NLRB Advice Requirements

One of the offices under the NLRB’s General Counsel is the Office of Advice which, according to the NLRB website, “provides guidance to the General Counsel and to the Regional Offices with respect to difficult or novel legal issues arising in the processing of unfair labor practice charges. It determines whether charges have merit and, if so, what legal theories should be advanced in support.” In a recent memo, General Counsel Meisburg has listed a significant number of issues that the Regional Offices must submit to the Office of Advice for review. The list is too long to cite in full, but includes: 

Beck issues regarding:

a. the chargeability of expenses for organizing employees.

b. the chargeability of expense for a strike fund, or other types of

funds “beyond the competitive market” of unit employees.

c. chargeability of expenses for job targeting programs.

d. the type and level of audit unions must give Beck objectors.

e. litigation expenses beyond those incurred in defending or

prosecuting rights of unit employees.

f. whether Beck objectors are entitled to audits along with the notice

of their Beck rights.

Issues . . . concerning Oakwood Healthcare, Inc.:
    a. whether in the healthcare industry a charge nurse’s consideration of
    factors other than the training or skills of the healthcare provider
    and the acuity of the patient demonstrates the use of independent judgment.
    b. cases involving the supervisory status of rotating supervisors.
       

Cases involving the rights of employees (including off duty employees) to

have access to private property owned by their employer, or by a third

party at whose premises they are working, to communicate with coworkers

or with the public.

 

Cases involving claims that rules that prohibit or limit non-business use of

employer supplied e-mail, access to the Internet, cell phones, digital

assistants, or other employer-owned means of electronic communication

unlawfully interfere with the Section 7 protected activities.

 

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 . . . .

 

Cases involving whether a novel form of conduct (e.g., use of banners,

rats, coordinated “shopping,” excessive use of loudspeakers, corporate

campaigns, etc.) constitutes Section 8(b)(4)(i)or (ii) or 8(b)(7) conduct.

 

Cases presenting unresolved issues concerning undocumented workers

including whether undocumented workers, who presented no false

documents to their employer and whose employer knew their status, are

entitled to backpay . . . .

 

Cases involving to what extent an employer with a newly certified union or

a successor employer must bargain over a past practice of unfettered

exercise of discretion regarding discipline or work rules.

 

Cases involving the validity of partial lockouts.

Thanks to the fine investigatory work of Michael Duff (Wyoming, formerly an NLRB field and trial attorney in the Philadelphia Regional Office), I also have previous memos issued by Democratic General Counsel Leonard Page and the Republican General Counsel Arthur Rosenfeld. As Michael notes, it isn’t unusual for a GC to exert considerable control over the processing of cases (especially controlling because, as Michael puts it, “there is nothing ‘advisory’ about Advice’s ‘advice’ - thou shalt follow it - or else”). However, Meisburg’s memo appears to cover a much more specific range of issues than previous memos. This means that the regions will have less discretion over which cases to refer. It also gives a clear sign, which Meisburg explicitly acknowledges, of the issues that he thinks are particularly controversial. Some of the issues are obvious—continued developments after Oakwood, for instance—but many of the others can be considered a shot across the bow of unions. Finally, the large numbers of specific issues that must be referred creates more delay, and the last thing the Board needs is something else slowing it down.

-JH