHS’ failure to repudiate the discharge and to inform employees of the amended policy could lead an objective employee to reasonably conclude that the amended policy continued to prohibit the type of activity that resulted in the discharge. As a result, the ALJ ordered the reinstatement of the employee, and other relief. See our complete discussion of the ALJ decision here.

Board decision

The Board affirmed the ALJ decision that the employee was discharged for engaging in protected concerted union activity in violation of the Act and that the original media policy was overly broad and unlawful under Boeing. The Board, however, reversed the ALJ ruling as to the amended policy only.

The Board evaluated the amended media policy under the Boeing framework to determine whether the facially neutral media policy could reasonably be interpreted to interfere with the exercise of rights under the Act. If the amended media policy could be reasonably interpreted to restrict §7 activity, the Board would have been required to engage in a balancing test that weighs the employer’s justifications of the policy against the potential adverse impact on §7 rights.

The Board, however, never reached the Boeing balancing test. Instead, it concluded that the “clear language” of the amended media policy excluded communications by employees relating to labor disputes and concerted activity. As  such, an objective employee could not reasonably construe the amended media policy as restricting §7 rights.

The Board disagreed with the ALJ’s conclusion that EMHS’ failure to repudiate the discharge and inform employees of the amended policy would lead employees to believe that the amended policy still prohibited the type of activity engaged in by the discharged employee. Instead, the Board cited as significant that the employee’s discharge was the first and only discharge under the original media policy and concluded that the employees “isolated discharge” would not obscure the ”very clear meaning of the savings clause in the amended media policy which expressly permits §7 activity. The Board categorized the amended media policy as a lawful Category 1(a) policy under the Boeing test and as further defined in LA Specialty Produce Co.

What this means to you

The Board decision is a reminder to employers that concerted activity include the actions of a single employee who brings group complaints to the attention of the employer. Additionally, broad media policies unlawfully restrict the exercise of §7 rights if the policy restricts any communication with the media and is not limited in scope to protect legitimate business interests such as the protection of confidential information or controlling statements made on behalf of the employer, As health-care workers continue to face health and safety issues related to exposure to COVID-19 in the workplace and a shortage of personal protective equipment, employers may experience an increase in the incidence of employees’ discussing health and safety issues with third parties on social media or in the news media to bring attention to the issues. Employers must recognize that such statements may constitute protected concerted §7 activity under the Act.

If you have concerns about your work rules and policies in light of the current COVID-19 pandemic, contact Terry Potter or your Husch Blackwell attorney.

Tracey Oakes O’Brien is a contributing author of this content.

On March 16, 2020, the Board issued its decision in Baylor University Medical Center and Dora S. Camacho reversing the 2018 ALJ decision and holding that Confidentiality and No Participation in Third-Party Claim provisions in a voluntary severance agreement are lawful. The decision overrules Clark Distribution System, Shamrock Foods Co., and Metro Networks to the extent the holdings extend beyond their fact patterns involving employees who were unlawfully dismissed for exercising their rights under the National Labor Relations Act (Act). Continue Reading Confidentiality and No-Participation Provisions in Voluntary Severance Agreements Lawful

COVID-19 presents a formidable health and safety challenge to employers, and unionized employers also must address issues in the context of their obligations under the National Labor Relations Act (NLRA) and a collective bargaining agreement. The broad range of issues includes both mandatory subjects of bargaining and business decisions that impact the employees of the bargaining unit. Such issues include health and safety concerns, attendance and staffing issues, wage and hour issues, leave issues, changes in work schedules, layoffs, and temporary reductions in hours or closure of the business to reduce infection rates. Missteps in effectuating these major changes can lead to violations of the NLRA and an increase in the incidence of workers refusing to work. Employer’s ability to navigate these issues successfully requires an understanding of their rights under both the collective bargaining agreement and federal law in this novel situation. Here are some key considerations and proactive measures employers can take to facilitate timely and decisive employment actions.

Continue Reading Labor Relations Issues and COVID-19: Avoiding NLRA Violations through Proactive Measures

Husch Blackwell issued a client legal alert regarding the U.S. Court of Appeals for the D.C. Circuit’s decision in Duquesne University of the Holy Spirit v. NLRB, which resulted in the denial of collective bargaining rights to adjunct faculty members employed by Duquesne University, a religious university. In summary, the court held that the National Labor Relations Board lacked jurisdiction over the religious institution, including all of its faculty members, consistent with the Supreme Court’s prior decision, NLRB v. Catholic Bishop of Chicago and the D.C. Circuit’s own bright-line test established in University of Great Falls v. NLRB. We offer the full update in the alert posted on our website.

