NLRB Issues Revised List of Matters to be Submitted to the Division of Advice
The NLRB’s Office of the General Counsel has issued a new memorandum (pdf) outlining the categories of cases that must be submitted to the agency’s Division of Advice.
Acting General Counsel (GC) Lafe Solomon has indicated that the current list, which was last updated in 2007, needs to be revised on account of the new agency and court decisions, as well as policy issues that have emerged in recent years.
The revised list provides some insight into the nature of cases the GC considers to be of particular importance from a policy standpoint. It also reflects current areas of the law where the GC may be seeking to overturn existing precedent or decisions issued by the Board during the previous presidential administration. The GC Memorandum also includes many of the other types of cases to be submitted to the Division of Advice that were listed in the 2007 version of this document.
Of particular interest is the fact that the GC Memorandum lists a number of cases that are to be submitted to the Division of Advice because they “involve identified policy priorities.” Several of these cases may be of particular interest to those following the policy directions of the Board under the current administration, and they include the following:
- Cases covered by GC Memorandum 11-01 (Effective Remedies in Organization Campaigns) where the following remedies might be appropriate:
(1) access to employer electronic communications systems,
(2) access to non-work areas,
(3) equal time to respond to captive audience speeches.
- Cases involving employer rules prohibiting, or discipline of employees for engaging in, protected concerted activity using social media, such as Facebook or Twitter.
- Cases involving the legality of any aspect of a "neutrality" or card check agreement or other pre-recognition agreement that is not answered by the Board’s decision in Dana Corp.
- Cases in the healthcare industry involving whether 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, and cases involving the supervisory status of rotating supervisors.
- Cases covered by GC Memorandum 11-06 (First Contract Bargaining Cases: Regional Authorization to Seek Additional Remedies and Submissions to Division of Advice) where reimbursement of bargaining expenses or of litigation expenses might be appropriate.
Employers with cases in these categories should expect a heightened interest by the NLRB in them.