NLRB General Counsel Peter Robb issued a Memorandum on June 17th setting forth new guidelines for how Regions conduct unfair labor practice investigations—specifically, how Regions secure the testimony of former supervisors and agents, as well as how to handle audio recordings. The stated goal of the Memo is to "promote transparency and apply fairness" during the investigatory process.
Testimony of Former Supervisors and Agents and Fact Witnesses during ULP Investigations
First, Regions are instructed to now allow employers or labor organizations to be physically present during a Board interview of a former supervisor or agent when she/he is providing adverse testimony against a party. The Memo imposes different rules to "actor" witnesses—i.e., supervisors or agents who engaged in behavior alleged to be unlawful in a ULP charge, as opposed to those who are mere fact witnesses, as follows:
- Actor Witnesses: If an employer's agent, such as a supervisor, senior executive or manager, engaged in behavior that is alleged to be unlawful (e.g., retaliating against a subordinate because he or she engaged in protected activity under the NLRA) and the agent is testifying against the employer, the Region must inform the employer before it takes that agent's testimony, and allow the employer to be present during the testimony. Providing this notice to the employer should be followed regardless of whether the employment/agency relationship between the parties has ended, or whether the relevant "skip counsel" rules—i.e., rules establishing when the Regions may (or may not) directly contact a represented party—permit ex parte
- Fact Witnesses: If the witness is merely a fact witness (and is not testifying against the employer), the Region need not notify the employer about the upcoming testimony and otherwise involve the employer in the process.
If there exists a question as to whether an individual is an "actor" witness or a "fact" witness, Regions are instructed to contact the NLRB's Ethics Office and seek guidance on how to proceed before obtaining the individual's testimony.
Recordings Received by Regions During ULP Investigations
Second, the Memo provides guidance to Regions for handling audio recordings received during investigations, and sets forth three distinct rules:
- Regions are discouraged from accepting recordings that were made in violation of the Federal Wiretap Act (i.e., without the consent of any of the conversation's participants). Although the Memo does not flatly prohibit the receipt and use of such recordings, Regions are instructed to advise proffering parties of the potential repercussions of offering potentially unlawful recordings.
- If a recording is relevant to the ultimate question of whether an employer committed an unfair labor practice, Regions should offer to play the recording for the employer before concluding their investigation; and
- In such cases, the Region should inform the proffering party of how the Region may use the recording (i.e., playing the recording for the employer, etc.). The Region should also apprise the proffering party of certain risks associated with the recording (i.e., potential prosecution or civil claim if the recording was obtained contrary to law and/or discipline by his or her employer if the recording was made in contravention of a lawful employer work rule or policy).
Takeaways
The General Counsel Memo certainly promotes transparency among the parties during unfair labor practice investigations: the party offering evidence during an investigation is fully informed of the potential consequences of his or her actions, and the employer is similarly apprised of the evidence offered against it. This practice departs significantly from prior practice, where the Regions would likely not share information regarding the mere existence of a recording, never mind playing the recording for the charged party. It appears the aim of the GC's Memo is to allow all parties to be fully informed. This may encourage employers who are aware of the existence of an adverse recording to more seriously consider settling the charge as opposed to insisting on litigating only to then find out the existence of an adverse recording.
At the same time, however, the Memo may result in a chilling effect on employees in possession of relevant evidence. For example, an individual employee may be less inclined to provide a relevant audio recording to the Board after being advised that the recording will be played for the employer or that they may face potential prosecution or be terminated if they obtained the recording in violation of the law or employer policy.
Of course, the new protocol laid out in the Memo represents a significant departure from prior practice. The short term and long term impact of this Memo remains to be seen. We will be on the lookout for any additional guidance issued by the NLRB General Counsel, and we will keep you posted on the impact of this Memo.
Originally published June 19, 2020.
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