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NLRB Revises Procedures for Evidence Collection, Disclosure (1)

June 17, 2020, 3:41 PMUpdated: June 17, 2020, 10:08 PM

The federal labor board’s top prosecutor has issued new guidelines for use of evidence and witness testimony when the agency investigates alleged labor violations in the private sector that’s causing alarm among some staffers, who believe the board is curtailing its powers and limiting the role of its in-house ethics officials.

National Labor Relations Board General Counsel Peter Robb outlined the directives in a memo, dated Wednesday, to regional directors, officers in charge, and resident officers. A copy of the memo was obtained by Bloomberg Law. An earlier version of the memo, dated May 28 and also obtained by Bloomberg Law, includes a new process for how conflicts-of-interest are to be handled during a case. That policy wasn’t included in Wednesday’s memo, but NLRB spokesman Edwin Egee said it has already taken effect.

The guidelines in Wednesday’s memo place restrictions and, in some cases, prohibitions on agency investigators and lawyers receiving recorded or documentary evidence that the NLRB historically has relied on to investigate and prosecute allegations.

Staffers are now required to inform potential whistleblowers that they may face federal charges or be disciplined by their employer when they hand over certain video or audio evidence to the NLRB if it was obtained in ways that don’t align with federal law. The board will continue collecting other kinds of evidence, including recordings made in violation of state wiretap laws or an employer’s policies, but staffers will now have to advise the potential whistleblower that they will offer to play the recording for charged parties “so that the person can make an informed choice as to whether or not to provide a recording.”

Wednesday’s memo, published on the agency’s website, also instructs agency officials to allow parties to a case to be present in certain situations where a former supervisor or agent is testifying against that party.

The May 28 version of the memo said the “agency and the public are better served” if employees sit out a case when a party alleges a “non-frivolous” conflict of interest, to avoid the delays and resource expenditure involved in making inquiries to the agency’s designated ethics officials. Regional offices were advised to select a replacement under most circumstances.

“The purpose of this policy is to avoid unnecessary efforts to determine if recusal is actually required by rendering that question moot by concluding the subject employee’s participation,” the internal document reads.

The May 28 memo, signed by a member of Robb’s staff and also sent to higher-ranking agency personnel, was designated as an internal document, and won’t be made public, Egee said.

‘Efficient Resolution’

Robb, who was nominated by President Donald Trump, curbed the agency’s use of investigative subpoenas earlier in his tenure, among other moves that some staffers have said limit the agency’s ability to carry out its mission. He said in the memo that the guidance was issued “to ensure consistency, promote transparency and apply fairness,” and that “dissemination of information during the investigation will facilitate the prompt and efficient resolution of labor disputes and afford more timely protection of employee rights.”

The changes are likely to revive criticism from Democrats, labor organizations, and some agency staffers that the NLRB has taken a pro-business stance under Trump. The NLRB oversees elections to form or disband a union and prosecutes unfair labor practice charges against companies and unions. Republicans and the business community generally have defended the board’s actions during the Trump administration, saying the moves have restored a balance between the interests of labor and management.

Two board staffers and former NLRB Chairman Mark Gaston Pearce said the guidelines hinder the agency’s power to investigate accusations of unfair labor practices and could discourage whistleblowers from coming forward.

“The biggest concern is that they’re taking our tools away and hamstringing us,” said one of the NLRB staffers. “This rises very much in the context of the agency first taking away our ability to use investigative subpoenas.”

The two NLRB staffers spoke on condition of anonymity because they weren’t authorized to discuss the matter and feared retaliation.

Egee disputed the criticism. “The goal of this guidance is to ensure timely relief for individuals whose rights have been violated. The guidance effectuates these goals by ensuring that Regions candidly disclose appropriate evidence accumulated during the investigation phase,” Egee said in a statement to Bloomberg Law. He added that “advisement given to those persons proffering recordings is intended to protect them, not to ‘intimidate’ them.”

Prosecutorial Tools

The board’s prosecuting arm has traditionally functioned without a discovery process by design and by law, and the two staffers said the new guidance has rankled some agency employees.

“We’re giving them our evidence although we don’t have to do that in this agency: We don’t have discovery,” one of the NLRB staffers said.

The guidelines included in both memos, which weren’t voted on by the agency’s all-Republican leadership panel, apply to investigations of allegations made against both unions and employers. The two board staffers and Pearce said they believe the guidance is intended to give employers an advantage when allegations are made.

Most of the agency’s cases are against companies. The agency issued 1,010 complaints against employers in fiscal year 2010, and 77 against unions, according to data supplied by the NLRB. In 2019, it issued 789 complaints against businesses and 132 against unions.

“This is part of a course of conduct that illustrates the board’s desire not only to make the act less effective, but to weaponize the act against unions and workers,” Pearce said, referring to the National Labor Relations Act.

Robb floated nearly 60 proposals to revamp agency case-processing policies in a separate internal memo issued shortly after he was confirmed in November 2017 as the NLRB’s top lawyer. Those proposals included one to curb the agency’s use of investigative subpoenas, a change the NLRB announced roughly a year later. The subpoenas allowed the board to compel unions and employers to hand over certain evidence.

The NLRB has a relatively limited set of tools compared with other federal agencies responsible for enforcing federal law. Its orders aren’t self-enforcing, meaning a party can take another to court if they refuse to follow an NLRB order, and one of its standard remedies is ordering a party to post notices in the workplace admitting its illegal behavior and informing employees of their rights.

While lacking the traditional discovery process used in lawsuits, in which parties investigate a case and can compel evidence from the opposing side, including documents and depositions, board attorneys had been able to obtain evidence secretly, and surprise an opponent at trial or in a settlement offer.

Federal appeals courts have rejected challenges to the NLRB’s investigative and prosecutorial processes, and the U.S. Supreme Court in 1978 sanctioned its longstanding policy allowing for non-disclosure of witness statements until a hearing, citing concerns about witness coercion and intimidation.

“It’s an administrative proceeding, and in order to get full cooperation from witnesses and protect them from retaliation, as well as to facilitate the purposes of labor law, the proceedings were set up so there’s no discovery,” Pearce said.

Directives on Receiving Evidence

Under the board’s previous approach, board officials and investigators were permitted to accept and utilize evidence submitted by workers even if the material or the way it was obtained may have violated an employer’s policies or federal laws pertaining to recordings, such as the Federal Wiretap Act.

“When I was there during the Reagan administration we had a pretty conservative majority, but we continued to adhere to those practices nevertheless, given the statute and the institutional interests,” said Marshall Babson, former Democratic NLRB member and an employment counsel at Seyfarth Shaw.

Wednesday’s memo instructs board employees against receiving audio or video evidence believed to have been obtained in violation of the Federal Wiretap Act. It allows evidence to be received if agency officials believe state wiretap laws or employer policies have been violated, but instructs staff to “advise persons or parties proffering such recordings” about “possible repercussions.”

Wednesday’s memo also instructs board agents to allow employers to be present if a former supervisor who took a challenged action—like firing a worker for pro-union activity—is testifying against that employer. Regional officers “are to apprise the party or its representative in advance of communicating with the individual,” and afford the party “the opportunity to be present as an observer,” including in cases where the rules don’t forbid contact with that former supervisor, the memo said.

The board didn’t previously afford businesses the same extent of access and notice, the two NLRB staffers and Pearce said.

Taken together, the directives about evidence and testimony “create a totally coercive environment” for employees who have evidence of anti-union activity to support an NLRB case, Pearce said.

(Updated with additional reporting throughout.)

To contact the reporter on this story: Hassan A. Kanu in Washington at hkanu@bloomberglaw.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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