28 day free trial

 

 

  

LawMemo - First in Employment Law

Home MyLawMemo About Us   Arbitration Articles

NLRB - National Labor Relations Board 

 

  


28 day free trial



NLRB General Counsel's Final Report

NLRB GENERAL COUNSEL FRED FEINSTEIN ISSUES FINAL REPORT ON ORGANIZATIONAL AND CASEHANDLING DEVELOPMENTS AND RECURRING LEGAL THEMES DURING HIS TENURE SINCE MARCH 1994

Fred Feinstein, General Counsel of the National Labor Relations Board since March 1994, today released a final report on the organizational and casehandling initiatives undertaken and recurring legal themes during his tenure. His appointment lapses at the end of the current session of Congress. The attached report updates his earlier four-year report, Change and Challenge at the National Labor Relations Board, which issued on April 27, 1998.


Highlights of My Term
as
General Counsel
of the
National Labor Relations Board


Fred Feinstein
General Counsel, March 1994--November 1999


Introduction

I have served as General Counsel of the National Labor Relations Board since March 3, 1994 and have recently announced that at the end of the current session of Congress, I intend to pursue other opportunities when my current appointment lapses.

Approximately 20 months ago I issued a report--Change and Challenge at the National Labor Relations Board--compiling and summarizing the initiatives that have taken place in the NLRB's Office of the General Counsel for the first four years of my tenure. During the ensuing 20 months we have continued the process of self-examination and reinvention, to build upon the successes of the preceding four years and to prepare to face the issues of the new Millennium.

Today I issue this update to Change and Challenge in which I recap the highlights of the organizational and case handling initiatives that we have undertaken since 1994. In addition I provide a summary of some of the important and recurring legal themes that have characterized the substance of the Office of the General Counsel's work during these past five-plus years.

 

Finally, I repeat what I said last year: the Agency has a dedicated, experienced and well managed workforce and I have been confident in relying on the career staff to analyze and develop each and every initiative that has been implemented. To the extent that we have succeeded the career staff truly deserves the credit. I wish them all the best.

 

Fred Feinstein
General Counsel
November 18, 1999


I. Organizational Initiatives

Impact Analysis

At the core of the Office of the General Counsel's mission is the investigation and preliminary determination of unfair labor practice (ULP) charges. Because under the Act the General Counsel has final authority to decide whether to initiate formal adjudication of alleged ULPs, the merit determination is a key decision point in the life of any case. Historically approximately two-thirds of all ULP charges are dismissed or withdrawn following initial investigation. This winnowing process is an important source of credibility with the public. Moreover, given the high settlement rate that the Office of the General Counsel (OGC) has historically attained, a favorable merit determination frequently paves the way for a prompt, final resolution of the case without resort to extended litigation.

For many years the investigation of new ULP charges followed a first-in, first out model. The balance of case intake levels and staffing permitted an operational principle requiring an initial investigation and action on merit determination--complaint or dismissal-within 45 days. These principles for many years produced a fairly static inventory of about 3,000 cases or one month's intake on hand at any time.

However, in the late 1980's and early '90's, as staffing levels declined and the rate of case intake remained relatively unchanged, the backlog of cases in our Regional Offices increased dramatically. More cases were pending in our offices and for the first time there were significant delays in the investigation of those cases. This trend was exacerbated by the growing complexity of cases as a result of changing patterns of industrialization due to globalization of the economy and related factors. This is demonstrated by the fact that, since 1991, the average length of the transcript of a ULP hearing has increased 30 percent, from 473 pages to 616 pages.

By 1995 it had become clear that the Agency should consider how to improve upon its case management to better assure that it was responsive to the Agency's mission and the public's needs. In addition, the passage of the Government Performance and Results Act (GPRA) required the NLRB, like all government agencies, to be more sensitive to the real-world outcomes of its work.

In order to address these concerns, a committee of Agency managers and employees was formed under the aegis of the Agency Partnership Council. Taking the lead was a Regional Office Work Group--consisting of representatives of all levels of supervision and management in the Regions, along with members of G.C. Headquarters staff and of the National Labor Relations Board Union (NLRBU). Based on wide-ranging experience, informal conversations and surveys of Agency customers and staff, the group developed an understanding of the primary requirements needed to formulate and implement a system of case prioritization.

In March 1995 the Work Group's Preliminary Report and Recommendation for the establishment of an "Impact Analysis" approach to case prioritization and management was circulated within the Agency. Thereafter, a revised report issued in November 1995, followed by a memorandum announcing the advent of the new system, copies of the Field and Headquarters reports, and a Training Manual.

Impact Analysis was implemented in the Regional Offices over a five month period in 1996--a difficult and challenging time throughout the government because of the conflicts between the Executive and Legislative Branches that had led to the unprecedented government-wide shutdown of late 1995 and early 1996. Approximately one-third of the Regions implemented Impact Analysis in January and the remaining Regions started in either April or June. In addition to a detailed guideline memorandum and a training manual, two members of the Impact Analysis Committee (one management representative and one union representative) visited each Regional Office to train the Regional Office personnel. Members of the Impact Analysis Committee remained in contact with each Regional Office to assist them with any issues that arose under the new system.

