Report on the Midwinter Meeting of the ABA
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OFFICE OF THE GENERAL COUNSEL
MEMORANDUM GC 17-02
March 10, 2017
TO:
FROM:
All Division Heads, Regional Directors, Officers-In-Charge,
and Resident Officers
Richard F. Griffin, Jr., General Counsel ~
SUBJECT:
Report on the Midwinter Meeting of the ABA Practice and Procedure Under the
National Labor Relations Act Committee of the Labor and Employment Law Section
In early March, I attended the Annual Midwinter meeting of the Practice and Procedure Under
the National Labor Relations Act Committee (P&P Committee) of the American Bar Association
(ABA) Labor and Employment Law Section together with several senior Agency managers. As in
years past, a primary purpose of this meeting was to respond to and discuss Committee
concerns and questions about Agency casehandling processes. As prior General Counsels have
done, I am sharing the P&P Committee members' concerns and the Agency's responses with
you so that you can have the benefit of this important exchange. While we did not have time
to respond to every question raised at the meeting, we have included all the questions posed to
the Agency and the Agency's responses.
During my tenure as General Counsel, I intend to conduct the business of the Office of the
General Counsel in a productive manner. Continuing a constructive, cooperative relationship
with the organized Bar is an important element of this objective and one to which I am
committed. At the Midwinter meeting, members of the Committee shared their appreciation
of the constructive relationships enjoyed by members of many local P&P. groups with individual
Regional Directors. I encourage you to facilitate those exchanges where they do not exist and
to continue to broaden those relationships where they do. Open communication with
representatives of both management and labor who appear before us enhances the Agency's
performance and benefits the public we serve.
Attachment
Release to the Public
cc:
NLRBU
NLRBPA
al P&P. groups with individual
Regional Directors. I encourage you to facilitate those exchanges where they do not exist and
to continue to broaden those relationships where they do. Open communication with
representatives of both management and labor who appear before us enhances the Agency's
performance and benefits the public we serve.
Attachment
Release to the Public
cc:
NLRBU
NLRBPA
UNFAIR LABOR PRACTICE ISSUES
A. Statistics
1. Please provide the number of ULP charges filed, the settlement rate, the number of
complaints issued, the litigation win rate (separating complete wins on all charges or claims from
partial wins on less than all charges or claims}, the number and type of cases sent to the Division of
Advice, and merit determinations.
In FY 2016, the number of unfair labor practice (ULP) charges filed was 21,326; the settlement rate was
93%; the number of complaints issues was 1,272; and the litigation success rate was 89%, which were
won in whole or in part. The Agency does not keep statistics separating out complete wins from partial
wins. The percentage of ULP charges filed in which merit was found was 37.1%. In addition, there were
480 submissions to the Division of Advice. The Agency does not track the number of cases sent to the
Division of Advice by case type.
2. In FY 2016, how many Motions for Summary Judgment (MSJs) were filed as a result of an
alleged default in a settlement agreement that included a default provision? What were the
results of such MSJs?
The Agency does not keep specific statistics on the number of cases in which the default language is
triggered. A document search disclosed that, in FY 2016, there was only one MSJ filed as a result of an
alleged default in a settlement agreement that included a default provision. That MSJ was granted.
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ttlement agreement that included a default provision? What were the
results of such MSJs?
The Agency does not keep specific statistics on the number of cases in which the default language is
triggered. A document search disclosed that, in FY 2016, there was only one MSJ filed as a result of an
alleged default in a settlement agreement that included a default provision. That MSJ was granted.
3. Please provide statistics on pre-arbitral and post-arbitral deferrals, including the number of
cases deferred, the number of cases not deferred and the reasons for not deferring by
category, and the length of time the cases have been pending. Does this represent a change
from prior years?
There were 1,122 cases in pre-arbitral deferral status at the end of FY 2016, which is 278 (almost 20%)
less than last fiscal year. 585 cases were deferred during FY 2016, which are 215 cases (more than 25%)
less than last fiscal year. The median length of time cases have been pending is 335 days. The Agency
does not keep statistics on the number of post-arbitral deferrals or on the number of cases not def~rred
and the reasons for not deferring by category.
4. Please share statistics concerning the use of investigative subpoenas to obtain testimony and
documents, the frequency of petitions to revoke, and the success of such petitions? Can you
please break down the statistics between subpoenas directed at parties and non-parties?
