NLRB Advice Memoranda, CPC Parts Delivery, National Labor Relations Board, (Apr 2, 2024)

The Region submitted this case for advice regarding whether the Employer's ethics complaints to the agency about Union counsel's communications with employees in the petitioned-for unit were unlawful under Section 8(a)(1) of the Act. We conclude that the ethics complaints did not rise to the level of a violation of the Act. The Region should dismiss the charge, absent withdrawal.

The Union petitioned to represent five employees (four shift supervisors and one administrative employee) at the Employer's facility ____________________. The Employer contended that the employees in the petitioned-for unit were supervisory. In preparation for a pre-election hearing to determine whether the petitioned-for unit was comprised of statutory employees, outside counsel for the Union met with four of the five employees to investigate their status. Union counsel determined the employees were arguably non-supervisory and instructed them on hearing procedures.

On January 16, 2023, the day before the hearing, the Employer's attorney, having learned that Union counsel met with the employees without the Employer's knowledge or consent, sent a letter to the Inspector General for the NLRB, the Assistant Regional Director of Region 31, and the Region's Hearing Officer. The letter requested that Union counsel be sanctioned and removed from the hearing proceeding for alleged ex parte contacts with agents of the Employer. The Employer also moved to postpone the hearing.

The next day, January 17, 2023, the hearing was delayed for four hours while the Regional Director considered the motion to postpone. During this time, Union counsel explained the reason for the delay to the employee witnesses who were waiting to testify. The Regional Director denied the Employer's motion to postpone, stating that the “supervisory status of the individuals with whom the Employer alleges [Union counsel] engaged in ex parte contact remains in dispute and must be resolved by a hearing,” and it could not be assumed, therefore, that the individuals are supervisors. The hearing proceeded.

That same day, January 17, 2023, the Employer sent a letter to the Associate General Counsel of the Division of Operations Management for the NLRB with the same complaints it communicated the day before. During a break in testimony, counsel for the Union informed the employee witnesses of the new ethics complaint.

On the following day, January 18, 2023, the Associate General Counsel of the Division of Operations Management responded to the Employer via letter denying the Employer's request for sanctions and removal of Union counsel as premature given that the Regional Director had not yet decided the question of the employees' supervisory status. The letter further stated that, should the Regional Director determine the employees are supervisors, the Employer may renew its request or pursue the matter further with the state bar association.

On February 9, 2023, the Associate General Counsel sent a letter to Union counsel informing her that the Employer filed a charge of attorney misconduct against her under Section 102.177 of the Board's rules and regulations. The letter informed Union counsel that the agency concluded the alleged conduct did not violate applicable state rules of professional conduct or any other standards of professional and ethical conduct.

On August 4, 2023, the Regional Director issued a Decision and Direction of Election finding the petitioned-for unit to be statutory employees. The Union subsequently won the election and a Request for Review is pending with the Board.

We conclude that the Employer's motion to postpone the hearing (which was denied within a few hours) and its complaints to the Agency's Division of Operations-Management and Office of Inspector General do not amount to violations of Section 8(a)(1) under these circumstances.

Even assuming the Board finds the petitioned-for individuals to be employees rather than supervisors, neither the motion nor the letters interfered with their right to communicate with Union counsel. There is no evidence that the motion or the two letters (January 16, 2023 to the Inspector General and January 17, 2023 to the Associate General Counsel in Operations-Management) had any impact on the proceedings nor that they chilled or coerced the testimony of any employee.

Viewed from an objective standpoint, finding a Section 8(a)(1) violation for resorting to Agency procedures for misconduct allegations would raise serious questions about interfering with those offices' abilities to fulfill their mandates and comply with their own procedures. Leaving aside the merits of the Employer's assertions, Section 102.177 sets forth a prescribed procedure for allegations of misconduct on the part of attorneys or other representatives appearing or practicing before the Agency. The Office of the Inspector General, on the other hand, conducts audits, investigations, or other inquiries to prevent/detect fraud, waste, abuse, and mismanagement. Any party can allege that an attorney or representative engaged in misconduct under Section 102.177 or ask the Office of the Inspector General to investigate or make an inquiry into a particular matter. A party to an NLRB proceeding who believes they are aggrieved in a way that cannot be addressed by the Regional Director or whose complaint is outside of the Director's jurisdiction, e.g., a 102.177 allegation, may seek redress through Agency procedures like these. Notwithstanding the fact that the relevant offices are not required to take action, Operations-Management found the request to remove and sanction Union counsel before the R case hearing premature given that no determination on supervisory status had yet been made and invited the Employer to renew its requests or pursue the matter with the state bar if supervisory status was found. Moreover, Operations-Management later found no misconduct under Section 102.177, and the Inspector General has not taken action on the Employer's letter.

And perhaps most importantly, there is insufficient evidence showing this is a situation where the Employer attempted to leverage its complaints to chill employees in the exercise of their Section 7 rights. Similarly, we do not believe that a party to a representation case who makes the kind of complaints made here and in this context is comparable to a party filing a baseless and retaliatory lawsuit, triggering legal proceedings before a court. Nor would we find the Employer's motion to postpone a violation under the circumstances presented here; there is no precedent for finding a motion to postpone an R-case hearing to violate Section 8(a)(1). The NLRB is a self-contained administrative agency whose Rules and Regulations and other procedures are applicable to all parties practicing before it. Thus, we cannot conclude that these mere allegations made to other parts of the Agency during a representation case proceeding in this context violate Section 8(a)(1).

Nor did the Employer's letters have any tangible impact. They did not interfere with Union counsel's pre-election investigation, as they occurred after she had already met with the employees. They did not appear to impact the hearing beyond a short delay for the Regional Director to consider the motion to postpone—a motion she denied, reasoning that finding good cause to do so would require the Region to assume the individuals were supervisory, which was the ultimate dispute the fact-finding hearing was meant to resolve. [1] Although employees learned of the Employer's complaints about Union counsel and the hearing was delayed for four hours, the hearing ultimately proceeded to completion in a timely manner. The Associate General Counsel further notified Union counsel that it determined she had not engaged in professional misconduct pursuant to Section 102.177. The Regional Director determined the individuals were not supervisory and subsequently, the Union won the election. The Employer did not re-raise its concerns at any time. Under these circumstances, we conclude that the motion and the letters did not interfere with the putative employees' right to communicate with Union's counsel—especially considering the serious impediment such a finding would pose to Operations-Management and the Inspector General considering mere allegations.

This email closes this case in Advice. Please contact us with any questions or concerns.

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Division of Advice