Under Impact Analysis all new ULP cases are designated as belonging to one of three categories, with Category III being the cases of the highest impact and Category I being of lowest. Since the initial categorization of a case determines the resources and urgency to be given the investigation, it is important that this determination be made as quickly as possible. Cases can be re-categorized during the investigative stage if warranted. Generally about 20 percent of unfair labor practice cases fall in Category III, about 45 percent in Category II, and 35 percent in Category I.

Of principal importance, time goals for processing a charge through investigation and implementation of a Regional determination--by issuance of complaint or dismissal or withdrawal--are different for each category. The time targets are 7, 11 and 15 weeks from the filing of the charge in Category III, II and I cases, respectively. These time targets reflect two objectives: first, to assure that resources are focused on our most important cases; second, to reflect the realities of the workload in the field.

Another significant aspect of Impact Analysis is that it makes possible the utilization of alternative investigative techniques. While Category III and II investigations tend to require greater in-person contact with investigators, in most instances Category I cases can be investigated, at least in part, through telephone contact or the use of questionnaires or other written instruments.

We began measuring overage performance by Impact Analysis Category on a national basis in October 1996. As of October 31, 1996, 20.2 percent of Category III cases were overage (i.e., action had not been completed within time targets), compared to 31.9 percent of Category II cases and 23 percent of Category I cases. By the end of Fiscal Year 1998, the cumulative Category III and II rates had been reduced to 14.9 percent and 23.6 percent, respectively. In contrast, Category I cases showed a slight increase, to 24.5 percent. And, as of the end of FY 1999, the rates were 9.7, 17.0 and 15.2 percent (based on preliminary data).

This trend is generally consistent with the intent of the program--i.e., the Regional Offices are giving increased emphasis to the cases with the greatest impact on the public. However, it would appear that some adjustment is needed in the balance between Category II cases-the most populous group-and those in Category I. Indeed, the Agency's publicly stated goals under GPRA for FY 2000 call for projected overage rates of no more than 10, 15, and 20 percent in Categories III, II and I, respectively.

The Vice President's National Performance Review recognized the Impact Analysis Program with its Hammer Award, for helping to "build a government that works better and costs less," in 1997.

In late 1998 the Impact Analysis Committee issued a report on its review of how the program had been faring. The report found that Impact Analysis apparently was succeeding in allocating significant resources to the highest impact cases. The report also noted a concern that Category I cases sometimes remain pending longer than necessary. Some regional managers have observed a reluctance to move those cases more quickly, even where available resources permitted. While this is an issue that I hope will be addressed in the future, I do not believe that it represents a serious structural flaw in the program.

It is clear that the success of Impact Analysis is to a significant extent a consequence of the participatory, deliberative process that led to its adoption. Those who would be charged with implementing the system in their daily work-and whose performance would be measured by its precepts-had the primary responsibility for designing the system. This process in large part is why Impact Analysis seems to be widely accepted and working as it was intended to better focus agency resources.

Representation Case reinvention program

There is no responsibility the NLRB undertakes that is more important than conducting elections in a fair and regular manner in order to determine whether or not employees wish to be represented by a union. Lack of predictability or delay in the resolution of this question increases the likelihood of workplace disruptions and also leads to increased costs to employers and labor organizations alike.

Historically, the Agency's established performance goals for handling of R cases in the field offices measured only medians-the time within which 50 percent of cases were processed. For instance, elections in at least 50 percent of all cases were to be conducted within 50 days of the filing of the petition. The time frame for processing those cases that took longer than the median times varied widely and often substantially exceeded the median. Moreover, there was no process for identifying the factors that contributed to delays.

After fully considering the recommendations of internal Agency task forces and obtaining public comment, through use of a customer survey and other means, reform of our representation case procedures were implemented in February 1996. These revised procedures streamlined the representation case process by minimizing unnecessary delays and providing increased consistency, uniformity and predictability. They included provisions for docketing priority, expedited service of documents, prompt communication to the parties of the anticipated dates for hearing and election, consecutive days of hearing, early identification and narrowing of issues and prompt filing of post hearing briefs. Oral approvals and alternative procedures were established to minimize unnecessary delays.

In early 1997 we changed the field management performance appraisal system to incorporate new time goals. Under those standards, at least 50 percent of elections are to be held within 42 days of the filing of the petition; at least 7/8 of elections are to be held within 56 days, and no election is to be held more than 85 days from the filing of the petition, except due to circumstances beyond the Region's control. New goals were also implemented for processing of post-election issues. These included issuing reports in median times of 35 days in cases not requiring a hearing and in 95 days in those requiring one, and of issuing reports in all post-election cases within 120 days (except in circumstances beyond the Region's control).