The UAW strike against GM represents the latest strike in a string of labor disputes between management and union workers. Continuation of health benefits during a strike is always a consideration in such situations.

After initially stating it would not pay for striking workers’ health care benefits, GM reversed its decision. GM’s decision to terminate health benefits would have shifted the burden of paying for striking workers’ health insurance benefits to the employees under COBRA. The GM situation brings to the forefront the legal issue of who is responsible for the payment of the health insurance benefits for workers who have stopped working to exercise their right to participate in a union strike.

Continue Reading Employers Can Terminate Health Insurance Benefits for Union Employees During a Strike

On September 6, 2019, the NLRB (Board) issued the decision, Kroger Limited Partnership I Mid-Atlantic and United Food and Commercial Workers Union 400 (Kroger decision), which overruled Sandusky Mall Co., and limited the right of nonemployee union agents to access employer property for the purpose of union solicitations. The 3-1 decision, split along party lines, is the latest Board action in a string of pronouncements that restrict union expressive activity. Prior Board actions include the decision in UMPC and its Subsidiary UMPC Presbyterian Shadyside, which restricts nonemployee union organization solicitations in public areas on the employer’s property, and the recent GC advice memo issued on December 20, 2018 that we discussed here relating to restrictions on the use of banners and inflatables in secondary boycott activities. The decisions signal a continued shift in the Board’s interpretation of the scope of protected activity under the National Labor Relations Act (Act).

Union solicits Kroger customers to boycott store

 Kroger operated a retail grocery store, number 538, located in Virginia that previously had entered into a collective bargaining agreement with the United Food and Commercial Workers Union 400 (Union). In late 2014, Kroger opened two new Kroger stores that were not union shops within a short distance of the Kroger 538 store. The Kroger 538 store was subsequently slated for closure, and its employees were offered the option of transferring to other unionized Kroger stores, but not the closer, non-union, new Kroger locations. In response, the Union representative began soliciting customers in the Kroger 538 parking lot to boycott the new Kroger locations and to sign petitions to protest Kroger’s decision to transfer its Kroger 538 employees to only more distant, unionized locations. Kroger subsequently contacted the police who ordered the Union agent to leave the parking lot. The Union filed an unfair labor practice charge alleging discriminatory denial of access to private property and enforcement of a no solicitation policy.

With regard to Kroger’s policies and practices related to solicitations at the Kroger 538 property, the ALJ made the following relevant findings:

  • Kroger did not have a written policy regarding solicitation requests by nonemployees on the Kroger 538 property.
  • Kroger’s lease of the property contained a no solicitation/no loitering provision which prohibited all soliciting, handbilling, picketing and loitering activities in the parking and common areas of the store.
  • The lease provisions authorized Kroger to treat all persons engaging in such activities as trespassers.
  • As a past practice, Kroger had authorized nonemployee solicitation requests on an individual basis. It had approved nonemployee solicitation requests at the Kroger 538 property from certain entities, such as the Girl Scouts, the Lions Club, the Salvation Army, the American Red Cross, and the local fire department. At least one request from a nonemployee, non-union, religious organization was denied.
  • A March 2014 letter from the landlord “targeted unions and other groups” seeking to protest, handbill, picket or engage in other disruptive activities on the premises.

The ALJ concluded that:

  • The Union agent had engaged in protected activity under the Act by soliciting Kroger customers on Kroger’s parking lot; and
  • Kroger had violated §8(a)(1) of the Act by excluding union solicitations on Kroger property “while at the same time favoring and permitting charitable and civic solicitation activity.”

The majority of the Board disagreed with the ALJ’s decision and dismissed the Union’s complaint.

 NLRB expands employers’ right to bar union solicitations on private property

 In reaching its decision, the Board significantly narrowed the circumstances under which a union has a statutory right under the National Labor Relations Act (Act) to access an employer’s property for the purpose of soliciting customers or patrons of the employer. The majority held that an employer need only permit access to the employer’s property by nonemployee union agents if the employer permits other nonemployee, nonunion organizations to engage in activities “similar in nature to those the union seeks to engage.” The decision necessitates consideration of not only the conduct (solicitations), but also the content of the solicitations (protests and boycotts). The majority decision overrules established Board precedent.

