NLRB's General Counsel Issues Memo Regarding Mandatory Submissions to Advice

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On February 25, 2014, Richard F. Griffin, Jr., General Counsel for the National Labor Relations Board (NLRB), issued a memo to all Regional Directors, Officers-in-Charge, and Resident Officers instructing them on the types of cases that require submission to the Division of Advice (the NLRB's legal department) prior to the issuance of a decision.

Despite Mr. Griffin's position that "the vast majority of cases can be processed without guidance from headquarters," he then proceeds to identify 3 "areas" requiring legal review: (1) cases that involve the General Counsel's initiatives or policy concerns; (2) cases that involve difficult legal issues or the absence of clear precedent; and (3) "other case-handling matters."  

The memo includes no less than 24 types of cases that require submission to the Division of Advice, such as:
  • Cases involving the issue of whether employees have a Section 7 right to use an employer's e-mail system; 
  • Cases involving the duty to furnish financial information in bargaining where the employer has asserted an "inability to pay";
  • Cases involving "at-will" provisions in employer handbooks;
  • Cases presenting unresolved issues concerning undocumented workers; 
  • Cases involving mandatory arbitration agreements with a class action prohibition that are not resolved by the D.R. Horton decision in the Fifth Circuit; and
  • Subpoena authorization issues.
Clear from the Memo is the NLRB's intention to step up its efforts simplify the organizing process and to push deeper into the private sector.



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