In December 1997, acting on a survey conducted the previous year, the Representation Cases Best Practices Report issued, summarizing best practices in six areas: initial R case processing, election agreements, hearings, decision writing, elections and post-election. Shortly thereafter I issued a memorandum urging all Regions to adopt the practices set forth in the Report. We now solicit, on an annual basis, practices and procedures that could prove useful in representation case processing.

In 1999 a revised edition of the Case Handling Manual for Representation Cases was issued, incorporating and institutionalizing many of the changes and practices that had been developed and identified over the preceding several years. The Manual is available on the Agency's web site and will prove to be a useful resource both internally and for the public for years to come.

I am particularly pleased and proud to note that success in this area has been measurable, evident, and consistent. The following table shows how case processing times-particularly those of the "post-median" cases-have come down since the baseline period of late 1993.

Representation Case Processing Time Improvements, by Percentile

 

FY 99 FY 98 FY 97 FY 96 FY 95 10/93-1/94
Initial Elections (days from filing to election
Median 41 42 42 44 44 50
Q3 Med. (62.5%) 42 42 43 48 47 53
Q4 (75%) 45 45 49 52 51 60
Q4 (75%) 45 45 49 52 51 60
Q4 Med. (87.5%) 52 51 57 66 61 75
RD Decisions (days from filing to issuance):
Median 36 36 37 43 42 45
Q3 Med. (62.5%) 42 41 42 47 44 56
Q4 (75%) 45 44 45 60 50 84
Q4 Med. (87.5%) 56 53 59 87 79 131
Postelection (days to report, no hearing):
Median 23 26 25 27 27 32
Q3 Med. (62.5%) 23 26 25 27 27 34
Q4 (75%) 34 34 35 39 36 41
Q4 Med. (87.5%) 41 41.5 48 54 49 63
Postelection (days to report, hearing):
Median 78 77 71 85 83 89
Q3 Med. (62.5%) 78 77 71 85 83 96
Q4 (75%) 92 92 95 116 100 121
Q4 Med. (87.5%) 114 98 135 160 146 197

In 1997 the Vice President's National Performance Review awarded the Representation Case Study Committee a "Hammer" award for the improvements in performance that resulted from all of these reinvention efforts.

The Board has also been striving to improve their processing of R-cases. While there has been some progress, particularly as a result of the efforts of Member Margaret Browning before her the tragic, untimely death in 1997, Board members have acknowledged there remains much to be done. I am hopeful that the Board will continue to examine both its formal procedural rules and its internal operating practices as they affect the time taken to move from the filing of a petition, to an election, to a final certification of an election's outcome.

10(j) Program

Section 10(j) authorizes the Board to seek, and district courts to grant, interim injunctions pending the completion of the Board's administrative processes in those cases where a respondent might otherwise be able to accomplish its unlawful objective before being brought under legal restraint by a Board order. To insure that the Board's ultimate remedial orders are effective, it is sometimes necessary to obtain interim relief to preserve or restore the status quo in those cases that present a threat that the passage of time will nullify the Board's final order. We have paid considerable attention during my tenure to ensuring that we make the most appropriate use of this important remedial tool.

While some Regional offices historically have used 10(j) consistently, appropriately, and effectively, other Regions used 10(j) infrequently or not at all. Accordingly, we took steps to ensure that all Regional Offices were properly using this remedial tool. In June 1994, we directed all Regions to implement a mechanism for effective identification of potential 10(j) cases. During the Summer of 1994 we trained Regional personnel in the investigation and analysis of issues unique to the question of whether interim relief is "just and proper" in a particular case and we prepared and distributed to all offices a Section 10(j) Manual on investigation and litigation of 10(j) cases.

This initiative showed impressive results in the early years of 1994 and 1995. Thus, in 1994 we submitted 85 10(j) requests to the Board for authorization to litigate, and in 1995 we submitted 109 such requests-compared to 42 in 1993 and 27 in 1992. More important than raw numbers, however, is that fact that the use of 10(j) was more evenly distributed among the Regional offices. At the same time, we have maintained a commendable success rate in litigating these cases (88 percent in the four years following the beginning of the initiative in March 1994 and for FY 99; 95 percent for FY 98).

Following these early successes we continued to review the operation of the 10(j) program with an eye toward making the most effective use of our resources. We evaluated cases involving organizing campaigns and concluded that if there is no indication that organizing activity is likely to resume in the interim, it may be that 10(j) relief is not necessary. Accordingly, we directed Regional offices to include in their investigation of the propriety of relief in organizing cases a determination of the status of the organizing campaign and the interest of discharged employees in reinstatement. Similarly, given the high rate of settlement in authorized 10(j) cases, we recognized that we could achieve the 10(j) objective of a timely remedy without resort to federal court litigation by scheduling a prompt administrative hearing. In late 1994 we instituted a policy of scheduling expedited administrative hearings in cases where the Region concluded that immediate relief was necessary but settlement also was likely upon the initiation of litigation. The expedited hearing process also proved useful in considering whether 10(j) relief is appropriate, where a respondent has not cooperated in the investigation of the unfair labor practice case but we could anticipate that substantial defenses would be raised.

