This memorandum from NLRB General Counsel Crystal S. Carey provides updated guidance to Regional Directors, Officers-in-Charge, and Resident Officers concerning unfair labor practice (ULP) case handling. The guidance aims to promote fair, efficient, and consistent enforcement of the National Labor Relations Act.

The General Counsel affirms the continuation of prior guidance from former Acting General Counsel Cowen, including specific memoranda on seeking remedial relief in settlements, surreptitious recordings, investigating salting cases, referring cases to the National Mediation Board, deferring ULP cases, and the Agency-Wide Docketing Protocol. Crucially, the Office of the General Counsel will no longer seek to have the Board revisit case law established in Ex-Cell-O Corp., Care One at New Milford, and Caesars Entertainment. Consequently, pending matters will be reviewed, and related allegations in complaints, briefs, or motions will be rescinded or withdrawn.

Regarding settlement practices, the NLRB prioritizes resolution through settlement. Regions are directed to approve informal Board settlements and grant withdrawal requests based on non-Board settlements when parties agree to lawful terms, regardless of the allegations. The memorandum clarifies that enhanced remedies, such as notice readings or apology letters, should not be routinely included. These remedies are reserved for egregious or recidivist situations and should only be employed in specific instances requiring stronger interventions. For questions regarding the appropriateness of specific remedies, regions should consult Operations or the Division of Advice.

The memo also addresses allegations based solely on the maintenance of potentially unlawful rules without evidence of enforcement or actual impact on employees. Pursuing such cases is deemed an inefficient use of resources. Regions should promptly seek settlements for such allegations. If the charged party agrees to modify or rescind the rule, withdrawal of the charge should be requested based on remediation. If withdrawal is not achievable, the charge may be merit dismissed or dismissed for lack of merit or non-effectuation. When reviewing rules-related cases, regions should focus on clear, facial violations, such as outright bans on wage discussions. The evaluation of rules must consider the charged party's industry and any legitimate business justifications. Rules should not be sustained solely due to vagueness; a nuanced approach is required, pursuing only those with obvious, unjustifiable restrictions.

Concerning requests for evidence, charging parties are expected to provide supporting evidence within two weeks of filing a charge. A Board agent will only issue an EAJA letter to the charged party after being satisfied that the charging party's evidence establishes a prima facie case. EAJA letters must be concise and adequately inform the charged party. Requests for documents must be specific, relevant, and confined to what is necessary for a determination of the merits. For example, requesting entire handbooks should be avoided unless directly pertinent to the allegations.

Inquiries regarding a party's stance on Section 10(j) relief should be made only when an initial review of the charging party's materials necessitates it. Regions are also reminded to accommodate reasonable requests for extensions of time. By adhering to these protocols, the NLRB aims to promote transparency, efficiency, and timely resolutions in case management.

Significant Cases Cited

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