NLRB - Practice and Procedure
Mid-Winter Meeting - 2003
OFFICE OF THE GENERAL COUNSEL
|MEMORANDUM GC 03-02
||April 21, 2003
TO: All Regional Directors, Officers-in-Charge, and
FROM: Arthur F. Rosenfeld, General Counsel
SUBJECT: Practice and Procedure Committee
Mid-Winter Meeting - 2003
Recently, the Board and I met with the ABA NLRB Practice
and Procedure Committee. As you know, this Committee's focus is on Agency
practice, particularly in the Regional Offices. The collegial and productive
relationship long maintained with the ABA Practice and Procedure Committee over
the years has proved beneficial to the Agency in many ways and I will continue
to support it. This was my second mid-winter meeting with this Committee and as
is their practice, they raised a number of questions about Regional Office
practices. I have summarized those questions and our responses to them below.
I was particularly encouraged by the absence of any
general complaints that the Regions do not enforce the Act evenhandedly. Of
course, in an organization as large as ours and in the course of processing
36,000 C and R cases a year there will be some mistakes. But the paucity of
complaints clearly indicates that you are doing an excellent job enforcing the
law in often highly charged circumstances. I commend you and thank you for the
record you turned in last year. As I said in my February 4, 2003 cover memo to
the Summary of Operations, we handled more cases in less time and with less
staff last year. My meeting with the P&P Committee demonstrated that we did
it evenhandedly as well. I came away from this meeting with increased respect
for the fine work that is done daily in the Regions.
The attached document lists the questions asked by the
Committee and summarizes our answers.
A. F. R.
Release to the Public
MEMORANDUM GC 03-02
Responses to Questions From the ABA
Practice & Procedure Committee Mid-Winter Meeting 2003
QUESTION: What time targets apply to representation
petitions after the disposition of blocking charges?
RESPONSE: Representation cases receive
priority handling by the Regions and this priority is not altered when the case
has been blocked. Although these cases are not specifically included when we
calculate our representation case processing medians, our time targets still
guide the processing of the cases. Thus, removing the time that the case has
been "blocked," it remains the Agency's goal to attempt to schedule
elections within six weeks of the time the petition was filed. Of course,
investigation of an unfair labor practice charge that blocks a representation
petition is accorded the highest priority under the Impact Analysis Casehandling
One committee member reported being told by a Board agent
that there is no target for an "R" case that has been blocked and as a
result his case would be delayed. This agent also reportedly suggested
withdrawing and refiling the petition in order to obtain priority treatment. We
responded that we considered such a suggestion, if made, to be most
QUESTION: Is there any policy limiting the issuance
of large numbers of subpoenas for representation hearing?
RESPONSE: Parties are entitled to the number of
subpoenas that they need to assist them in presenting all relevant testimony and
developing a complete record at a representation case hearing. On occasion
Regions are confronted with requests for large numbers of subpoenas, relative to
the issues and number of employees in a given employee unit, sometimes
encompassing all of the employees in the unit. Such requests potentially can be
so disruptive to an employer's operation that accommodations need to be made.
Regional practices regarding such accommodations vary, but it is the goal of
every Regional Office to avoid unnecessary disruption of employer operations,
while not unduly impacting on the requester's ability to present its case.
QUESTION: What is considered confidential
in the processing of R-cases? For example, is a party's position as to whether a
union demanded recognition in the context of a RM petition confidential? What if
the matter goes to hearing? Are parties' positions regarding a manual or mail
ballot election confidential?
RESPONSE: The efficient and effective processing of
representation cases requires an open and frank discussion of the issues.
Parties are encouraged to take informed and considered positions on the issues
before the Regional Director. These positions are thoroughly examined by the
Regional staff and often discussed with the other parties to the case.
Accordingly, very little of a party's position on the issues is regarded as
confidential. Of course, the identity of card signers and the number of cards
submitted in a showing of interest are closely guarded against disclosure.
A party's position as to whether a union demanded
recognition in the context of a RM petition is not normally confidential and
is an important element in determining whether a QCR exists. The parties'
positions regarding a manual or mail ballot election also are not typically
In response to a follow-up question about whether position
letters are given over to other parties to the case, we advised that they are
QUESTION: Are hearing officers made aware
of the authority given them in the Case Handling Manual (Section 11244.2) to
grant additional time for the filing of post-hearing briefs? Or are they
instructed to refer all requests for extensions to the Regional Director?