The decision demonstrates a shift in the Board’s view of the proper balance between protecting employers’ property rights and a union’s statutory right to access an employer’s property to exercise §7 rights. While an employer has a right to exclude non-employees from the employer’s private property, the U.S. Supreme Court in NLRB v. Babcock and Wilcox, Inc., held that it’s a violation of the Act to discriminate against unions by excluding unions from the employer’s property while allowing “other distribution.” The 1999 Board decision, Sandusky Mall Co., interpreted the Babcock discrimination exception to require employers to permit union access to the employer’s property if the employer permits other nonemployee charitable, civic, or promotional activities on the employer’s property. The majority, however, described Sandusky as being “roundly rejected by the courts of appeals,” and as having “stretched the concept of discrimination well beyond its accepted meaning” in a manner that is unsupported by Supreme Court precedent or the Act.

Instead, the majority views the scope of the discrimination exception as narrow and asserted that restrictions on an employer’s right to deny access to their property by nonemployee union agents are proper only in limited circumstances. Significantly, the Board rejected as “too narrow,” the 2nd and 6th Circuit Courts of Appeals decisions that limit the Babcock discrimination exception to circumstances in which one union is favored over another, or in which employer related information is permitted to be communicated while union related information is excluded, or in which nonemployees who seek to communicate on a subject protected by §7 of the Act are treated dissimilarly. Rather, discriminatory denial of access to an employer’s property exists only if the nonemployee activities permitted are similar in nature to the nonemployee union activities that are not permitted. Further, protest and boycott activities, which urge customers not to patronize the business and are against the business interest of the employer are not similar to charitable, civic and commercial activities.  The Board’s decision will be retroactively applied to all pending cases.

What does this mean for employers?

 The Kroger decision reflects the continued trend by the Board to expand the employer’s right to deny access to its property by nonemployee union agents. The decision also provides insight into the Board’s plans regarding the development of a new standard related to access to an employer’s private property as announced in the May 22, 2019 unified agenda.

Additionally, the Kroger decision paves the way for the Board to reconsider its decisions related to off-duty employee access policies that require employers to choose between a zero tolerance off-duty access policy and a policy that grants workers access without restrictions. In 2012, the lone Republican Board member dissented from several majority decisions that required employers’ policies to prohibit all off-duty employee access in order to control access to the premises by off-duty employees. Similar to the analysis in the Kroger decision, the dissenting Board member criticized the then majority holdings as upsetting the “balance between an employer’s right to control its property and an employee’s right to engage in §7 protected activity.”

As a result of the Kroger decision, employers and managers should undertake the following actions:

  • Develop a written solicitation and distribution policy related to access of the employer’s property by nonemployees, including identification of the types of activities that will be allowed by nonemployees on the employer’s property;
  • Consistently apply the solicitation and distribution policy to solicitation requests by nonemployees; and
  • Provide training to management regarding the new labor rules relating to solicitations by nonemployee groups as well as the employer’s solicitation and distribution policy.

The Kroger decision relating to union solicitations and handbilling as well as the General Counsel’s advice memo which seeks to overturn prior decisions relating to the union’s use of banners and inflatables evidence the Board’s intent to reverse union friendly decisions and to narrow the circumstances under which union expressive activity is allowed to encroach upon employers’ business premises.

Tracey Oakes O’Brien is a contributing author of this content.

 

Key Points

  • Direct evidence of a plan to engage in repeated strikes to achieve a common goal establishes that such strikes are unprotected, intermittent strikes.
  • Only in the absence of direct evidence will the Board consider extenuating circumstances to evaluate whether multiple strikes constitute protected activity.

On July 25, 2019, a majority of the NLRB (Board) decided in Walmart Stores, Inc, and The Organization United for Respect at Walmart (Our Walmart), that direct evidence of a plan to conduct a series of strikes by striking, returning to work, and striking again, repeatedly in support of the same goal establishes the existence of an unprotected, intermittent strike. The Board decision overturned the ALJ’s opinion and concluded that Walmart’s discipline of workers for participation in at least one of four intermittent strikes over a two-year period was lawful and did not result in a §8(a)(1) violation of the NLRA for infringement of employees’ §7 right to engage in concerted activities.