With these refinements of the 10(j) program, the number of cases submitted to the Board for authorization fell from the 1994-95 levels to 59 in FY 96, 62 in FY 97, 53 in FY 98 and 58 in FY 99.

The details of these programs and their results are set out in my four-year report on the use of 10(j) injunctions, dated July 24, 1998, available on the Internet at: (http://www.nlrb.gov/press/r2302.html)

Since the issuance of that report, we have been engaged in further efforts to develop performance measures to aid our understanding of whether the Regional Offices are continuing to make appropriate use of 10(j). Beginning in early 1998, the Regional Offices have reported on a quarterly basis the 10(j) activity in their offices in which a charged party had been notified that the Region was seriously considering whether to seek 10(j) relief. These quarterly reports are used to oversee the Regional Offices' handling of 10(j) cases and to provide information about trends in the kinds of cases that are likely to call for 10(j) relief.

Expanded Use of Information Technology (IT) to Facilitate Casehandling, Management and Public Outreach

As reported previously, the Agency has undergone a sea-change in its use of information technology (IT). Use of word processing software to generate documents is all but universal. Spreadsheets are commonly used to perform quantitative analysis for backpay computation and case management. The combination of internally generated and commercial legal databases have revolutionized legal research. We have outgrown the first generation of electronic mail software and are embarking on a system-wide upgrade that will enhance both internal communication and our ability to communicate with the public via email.

The Agency's web site has been in operation for 2-1/2 years and continues to grow. Recent additions include the latest revision of the representation case manual and charge and petition forms. There are now 13 volumes of Board decisions online, with plans to add back issues as funds become available. A Spanish-language section has been added, as has a section showing employment opportunities in the Agency. Future plans include the use of internet technology to create an "intranet" that will become a central source of shared information within the Agency.

CATS, the integrated, Agency-wide case tracking system, has been installed in more than half of the field offices, and is being embraced as users become familiar with its many capabilities and the ease of its use. We expect to have it fully implemented in all field offices by the end of FY 2000 and fully operational by the end of FY 2001. Also currently underway is development of the 11 Headquarters modules, with a planned completion date of late FY 2001.

A wide area network (WAN) has been installed to support the increased traffic that CATS, the e-mail upgrade, and intranet, among other uses, will generate.

To facilitate and support these changes, in 1997 the former Management and Information Systems Branch was designated the Information Technology Branch (ITB) and was reorganized internally. These changes-along with designating the Branch Chief as the Agency's Chief Information Officer and elevating the position to the Senior Executive Service--have strengthened the administrative structure on which the Agency's IT program depends.

These developments have not been painless. Particularly in years when we have faced inadequate funding, the tradeoff between investment in IT and other vital needs, such as staffing and other resources for case handling, has required difficult choices. Nevertheless, I firmly believe that the investments that we have made in IT-and that we must continue to make-have been and will continue to be vital to securing the Agency's ability in the future to perform its core casehandling tasks as well as to manage itself organizationally.

Best Practices

Over the years, one hallmark of the Office of the General Counsel's approach to case handling in the field has been the flexibility that the Regional Offices have been given to enable them to tailor their work practices to the geography and legal culture of the areas they serve. The result has been a variety of approaches to the handling of both C and R cases. In recognition of this culture, we felt that the "best practices" model might facilitate the sharing of successful tactics and strategies. In January 1998 a General Counsel memorandum issued to all Regions, attaching a copy of the R Case Best Practice Committee report and urging Regions to adopt the practices set forth in it. Some of these have since been incorporated into the revised Case Handling Manual for R Cases.

In the months that followed the release of the R Case Best Practice report, we replicated the process with C cases. This past August we released a General Counsel Memorandum setting out the report of the C Case Best Practice Committee. The report identified numerous "best practices" and "practices worthy of consideration"-the former to be normally adopted in every Region absent good cause, and the latter to be seriously considered for adoption, taking local conditions into account.

Compliance Program Review

An effective compliance program is essential to maintaining the NLRB's credibility as a law enforcement Agency. Unfortunately, it is also one that has suffered from insufficient resources and from the difficulties inherent in properly measuring performance. To address these concerns, we undertook a comprehensive review of our compliance activities, with a focus on how we could enhance our effectiveness and efficiency within the existing resource constraints. Between early 1997 and early 1998 we launched several new initiatives including the reinvention of the Contempt Litigation Branch as the Compliance and Contempt Litigation Branch to place greater emphasis on proactively assisting the Regions with their compliance work--particularly during the earlier stages of case processing when cases have a higher potential for achieving full remedial relief; and the application of Impact Analysis principles to compliance work.

