Thursday, February 27, 2014

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

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.