Background relating to the strikes at Walmart

OUR Walmart is a group founded by Walmart workers with the assistance of the union, UFCW, to organize workers and to induce Walmart to make changes in their employment practices and working conditions. The UFCW represents workers in a variety of retail settings but was not the union representative for Walmart workers. Nonetheless, the union assisted Walmart employees with their OUR Walmart engagement strategy of conducting four strikes which occurred in October 2012, November 2012, May to June 2013, and November 2013 for the stated purpose of improving employee’s wages, hours, benefits, and other working conditions.

In May to June 2013, OUR Walmart planned a coordinated set of strikes among various Walmart stores, referred to as the “Ride for Respect,” in which approximately 100 to 130, out of the 1.3 million Walmart employees, travelled to Bentonville, Arkansas for approximately six days during the annual Walmart shareholders’ meeting to protest working conditions. As a result of their participation in the strike, 54 Walmart workers were either disciplined or discharged under the Walmart attendance policy. Walmart contended the strikes were intermittent work stoppages and not protected under §7 of the NLRA. On the issue of the May-June 2013 strikes, the ALJ found that Ride for Respect was not an intermittent strike, and the discipline and discharge of the employees for unexcused absences during their participation in the Ride for Respect violated §8(a)(1) of the NLRA.

In reaching his conclusion, the ALJ acknowledged that OUR Walmart engaged in four strikes to advance the same goal as part of the “Making Change at Walmart” campaign and that the parties entered into a stipulation that OUR Walmart intended to continue planning similar strikes in the future. As such, the ALJ concluded that Walmart employees “had engaged in a pattern of recurring strikes and have demonstrated their intent to engage in recurring strikes in the future.” Despite his finding, the ALJ also considered five factors to determine whether the May-June 2013 strike was part of that plan and constituted an intermittent strike. In his analysis, the ALJ concluded that the Ride for Respect did not constitute an intermittent strike because it was not brief, was not scheduled close in time to the other strikes and like the other strikes, was not used to exert economic pressure on Walmart during collective bargaining negotiations. The majority of the Board disagreed.

What is an intermittent strike?

At the outset, the majority characterized the case as a “rare straight forward case” with “direct evidence of an intermittent strike.” The Board defined an intermittent strike as a plan to strike, return to work, and strike again, repeatedly.” The direct evidence establishing the existence of the intermittent strike was the union’s and OUR Walmart’s stipulation that they intended to plan future strikes similar to the four strikes in 2012-2013. According to the majority, an inquiry into the circumstances surrounding work stoppages is only proper in the absence of direct evidence of a plan to conduct a series of strikes. No such inquiry into the circumstances was necessary in light of the parties’ stipulation that they planned to engage in a series of future strikes to achieve a common, unchanging goal.

The crucial factor for the majority was OUR Walmart’s plan to use repeated strikes in pursuit of a common goal without any intervening event that precipitated the decision to engage in a subsequent strike. A protected strike necessitates that employees withhold their labor services while negotiating their demands with the employer until their demands are either satisfied or rejected. A plan to engage in random, intermittent, brief strikes was characterized as comparable to economic, ambush warfare and not sanctioned by Congress or protected under the NLRA. The Board also flatly denied that the repeated strikes must reach a certain threshold of disruption to be regarded as unprotected, intermittent strikes and clarified that a new decision to strike would not constitute an intermittent strike, if supported by new developments warranting a new strike.

What this means to you

The Board’s decision in the Walmart case provides some clarity on the issue of whether work stoppages are protected or unprotected activity. The test is whether the work stoppages are part of plan to achieve a common goal and the decision to strike is unaffected by new circumstances. While the parties’ stipulation provided that proof in this case, undoubtedly, future cases that lack such direct evidence will require the more familiar analysis of factors to determine the protected status of work stoppages.

Tracey Oakes O’Brien was a contributing author of this content.

In a notice of proposed rulemaking and request for comments published on August 12, 2019, the NLRB exercised its discretionary rulemaking authority to propose changes to three discretionary election bar policies:

  • The blocking charge policy,
  • The voluntary election bar policy, and
  • For the construction industry only, the contract bar policy.