Among the principles adopted were:

  • Encouraging the Regions to make additional efforts to "front-load" compliance work by placing greater emphasis on identifying and addressing potential compliance problems during the earliest stages of case processing, rather than deferring such issues until a Board order or court judgment has issued;
  • Asking the Regions to identify, at the earliest possible opportunity, cases which do not warrant further compliance efforts because of the clear likelihood that compliance will never be achieved;
  • Giving Regions authority to employ innovative methods to calculate backpay, such as the use of statistical sampling and other methods of approximation.
  • Encouraging the Regions, in appropriate cases, to litigate compliance issues during the unfair labor practice proceedings, both with respect to liquidating backpay and other monetary remedies and with respect to naming entities that appear to have derivative remedial liability.

With respect to the use of Impact Analysis in compliance work, we have defined three categories of compliance cases. We have adopted time targets of 13 weeks, 17 weeks, and 21 weeks for cases in Categories III, II and I, respectively, and have set overage tolerance levels of 10 percent, 13 percent and 15 percent, respectively, for FY 99.

Recently the Compliance Branch has developed a two-day compliance training program, which it has field-tested in two Regions. The program covers sources of information for alter ego, successor and corporate veil piercing investigations; drafting of discovery documents and conduct of depositions; tracking down corporate assets and fraudulent conveyances; and drafting collection documents and asset freeze and other protective orders. The program discusses these matters in the context of compliance cases actually pending in the Region involved. The Branch also created a compliance newsletter that is distributed to the Field. It provides information regarding successful compliance case processing techniques, successful Regional compliance programs and compliance assistance that is available to the Regions from Headquarters.

We are now beginning to evaluate our experience with the application of Impact Analysis to compliance cases. In addition, we are continuing to study how best to measure Regional Office performance in the compliance area. We are also considering the use of a "best practices" model to better inform our compliance work.

Other Programs to Increase Efficiency, Streamline, and Lighten the Load

In response to the Administration's program to reinvent government, embodied in the Vice President's National Performance Review; to the mandates of the Government Performance and Results Act (GPRA); and to fiscal concerns, we undertook a number of other steps to increase overall efficiency, to streamline our processes, and to remove unnecessary impediments to the accomplishment of the priority programs described above. These included:

  • Office of Appeals Reinvention: following an exhaustive review of its internal work processes, the Office of Appeals, which reviews Regional Office dismissals of unfair labor practice charges, revamped its work processes to better ensure that the cases most likely to have prosecutive merit, and those of the highest impact, receive the most prompt action. This effort received a Hammer Award from the Vice President's National Performance Review.
  • Interregional cooperation: The Interregional Assistance Program (IRAP) enables Regional Offices with staff shortages and case backlogs to transfer cases to other Regions to handle investigations on a timely basis. The program represents a formal departure from an era when Regional Offices were understood to be relatively autonomous from one another, and is an effective means of better balancing the case load among regional offices. The IRAP was the subject of the Office of the General Counsel's fourth Hammer Award in June 1999. In recognition of this and the other three Hammer Awards bestowed on the Office of the General Counsel, we were honored with a letter of special recognition from Vice President Gore.
  • Postal Service Agreement: In July 1997 the Agency facilitated the negotiation of an agreement between the United States Postal Service and the American Postal Workers Union, AFL-CIO ("APWU"), for an alternative dispute resolution ("ADR") procedure to be used in cases involving requests for information relevant to bargaining. This agreement led to a dramatic reduction in the number of charges filed with the Agency against the Postal Service. Building on this success, we have worked with the same parties to develop ADR procedures for handling other types of labor-management disputes. These have led to an overall reduction in the number of ULP allegations of all types involving the Postal Service.
  • Major cases: One of the biggest challenges facing our Regional Offices occurs when a dispute of unusual magnitude leads to the filing of one or more charges, sometimes in more than one Region. The investigation and litigation of such cases require substantial resources and staffing and they often present unusual remedial challenges. While each of these cases is unique, there are lessons to be learned from our experiences in handling these challenging matters. During my tenure, we undertook and in-depth review of how such cases are handled. A "best practices" report was issued containing recommendations on how Regional Offices can best facilitate and expedite the handling of such cases.
  • Delegations; Paperwork Reduction: The 1998 report detailed the numerous steps we had taken to streamline and reduce paperwork by delegating decision making authority to the lowest possible level. We subsequently issued further delegations to the Associate General Counsels for Enforcement Litigation and for Operations-Management to respond to most requests for evidence under Agency "housekeeping" rules. Finally, completion of the Case Activity Tracking System within the next two years will greatly facilitate production of most case activity reports, and will make the submission of remaining reports significantly less burdensome.

Personnel Management Initiatives

Along with the operational initiatives described above, we have taken numerous steps to improve communication and relationships among the various segments of the Office of the General Counsel's workforce-which currently numbers more than 1,600-and to streamline, enhance flexibility, and recognize increased responsibility. This has at times been a challenging task, because of the Agency's decentralized field structure, along with the normal tensions that exist between headquarters and the field in any large organization. Nevertheless I depart with the hope and belief that our staff has become more cohesive as a result of these initiatives.

