General Counsel of NLRB Issues Memorandum on Mandatory Submissions to the Division of Advice

Thursday, April 28, 2016

The General Counsel of the National Labor Relations Board, Richard F. Griffin, Jr., issued Memorandum GC 16-01- Mandatory Submissions to the Division of Advice.  The memorandum instructs the Board's regional attorneys to submit certain high profile cases to the general counsel's Division of Advice rather than proceeding on their own. The General Counsel divided the list into three groups. The first group includes matters that involve General Counsel initiatives and/or priority areas of the law and labor policy. The second group includes difficult legal issues that are relatively rare in any individual region and issues where there is no governing precedent or the law is in flux. The third group includes casehandling matters that have traditionally been submitted to the Division of Advice. 

A number of issues delineated by the General Counsel include:

1. Cases involving an allegation that the employer's permanent replacement of economic strikers had an unlawful motive under Hot Shoppes, 146 NLRB 802 (1964).

2. Cases involving the applicability of Weingarten principles in non-unionized settings as enunciated in IBM Corp., 341 NLRB 1288 (2004).

3.  Cases involving allegations that "English-only" policies violate Section 8(a)(1).

4.  Cases that present the opportunity to argue that St. George Warehouse, 351 NLRB 961 (2007), should be overturned and that the employer should have the burden of showing that a discriminatee failed to make an adequate search for interim employment.

5.  Cases involving whether a novel form of conduct (e.g. coordinated "shopping", excessive use of loudspeakers, corporate campaigns) constitutes Section 8(b)(4)(i) or (ii) or 8(b)(7) conduct.

6.  Cases involving the rights of contractor employees, who work on another employer's property, to have access to the premises to communicate with co-workers or the public, where the issues are not resolved by the Board's decision in New York New York Hotel and Casino, 356 NLRB No. 119 (2011).

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