These policies currently bar, for a period of time, the filing or processing of representation election petitions by employers, employees, or rival unions to challenge an incumbent union as the bargaining representative. The lack of a formal rule has resulted in modifications and inconsistent application of these policies by past Boards. The current Board contends that repeated modifications to the policies deprive stakeholders of certainty related to the processing of election petitions challenging majority support for union representation, and that the current interpretation of the scope of the three election bar policies is overbroad, causes lengthy delays in processing election petitions, and infringes on employees’ statutory right to freely choose a bargaining representative. Under its rulemaking authority, the Board proposes to establish new election bar standards that modify or abrogate these discretionary bars on Board election petitions. Comments from all stakeholders are due no later than October 11, 2019.

Blocking charge policy

The Board’s first proposal would eliminate the policy of postponing a Board election upon the filing of unfair labor practice (ULP) charges. Under current policy, the filing of a ULP charge by a union, employee, or employer permits the charging party to file a request with the NLRB to block the processing of an election petition, including decertification petitions filed by employees (RD), representation election petitions filed by unions (RC), and representation election petitions filed by employers (RM). The current policy was amended and codified partially in 2014 under rule 103.20 which requires the party requesting the block to make a simultaneous offer of proof, including disclosure of a witness list, expected testimony of the witnesses, and to make the witness available to the NLRB. Section 103.20 was adopted to curb the filing of meritless blocking charges used to manipulate the blocking charge policy for the purpose of delaying elections and avoiding challenges to a union’s representational status.

Under the current blocking charge policy, election petitions are held in abeyance or dismissed at the discretion of regional directors of the NLRB upon the filing of a ULP, if the offer of proof by the charging party describes evidence showing interference with employees’ free choice in an election or evidence that is inherently inconsistent with the election petition.

To address the concerns of abuse and manipulation of the blocking charge policy that results in lengthy delays of RM, RD, and rival RC representation election petitions, the Board contends that more substantial measures beyond the measures imposed by rule 103.20 should be implemented. As such, it proposes to abrogate the current blocking charge policy and to substitute a vote and impound procedure that had been previously suggested by the General Counsel in response to a 2017 RFI.

Under the new policy, an election would be allowed to proceed even though a ULP charge and blocking request are pending. If the merits of the ULP charge have not been resolved prior to the election, the ballots would be impounded until the Board makes a final determination regarding the charge. A finding that the ULP charge was without merit would result in the immediate tallying of the ballots and certification of the results.

Immediate voluntary recognition policy

The second proposed change would eliminate the immediate voluntary election bar. The current voluntary recognition policy, known as the immediate voluntary recognition bar, was reinstated by the Board decision, Lamons Gasket Co., in 2011. Under the immediate recognition bar, an employer’s voluntary recognition of a union as the exclusive bargaining representative under §9(a) of the NLRA immediately bars the filing of an election petition challenging the union’s claim of majority representation for a period of six months to one year from the date of the party’s first bargaining session. Board policy on immediate voluntary recognition, however, has been inconsistent. Prior to the current policy, the 2007 Dana Corp Board decision abrogated the long-standing policy of immediately barring an electoral challenge following the voluntary recognition of a union and instead, adopted a notice and post recognition open period to allow for the filing of petitions for a Board election following voluntary recognition of the union.

The Board’s proposed rule would reinstate and codify a post recognition period similar to the policy adopted in Dana Corp. Dana Corp., required, upon the voluntary recognition of a union by the employer along with a contemporaneous showing of majority support by the union:

  • Written notice to employees of the bargaining unit of the voluntary recognition of the union as the exclusive representative and of the 45-day open period to file election petitions, and
  • Elapse of the 45-day open period in which employees and rival unions could file a Board election petition.

A bar to electoral challenges would take affect only if proper notice was provided and no party filed an election petition within the 45-day open period.

Contract bar policy used in construction industry

The third proposal would eliminate the ability of a union and construction employer to convert a pre-hire agreement authorized under §8(f) of the NLRA to a §9(a) collective bargaining agreement without a showing of majority support for the union. In the construction industry, unions and employers may enter into pre-hire agreements under §8(f)of the NLRA to establish a collective bargaining relationship in the absence of the support of a majority of the employees of the bargaining unit. This non-majority exception arose as a result of the pre-hire employment agreements used by the construction industry to secure qualified workers from unions. A collective bargaining relationship under §8(f), however, does not create a contract bar, and the collective bargaining relationship is subject to election petitions by employees and rival unions. While an §8(f) collective bargaining relationship can be converted into a §9(a) collective bargaining relationship, which does allow for contract and voluntary recognition bars to election petitions, Board policy has been inconsistent with regard to the proof required to establish a §9(a) collective bargaining relationship in the construction industry.