  • Partnership: In April 1994 Agency management and union officials signed a Partnership Agreement, informed by a recognition that in designing and implementing the comprehensive changes needed to reform Government, it is necessary that the culture of Federal labor-management relations change so that managers and employees' elected-union representatives work together as partners. The partnership has been the locus of discussion and the springboard for many of the initiatives described above-particularly Impact Analysis-as well as others. Throughout, the Partnership has provided a forum for all segments of the Agency's diverse workforce to meet, to exchange ideas and perspectives, and to attempt to reach consensus over what is best for the Agency.
  • Improve Consultation with Field Management: As a concomitant to the partnership process, communication between field management and headquarters has been enhanced by the development of the Field Managers' Association, (FMA) which consults on a regular basis with the Division of Operations-Management. Through the FMA, field managers are encouraged at several levels to reach consensus regarding field management issues and to promote an ongoing dialogue between field managers and headquarters management. In addition regularly scheduled telephone conferences and at least one face-to-face visit annually have improved communication between the Regional Directors' Committee and the General Counsel. In an effort to keep all supervisors and managers current with breaking developments of particular interest to them, e-mail bulletins emanating from my immediate office are sent on a regular basis.
  • Streamlining of Supervision: During the past five-plus years the field has undergone a substantial decrease in the number of supervisors, in both absolute and relative terms. In June 1994 there were a total of 155 supervisors in the field supervising 710 professional employees, or a ratio of supervisors to employees of 1:4.6. In contrast, as of September 30 1999 there were 119 supervisors working with 819 field employees, a ratio of 1:6.9. The change is even greater if one takes into account the fact that the time supervisors spend performing "line" work has also increased.
  • Flexible Workplace; Resident Agents: Technological advances have made it feasible for the twin aims of speed and economy to be met by permitting some employees to work at home on a part-time basis, and by stationing agents in locations distant from established field offices and near pockets of regular intake. These "resident agents" works out of their homes, using Agency-supplied computers and related equipment which enable them to communicate with their Regional Offices, with parties and others, and to conduct necessary legal research and other business. The result is a noticeable reduction in travel costs in some Regions and improved public access to Board agents. There are currently six resident agents employed in the field, and we are continually exploring additional placement opportunities.
  • EEO; ADR; Diversity Committee: During the past 18 months we have worked to streamline our internal EEO procedures. The principal feature of our efforts has been a simplification of the informal investigation with an aim toward better achieving where possible a prompt resolution of disputes. An additional feature has been the increased availability of alternative dispute resolution (ADR), consistent with Administration policies and the well-established institution of arbitration in the field of labor-management relations.

The Diversity Committee was first convened in February 1998 and continues to meet on a regular basis. The mission of the committee is to make recommendations to the Partnership concerning the policies, procedures and programs that should be adopted, rescinded, or maintained to ensure that the Agency fulfills its goals of actively recruiting a diverse workforce, encouraging the retention of employees with diverse experiences, and providing promotional opportunities that will effectively utilize the diverse talents and experiences of all its employees. This past March, the committee forwarded several recommendations to the Partnership regarding recruitment. Recently, the committee submitted a status report to the Partnership focusing on ways to accurately assess the Agency's diversity climate.

  • Training: A comprehensive training program for all employees at all levels of experience or responsibility is crucial to the Agency' ability to do its job effectively and efficiently. Unfortunately, budgetary pressures have too often resulted in the cutback of funds available for training. In order to enhance the effectiveness of the Agency's training program, I have established the position of Training Coordinator, who upon selection will report directly to the Office of the General Counsel.

II. Developments in the Law-the Changing Workplace

In addition to the responsibility as chief administrator, the other important function of the General Counsel is to carry out the statutory role of prosecutor. The Act assigns the General Counsel "final authority" in the investigation and prosecution before the Board of unfair labor practice allegations. Commentators often point to this role of the General Counsel as an important bulwark against frivolous litigation.

Many of the more significant decisions I have made on legal issues are reflected in the series of case handling reports that I have issued from time to time during my tenure. The three most recent of these-which cover the period from October 1, 1995 to August 31, 1999-are available on the NLRB's web site, (http://www.nlrb.gov) (specifically, under press releases dated November 20, 1996; September 4, 1998; and November 3, 1999). These contain the substance of Advice Memoranda and Appeals Minutes to the Regional Offices directing the positions to be adopted in selected cases.

