The National Labor Relations Board’s Office of General Counsel is urging Regional Directors to limit their use of investigative subpoenas and instead issue complaints “based on the evidence available,” according to a March 13, 2019, memorandum obtained by Bloomberg Law.

The memo is General Counsel Peter Robb’s latest effort to reduce case processing time. It reiterates that charged parties are expected and encouraged to participate fully in a Region’s unfair labor practice investigation. While Regional Directors historically have issued investigative subpoenas to charged parties who refuse to cooperate, such subpoenas, according to the memo, can “unnecessarily prolong the investigation and impede the prompt resolution of the underlying dispute.”

Following Robb’s instructions, in cases where a charged party’s lack of cooperation is “significant,” Regional Directors are permitted and encouraged to issue unfair labor practice complaints based on the evidence available (provided the evidence supports the issuance of a complaint), rather than pursue additional evidence through an investigative subpoena. Whether a lack of cooperation is significant will be left to the Regional Director’s discretion and “dictated by the particular facts and circumstances of the case.” However, the memo notes a lack of cooperation could arise where the charged party fails to respond to a charge, or provides a written statement but refuses to “provide key information” requested by the Region. Although the memo does not clearly restrict a Regional Director’s determination of whether a failure to cooperate is significant, it notes that typically “failures to produce a witness or witnesses where credibility disputes may dictate issuance of complaint” will not rise to that level. Typically, these situations would not include failures to produce a witness or witnesses where credibility disputes may dictate issuance of complaint.

The Regional Director also has discretion to note the lack of cooperation in the complaint in this footnote language:

On (DATE(S)), the Region requested that Respondent cooperate in the administrative investigation of the ULP charge(s) conducted prior to issuance of the instant complaint. Respondent failed to fully cooperate in the investigation by refusing to furnish certain documents relevant to the disposition of the charge(s).

This latest memorandum highlights the importance of a party strategically considering the submission of a timely response to a Region’s request for information regarding an unfair labor practice charge. While responding may lower the risk that the Region will issue a complaint for failure to cooperate, it may result in providing too much information because, for example, the information request is overbroad. An employer that receives notification that an unfair labor practice charge has been filed against it should consult with counsel about appropriate next steps.

Photo of Kathryn J. Barry Kathryn J. Barry

Kathryn Barry is an Associate in the Long Island office of Jackson Lewis P.C.  Ms. Barry advises clients on compliance with various state and federal laws affecting the workplace, including Title VII, Family and Medical Leave Act, Americans with Disabilities Act, Age Discrimination in Employment Act, Fair Labor Standards Act and New York State and City laws.  She also assists federal contractors in the preparation of affirmative action plans and defends contractors against allegations of discrimination on the basis of race, color, religion, sex, national origin, disability, and veteran status in connection with audits by the Office of Federal Contract Compliance Programs and in related litigation brought on the OFCCP’s behalf by the Solicitor’s Office at the U.S. Department of Labor.

Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Philip B. Rosen Philip B. Rosen

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.