Under the current Board policy, an employer and a union in the construction industry are allowed to convert a §8(f) collective bargaining relationship to a §9(a) collective bargaining relationship on the basis of contract language alone and are not required to provide extrinsic evidence showing union support by a majority of the bargaining unit employees.

 The proposed rule would preclude the conversion of a §8(f) bargaining relationship to a §9(a) bargaining relationship by contract language alone. Instead, the proposed rule would require extrinsic proof that a union unequivocally demanded recognition as the §9(a) exclusive bargaining representative and that an employer unequivocally accepted the union as the exclusive representative based on a showing of support from a majority of the employees in the bargaining unit.

Conclusion

The Board’s use of rulemaking to codify changes to Board polices was implemented by the Board under the Obama administration in its Election Rule published on December 15, 2014, and effective April 14, 2015. The current Board has embraced the same strategy and has continued to exercise its rulemaking authority to modify and codify changes to discretionary bars on election petitions filed by employees, employers and rival unions to challenge an incumbent union’s representative status. In a footnote, the Board signaled that in the future “it may choose to address one or more” other discretionary election bar policies not addressed in the August 12, 2019 notice of proposed rulemaking. It should be presumed that the Board will continue to narrow the circumstances under which the presumption of union support exists without a secret board election.

Stakeholders have until October 11, 2019 to submit comments to the NLRB regarding the Board’s decision to engage in rulemaking to modify certain discretionary election bars as well as the specific changes proposed regarding the filing and processing of representation election petitions.

If you have questions regarding the proposed rules, would like to submit comments or have other questions relating to the effect of the proposed rules on your business, contact Terry Potter or your Husch Blackwell attorney.

Memorandum 19-05, issued by the NLRB Division of Operations Management of the Office of the General Counsel in March 2019, gives Regional Directors a new tool to expedite cases when a charged party fails to cooperate with an unfair labor practice (ULP) investigation. Instead of relying on investigative subpoenas to acquire additional information, Regional Directors may issue complaints based on “evidence available.”  The new authorization is designed to reduce case processing time consistent with the General Counsel’s major objectives as described in the December 2018 memorandum, GC 19-02.

Discretionary authority to issue complaint based on party’s lack of cooperation

Under the terms of memorandum 19-05, if a charged party fails to fully cooperate in a ULP administrative investigation, Regional Directors have the discretionary authority to determine 1) whether to issue a complaint based on evidence available, and 2) whether the failure to cooperate is significant. A significant lack of cooperation is described as including a complete failure to respond or a failure or provide “key information.”  It would not include “failures to produce a witness or witnesses where credibility disputes may dictate the issuance of a complaint.”  A determination of a significant lack of cooperation will be factually dependent and may take into consideration the severity of the ULP allegations as well as the impact on commerce.

If the Regional Director determines that a charged party’s failure to cooperate is significant, the board agent will not need to seek an investigative subpoena to acquire the information requested so long as a complaint could be issued based on evidence available. Under such circumstances, the Regional Director may include a footnote after the second sentence of the first paragraph of the complaint noting the significant lack of cooperation as follows:

On (dates), the Region requested that Respondent cooperate in the administrative investigation of the ULP charge(s) conducted prior to issuance of the instant complaint. Respondent failed to fully cooperate in the investigation by refusing to furnish certain documents relevant to the disposition of the charge(s).

Memorandum 19-05 will not affect the issuance of trial subpoenas. Trial subpoenas will still be sought to compel information regardless of the existence of a determination of a significant lack of cooperation to issue the complaint.

Effect of memorandum 19-05 on charged party

The use of investigative subpoenas varies greatly among the Regional Offices. Some use them as a matter of course and others rarely use them.  As always, a charged party must weigh the value of working with the Region to adequately comply with requests for information while also protecting client information that may be sensitive or beyond the scope of the ULP charges against the consequences of having a complaint filed based on a determination of lack of significant cooperation.