My nearly six years as General Counsel have been a time when significant changes in technology and business organization have required us to think about familiar legal principles in new ways. Technological changes have meant that the once-universal and familiar concept of a "workplace" has given way in many industries to more fluid concepts, with implications for the broad range of issues concerning the ways in which employees can exercise their 7 rights to communicate and otherwise act in concert. Similarly, globalization and the demise of vertically integrated business enterprises have required new thinking about the essential nature of the "employer"-the construct upon which the basic principles of collective bargaining have been built. And, as work consisting of information processing or other endeavors requiring specialized knowledge has grown, the distinction between "employee" and "supervisor" is often more blurred than in the past. Finally, the efforts of unions to respond to these trends by developing new approaches to organizing has generated yet another constellation of legal issues.

In developing what I hope and believe have been sensible approaches to all of these developments that are consistent with past principles, I have been greatly aided and guided by the Office of the General Counsel's career staff and particularly by the Division of Advice and the Office of Appeals in Washington.

What follows is a summary of some of the legal issues on which I have taken a position, that have arisen from the changing nature of the workplace and of work itself.

Section 7 in Cyberspace

 

Several cases have arisen from employers' rules limiting employee use of e-mail to business-related purposes or prohibiting the use of e-mail for unauthorized or personal purposes. In the first of these, employees, located in an employer's engineering department used computers for significant portions of their work and e-mail was their normal method of communication. In addition, the evidence showed that the employer had enforced its computer rule discriminatorily against activists in a union organizing drive. I authorized a complaint attacking not only the discriminatory application of the prohibition, but also the rule itself as overbroad. The Region was instructed to argue that the employer's e-mail system in fact was the employees' "work area;" that their 7-related communication was more like solicitation than distribution, since it could be expected to lead to a spontaneous response or conversation; and that under Republic Aviation the employer must permit solicitation in work areas-which include the email network-unless it could show special circumstances that would make such a prohibition necessary in order to maintain production or discipline. The case settled before a hearing.

In a recent case I have instructed the Region to argue that the same principles apply, notwithstanding that the employees spend considerably less work-related time on the employer's e-mail network. Thus, the e-mail network is a "work area" inasmuch as employees are expected to utilize e-mail and related communications on that system as part of their job.

A related issue that will need to be addressed in a future case is how the concept of "working time" applies in the setting of a professionalized workforce that may perform a variety of functions, and not necessarily at a common location. It seems clear at least that what is "working time" in such a workplace is not as clear as it once was.

Other issues will also inevitably come into focus as more of these cases come to us. Some that I foresee include:

  • Under what circumstances an employer may preclude employee electronic communication that is otherwise protected;
  • Whether an employer may limit use of email based on concerns about liability for sexual harassment or similar improper verbal behavior;
  • To what extent an employer may limit the access, by electronic means, of nonemployees to employees at work; and
  • To what extent an employer may engage in monitoring of protected employee communications as a consequence of its administration of email systems or otherwise.

The "Virtual Workplace"

Several cases have involved what I have called the virtual workplace-i.e., a work environment characterized by mobile employees without any fixed "home base" or with one that is visited only infrequently. In Technology Services, we issued a complaint alleging that the employer violated 8(a)(1) by denying the union's request for a list of employee names and addresses to enable it to contact them as part of an organizational campaign. The request was made before the union had attained the 30 percent showing necessary to obtain an Excelsior list. The unit employees were computer technicians who were dispersed over a number of Great Plains and Rocky Mountain states, who did not report to any central location for work but primarily worked out of their homes and cars to service the employer's customers. Their communication with the employer was by an electronic device supplied by the employer, and rarely involved coworkers. We argued that given the geographically widespread and atomized nature of the "workplace" and the absence of any reasonable alternative means of identifying and contacting unit employees, their 7 rights could not be exercised in any meaningful way unless the employer made the requested information available. Although the ALJ initially dismissed the case on the basis that the complaint did not present a viable theory of violation, this ruling was reversed by the Board1 and a trial was held. The ALJ's decision dismissing the case on the merits is currently pending before the Board.

Joint Employers; Contingent Workforce

One feature of modern business organization is the tendency away from centralized, vertically-integrated firms that perform the entire process of creating, producing and delivering a product or service "under one roof." Instead it is becoming increasingly common for each component of the production process to be separately organized and run. As a further stage of this phenomenon, the supply and management of labor or "human resources" is increasingly the function of specialized businesses. With growing frequency unions are confronting organizing situations where the immediate "employer" does not have complete control over the employees' working conditions or environment. In three companion representation cases in which I participated as amicus when the Board held oral argument--Jeffboat Division, American Commercial and Marine Services; M.B. Sturgis; and Value Recycling--I asked the Board to reexamine the restrictive basis upon which entities are considered joint employers of employees.

Under the Board's stated test an employer is considered a "joint employer" of a separate entity's employees when it shares or codetermines matters governing essential terms and conditions of employment. Until the 1980's, the Board regularly found that separate parties or commercial businesses having actual or potential control over employment conditions of a group of employees were joint employers of those employees. In the 1980's, however, the Board began to find joint employer status only where the record reflected actual control over "essential" employment conditions. In Jeffboat and its companion cases I urged the Board to return to its earlier application of the traditional joint employer test-i.e., to find joint employer status whenever there is even potential control.