RESPONSE: Hearing officers are well aware of their
discretion in ruling on requests for extensions of time for filing of briefs in
Hearing officers are made aware of this section of
the manual during their initial training as new employees and reminded of it
during subsequent training sessions over the course of their careers. They are
instructed that if a party does not "show cause" for the grant of
additional time to file its brief, its request should be denied. They are also
made aware of the Agency's desire to avoid delays in the processing of
representation cases. This policy should influence the hearing officer's
exercise of discretion when ruling on a request for an extension. Parties
dissatisfied by the hearing officer's ruling on requests for extensions have
the opportunity to, and commonly do, request additional time from the Regional
QUESTION: What is the policy on providing
interpreter assistance during the taking of foreign language affidavits? Does
the witness have the benefit of an interpreter during the Region's taking of an
affidavit or interview? Does it matter if a representative of the party offering
the witness is present to provide needed technical assistance (as, e.g., with
such terms as "impasse" or "ratification" in a bargaining
case)? Does the Agency have any plans to add additional bilingual agents?
RESPONSE: It is the policy of the Agency, when
obtaining sworn Board affidavits, to provide affiants with appropriate
interpreter assistance when requested or when a need for such assistance is
It is not our policy to permit representatives of the
parties to offer their witnesses assistance with technical terms because the
interpreters employed or provided by the Agency can do so. This policy
reinforces the authenticity and integrity of witness affidavits and testimony.
The Agency continues its efforts to actively recruit
additional bilingual agents.
QUESTION: Is there a policy requiring a party to
commit to providing witnesses for Board affidavits before the Board will
interview its witnesses?
RESPONSE: The preferred method for taking evidence
from all witnesses is an affidavit prepared by the Board agent. If a charged
party agrees to make a witness available for an interview but refuses to allow
an affidavit to be taken from the witness, the Region has discretion to decide
whether to proceed with the interview on a case-by-case basis. Factors to be
considered are the charged party's proffer of the information to be supplied by
the interviewee, its relevance, the Board agent travel required to conduct the
interview and delay. As a follow up, the Committee advised that some Regions
appear to have a flat policy against conducting non-affidavit interviews. We
advised that no Region should have such a policy. Rather, the Regions should
exercise discretion in each case based on the circumstances present.
QUESTION: Can a policy be developed to
avoid sudden deadlines and lack of sufficient information for a party to
meaningfully respond (without intending to delay on-going investigations or
disclosing witness identities)? Also, this sudden need to respond seems to be
more prevalent in non-impact cases, which have remained dormant for some time.
RESPONSE: The time goals for the completion of
investigations contemplate providing a charged party with an adequate time to
respond to the charge allegations. Last minute deadlines should be avoided. Of
course, there will be differences of opinion between parties and Board agents
about what constitutes an "adequate" amount of time to respond.
Experience shows that these differences can usually be resolved in a mutually
satisfactory manner. Parties or their representatives should contact the
Regional Director if a dispute over scheduling the presentation of evidence
cannot be resolved with the agent.
QUESTION: While there is no committee
consensus on this issue, what is the Agency's thinking concerning a
"comprehensive reexamination" ("with the assistance of amici
briefing") of its current practice of admitting a party's position
statement into evidence, as urged by Board Members Cowen and Bartlett in Roman,
Inc., 339 NLRB No. 24 (September 30, 2002) at footnote 2?
RESPONSE: We advised that we believe that a party
should be held to its position and we noted that this policy is included in the
Region's opening letter.
QUESTION: Is there a policy of issuing
complaint or seeking enforcement when charged parties refuse to comply with
investigative subpoenas? Are subpoenas necessary when the respondent is
RESPONSE: There is no policy of issuing complaint
against a charged party if that party refuses to comply with an investigative
subpoena. These are fact bound decisions and every case is different. An
investigative subpoena should be utilized in the initial investigation of an
unfair labor practice charge only when evidence required to decide whether to
issue complaint is not otherwise reasonably available. Ultimately, a complaint
will issue in a case only after a determination, based upon an assessment of all
the evidence obtained during the investigation, that a charge has merit.
Clearly, if a party voluntarily and cooperatively provides requested evidence a
subpoena is not necessary.
