On December 24, 2009, the National Labor Relations Board ("NLRB") issued a revised version of its Case Handling Manual (Part One). For those inside the NLRB, the Manual provides guidance on various internal policies and procedures for enforcement proceedings. For those outside the NLRB, the Manual not only states how the agency is likely to deal with issues that arise during such proceedings, but also provides insight into the agency’s enforcement priorities. Part One (the part recently revised) covers unfair labor practice (“ULP”) charges, but also includes sections that apply to representation elections and compliance proceedings as well.
The recent revisions could signal an increased focus on several particular topics. For example, a number of the revisions address issues relating to undocumented witnesses, bilingual or non-English speaking witnesses, and posting of notices in languages other than English. These provisions likely highlight an increased focus on workplaces with high concentrations of workers from other countries. Significantly, investigators and field agents are told to inform undocumented witnesses that the NLRB is not associated with the U.S. Immigration and Customs Enforcement, but that they cannot guarantee that action will not be taken against the witness due to immigration status.
Several of the revisions relate to the issuance of investigative subpoenas and procedures for opposing petitions to revoke subpoenas, including a new section on recovery of attorneys’ fees and costs in subpoena enforcement proceedings. One section adds as considerations for issuing a subpoena “the possible derivative liability of additional parties” and the possible need “to obtain a protective order or other pendente lite relief.” Another section clarifies language regarding notice to attorneys, emphasizing that the agency is not required to notify a party or its counsel if the agency subpoenas a witness who is not a supervisor or agent of the party. This may forebode an increased emphasis on the use of subpoenas in Board investigations and proceedings. The Regional Director has broad discretion to issue pre-complaint investigative subpoenas whenever evidence cannot be obtained by reasonable voluntary means.
Other sections with revisions include guidance on procedures when attorney misconduct is alleged in agency proceedings, guidance on introducing evidence regarding the appropriateness of particular remedies, and guidance on processing representation petitions that are blocked by ULP charges that are otherwise appropriate for deferral to grievance and arbitration. Significantly, even if such a ULP charge is appropriate for deferral, the Manual states that Regional Offices should proceed with pre-complaint investigations and reach determinations on the merits (but not proceed to a complaint), so as to unblock the representation case. In addition, the revised Manual also contains a new section with guidance on alternative dispute resolution of cases pending before the Board. These changes might suggest a heightened aggressiveness on the part of the agency to pursue enforcement and obtain settlements in a more efficient manner.
Although to some extent the revisions to the Manual might simply reflect the need to update procedures in light of issues encountered over the past several years, they also constitute tangible evidence that the NLRB is taking steps to improve its enforcement procedures so they may be put to better use.