In a supplemental post-argument brief, I took the further position that a finding of joint employer status for the purpose of imposing a bargaining obligation should not require the consent of all of the joint employers. Instead I urged the Board to simply apply a traditional "community of interest" analysis and to find an appropriate unit whenever such community exists and any one of the joint employers exercises sufficient control over all employees that the enterprise cannot be said to consist of "competing" employers. The Board has not yet ruled on these cases.

"Neutrality" Agreements

Partly in response to some of these trends, unions have begun to make greater efforts to obtain "neutrality agreements" during organizing campaigns or in collective-bargaining agreements. Such agreements include not only traditional "Kroger clauses"-requiring recognition and applying the contract at newly-acquired or opened facilities based on a showing of majority support-but also other agreements designed to facilitate success in organizing. For example, unions have begun to seek employer waivers of their Lechmere rights to deny, consistent with state law, access to their property to union organizers; as well as employer agreements to provide names and addresses of employees at the start of an organizing campaign, and to refrain from exercising their 8(c) right to express their views about unionization.

The issues raised by these kinds of union proposals are ones of first impression, as there is no Board decision expressly approving or condemning them. One of the most important questions is whether such provisions are mandatory or permissive subjects of bargaining-that is, can unions insist to impasse or even take economic action to obtain them?

In one case, Sahara Hotel, I issued a complaint alleging that the union unlawfully insisted to impasse on an access clause, an employer no-speech provision, and a provision requiring disclosure of employee names and addresses on the ground that they were permissive subjects of bargaining. That is, those provisions would settle no terms and conditions of employment of unit employees but would merely further the union's own institutional interests by facilitating the organizing of unorganized employees. However, I also instructed the Regional Office to argue that two of those provisions, the access and roster provisions, should be considered mandatory subjects, upon which the union lawfully could insist, because they were merely mechanisms for implementing the parties' "after-acquired" Kroger clause, which is well settled to be a mandatory subject of bargaining. That is, since the union may lawfully insist to impasse on a Kroger clause, it should be able to insist to impasse on the procedures to be used-e.g., providing names and/or access-to facilitate its implementation. The case never reached the Board because the parties settled their dispute. But, as neutrality proposals become more prevalent, the Board will ultimately need to address these issues. A detailed treatment of this case can be found in my Case Handling Report dated November 20, 1996 (http://www.nlrb.gov/press/r2184.html)

Other Issues

A number of other issues that have come before me have had their origins in recent changes in the relationship between employers and employees. These include the circumstances under which an employer can withdraw recognition from an incumbent union; the status of graduate teaching assistants; efforts by employers to condition employment or benefits on employees' agreement to submit certain workplace disputes to arbitration and other forms of ADR. As to the first issue, in Chelsea Industries and other cases I have urged the Board to hold that principles of stability in collective bargaining relationships should preclude an employer from withdrawing recognition from a certified union unless there has been a decertification election in which the union has failed to retain majority support. My position is set out fully in the case handling report dated September 4, 1998 (http://www.nlrb.gov/press/r2310.html)

On the question of graduate teaching assistants (TAs), in the Yale University case I have urged the Board to find that the TAs at that institution are employees, overruling to the extent necessary the contrary holding of Leland Stanford Junior University. The ALJ dismissed the complaint without reaching the issue, finding that the conduct that the TAs engaged in-a "grade strike"-was not 7-protected. The case is before the Board on exceptions.

In recent years, as an outgrowth of the Supreme Court's Gilmer decision and the increasing popularity of various forms of alternative dispute resolution, some employers have attempted to condition hiring or retention of employment on agreements by individual employees to submit all disputes over workplace issues to arbitration. In a series of cases decided early in my tenure, we concluded that longstanding principles safeguarding the right of access to the NLRB for vindication of NLRA claims rendered such conditions unlawful outside the context of a collective-bargaining agreement. Although I have authorized a number of complaints, all of the cases have settled and therefore the Board has not yet had the opportunity to pass on these issues.

Finally, a number of important issues frequently arise in representation cases, where the General Counsel normally does not take a legal position. These include the statutory coverage of charge nurses and others performing a quasi-supervisory role; and whether physicians affiliated with HMOs are employees or independent contractors.


The National Labor Relations Act is a living document that has succeeded when its principles have been interpreted flexibly enough to accommodate the inevitable changes that have occurred in the workplace. Many aspects of today's workplace are a far cry from what prevailed when the Act was written. In order to maintain the promise of the Act, it has always been necessary to interpret and enforce it in a manner that reflects the changing realities of the workplace. The examples mentioned here reflect some of the efforts during my tenure as General Counsel to keep pace with these rapidly changing working conditions.

# # #


1 Technology Service Solutions, 324 NLRB No. 49 (1997).

Get your 28 day trial now 

 
LawMemo, Inc.
Post Office Box 8173 Portland, OR 97207
Phone: 877 399-8028