QUESTION: Regarding Section 10(j): What
accounts for the reduced number of cases for which Board authorization has been
sought (as reported in the General Counsel's November 8, 2002 Report on Selected
Cases of Interest and Section 10(j) Cases)? Has the ratio of Regional
submissions and GC requests to the Board changed? If so, what accounts for the
change? What accounts for the reduced number of 10(j)'s being authorized by the
Board? What types of cases are likely to warrant Section 10(j) relief?
RESPONSE: We informed the Committee that on August
9, 2002, General Counsel Rosenfeld issued a memorandum (GC 02-07) in which he
stated that the Section 10(j) program is an important tool in administering the
Act. As instructed in that memorandum, the Division of Operations-Management has
continued to actively monitor the cases identified by the Regional Offices as
being considered for Section 10(j) injunctive relief. Since FY 2000, the number
of cases for which Regions concluded that Section 10(j) relief was not warranted
increased and the number of cases in which Regions requested Section 10(j)
relief declined. Thus, in FY 2002, the Regions recommended 10(j) injunctions in
87 cases as compared to 99 cases in FY 2001.
There was also a decline in the number of recommendations
for Section 10(j) authorization made by the General Counsel to the Board. In FY
2002, the General Counsel recommended that the Board authorize 10(j) proceedings
in 26 cases, as compared to 43 cases in FY 2001. This decline resulted in large
measure from the General Counsel's view, as articulated in GC Memorandum 02-07,
that the allegations of the complaint must be sufficiently strong that the Board
likely will enter the final relief sought on a temporary basis in the Section
10(j) proceeding and there is a real threat of remedial failure if the violation
goes unremedied until the entry of a Board order. Fewer submitted cases met
these criteria, and therefore fewer were recommended for Section 10(j)
Of the 26 cases recommended by the General Counsel for
Section 10(j) proceedings in FY 2002, the Board authorized injunction
proceedings in 16 cases. In GC Memorandum 02-07, the General Counsel also noted
several types of cases for which he is particularly interested in utilizing
Section 10(j): in organizing campaigns to protect employee rights to vote under
the protection of a Section 10(j) court order, employer assistance to and
recognition of unions that represent a minority of unit employees, a successor
employer's refusal to recognize a union that represented a majority of its
employees hired from the predecessor employer; unfair labor practices committed
by recidivist respondents, and serious cases of union picket line violence.
These types of cases, as well as others within the 15 categories, are most
likely to demonstrate the threat of remedial failure that warrants injunctive
QUESTION: Is it the General Counsel's
policy to allow Regional Directors to comment in dismissal letters on the
appearance of inappropriate behavior and to caution against engaging in unlawful
conduct in the future, even though no violation of the Act has been found?
RESPONSE: The Informal Revised ULP Casehandling
Manual, at Section 10122.2 outlines the substantive requirements for a long-form
dismissal letter. Such a letter must provide a detailed summary of the basis for
the Regional Office determination. It should also be sufficient to permit the
charging party to direct an appeal to the dispositive aspects of the dismissal
and should not be merely a statement of the ultimate conclusion. Regional
Directors have discretion to determine what information is necessary to satisfy
In limited circumstances, most recently discussed in
Memorandum GC 02-08 dated September 18, 2002 and found on the Agency Website,
Regional Directors have the authority in exercising their prosecutorial
discretion to issue what we call a "merit dismissal" letter in an ulp
case. RD's will issue such a letter announcing a decision to hold a meritorious
charge in abeyance for 6 months when it is determined that the Board remedy
available does not warrant the expenditure of the Board resources required to
obtain it. The letter that would issue from the Director in these cases would
usually include a discussion of the allegation deemed by the Region to have
merit. The Regional Director will inform the charged party that the charge will
be dismissed if, within 6 months, no additional charge is filed that is
determined by the Regional Director to warrant further proceedings.
QUESTION: Is it the Agency's policy to
disallow non-admission clauses in settlement agreements reached after the close
of an unfair labor practice hearing but prior to the Administrative Law Judge's
decision? If so, is the position of the Charging Party considered? Are any other
RESPONSE: It is the policy of the General Counsel
to provide a full opportunity to the parties to reach a mutually satisfactory
resolution of issues by settlement as an alternative to litigation. Regional
Directors have wide, but not limitless, discretion in establishing standards for
the settlement of unfair labor practice cases. The Casehandling Manual states
that "[n]onadmission clauses should not be routinely incorporated in
settlement agreements." Section 10130.8. The strength of a case is always a
factor in determining settlement requirements. Similarly, the fact that
litigation is complete is another factor. It is the duty of the Regional
Director to consider these factors, as well as the particular allegations in the
case and the unfair labor practice history of the charged party/respondent when
considering the inclusion of nonadmissions language to achieve a settlement that
otherwise effectuates the purposes of the Act.
QUESTION: Is it the Agency's policy that
all settlement agreements, not just those involving recidivists, contain
provisions required of formal Board settlements, including reinstatement of the
complaint, agreement not to contest the Region's allegations in the subsequent
motion for summary judgment and enforcement by the appropriate appellate courts?
If not, what is the General Counsel's policy? Are the Region's aware of the
RESPONSE: The standard Agency settlement agreement
form is generally used in cases where an informal settlement is proposed. The
standard settlement agreement form provides that approval of the agreement by
the Regional Director constitutes withdrawal of any complaint and notice of
hearing as well as any answers filed in response. It does not contain provisions
as to reinstatement of the complaint, an agreement not to contest the Region's
allegations in a subsequent motion for summary judgment or enforcement by the
appropriate appellate courts. Regional Directors, however, have the discretion
to modify the settlement agreement form when they believe it is warranted. In
accordance with Memorandum OM 02-44, available on the Agency's Website, default
language can be included in the settlement agreement where the Region concludes
that there is a substantial likelihood that the charged party will be unwilling
or unable to fulfill its settlement obligations. Again we advised the committee
that because these decisions are left to the sound discretion of the Regional
Director, a flat policy to have such clauses in all cases, would be
inconsistent with the exercise of discretion.
QUESTION: Is there a procedure in place
to ascertain recidivism in considering informal settlement agreements in or
RESPONSE: Regions check their records, including
the electronic Case Activity Tracking System, to identify cases in which a
charged party executed settlement agreements before deciding whether to approve
an informal settlement agreement in a current case. They also can check the
Appellate Court "look-up" system and contact other Regions.
QUESTION: What has been the Agency's
experience in applying the mid-February 2002 "skip counsel"
memorandum? What are the Agency's plans for issuing the further guidance
indicated in its memo?
RESPONSE: "Skip Counsel" issues are
handled by the Special Litigation Branch of the Division of Enforcement
Litigation at the Agency's headquarters in Washington, D.C. Since Special
Litigation started keeping statistics late in calendar year 2001, the Branch has
handled almost 200 requests for assistance from Regional Offices. Most of those
cases concerned contacts with former supervisors of represented parties during
unfair labor practice investigations. Different jurisdictions employ different
rules governing attorney ex parte communications with former supervisors of a
party represented by an attorney. Therefore, operating guidelines require
Regional Offices to call Special Litigation for clearance before interviewing a
former supervisor without prior consent from the party's attorney. As we develop
additional experience working with "skip counsel" rules in different
jurisdictions we will issue further general guidance to the Regions.
QUESTION: How can the Committee assist
the Agency in its ongoing efforts to improve the quality of court reporting and
RESPONSE: The Agency is continuing its efforts to
improve the quality of court reporting. The Agency has explored other types of
reporting technologies this year, including modified "real time"
reporting services. Although it appeared that such technologies might have the
potential for improving the accuracy and timeliness of transcripts, the Agency
ultimately determined that such technologies were prohibitively costly for the
Agency's limited resources this year.
However, in an effort to increase the pool of companies
bidding on our reporting contracts this year, the Agency revised the contracts
specifications to make them shorter and easier to understand. The Agency also
provided pre-bid teleconferenced information sessions to prospective contracting
candidates to explain our specifications and to address any questions. Some new
contractors were present at these information sessions and we are hopeful that
the sessions will generate additional participants in the bidding process.
The ABA Committee was informed that it can assist the
Agency to ensure compliance with reporting contract specifications by contacting
our point person, Paula Roy, Chief, Contract and Procurement Section, with
reports of deficiencies and timeliness problems with the transcripts. The Agency
can only move to correct transcript errors and to replace unsatisfactory
contractors when deficiencies are brought to our attention. Our Regional
Directors also are closely monitoring reporter performance.