In FY 2016, 1270 subpoenas were issued - 743 ad testificandum and 527 duces tecum. The cases in
which they issued resulted in merit findings in 298 cases and non-merit findings in 231 cases, with 107
still pending. There were 138 petitions to revoke subpoenas, and, in 25 cases, we sought and obtained
enforcement. The Agency does not track the other information sought
t parties and non-parties?
In FY 2016, 1270 subpoenas were issued - 743 ad testificandum and 527 duces tecum. The cases in
which they issued resulted in merit findings in 298 cases and non-merit findings in 231 cases, with 107
still pending. There were 138 petitions to revoke subpoenas, and, in 25 cases, we sought and obtained
enforcement. The Agency does not track the other information sought. Please see the following table
which provides a Region-by-Region breakdown of the number of (1) situations in which subpoenas were
issued, (2) subpoenas ad testificandum, (3) subpoenas duces tecum, (4) total subpoenas, (5) situations in
which an investigative subpoena was issued and there was a merit determination, (6) situations in which
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numbe(of petitions: to' revoke an investigative subpo·ena; and (9) ,number .:o(situations in whith the
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5. .Please pro,vide up4atE!dsta.tistics_on .. ~"'e:nu,rnber of cases in ~h,.!c;h a,compliaric;¢ f'!~ari_ngis
needed.after a'Boarct reme-~iai' or~°e'f"tlas issue'cfs.ince Fiscal'Yea·r'2010>'',
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6. For FY 16, please provide the number of appeals received by the Office of Appeals; the
number and percentage of cases sustained and overturned; the median number of days to
process all such cases and those that were sustained; and the average number of days an
appeal was pending.
During FY 2016, the Office of Appeals received 1547 appeals. Of these cases, 1.8% (27) were sustained.
The median processing days for sustained cases were 98. The average number of days that an appeal
was pending in the Office of Appeals was about 32 processing days.
7. Where does the Board plan to publish statistics? Which statistics can be found on the Board's
website? Which can be found in the Agency's annual Performance and Accountability Report
(PAR)? Where can practitioners access the PAR?
The Agency publishes graphs and tables on statistics of ULP and representation cases which can be
found at https://www.nlrb.gov/news-outreach/graph-data. Statistics can also be found on our
website through our Performance and Accountability Reports (PARs) and our GC Memoranda entitled
Report on Midwinter Meeting of the ABA Practice and Procedure under the National Labor Relations Act
Committee of the Labor and Employment Law Section.
B. Section lO(j) Injunctions
1. Please provide statistics concerning the number of lO(j) injunctions requested. by Region, the
number submitted to the Board, the number authorized by the Board and the number granted
by the courts in FY 16.
The Division of Advice received 118 lO(j) requests from Regional Offices
e National Labor Relations Act
Committee of the Labor and Employment Law Section.
B. Section lO(j) Injunctions
1. Please provide statistics concerning the number of lO(j) injunctions requested. by Region, the
number submitted to the Board, the number authorized by the Board and the number granted
by the courts in FY 16.
The Division of Advice received 118 lO(j) requests from Regional Offices. The General Counsel
submitted 28 cases to the Board requesting authorization for lO(j) proceedings. The Board authorized
29 cases during the fiscal year, one of which was pending at the end of the prior fiscal year. Of the 29
cases authorized, 2 cases were not filed due to developments in the cases after Board authorization, 9
cases were pending resolution at the end of the fiscal year, 8 were litigated to conclusion by the end of
the fiscal year, with 4 wins (3 full/1 partial) and 4 losses. 10 cases resulted in a settlement/adjustment.
2.
Please also provide statistics regarding the average time between the filing of the charge and
when a given Region: submits a request to Advice; when the Region makes a determination to
issue a complaint; when the complaint is filed; when the case is filed in federal court; and the
date of any injunction determination.
The median days from charge filing to Regional determination is 71 days.
The median days from charge filing to Complaint issuance is 96.5 days.
The median days from charge filing to submission to the Division of Advice's
Injunction Litigation Branch is 133.5 days.
The median days from charge filing to District Court proceeding is 177 days.
The median days from charge filing to District Court determination is 307 days.
filing to Regional determination is 71 days.
The median days from charge filing to Complaint issuance is 96.5 days.
The median days from charge filing to submission to the Division of Advice's
Injunction Litigation Branch is 133.5 days.
The median days from charge filing to District Court proceeding is 177 days.
The median days from charge filing to District Court determination is 307 days.
3. GC Memo 16-01 asks Regions to submit the following lOU) matters_to Advice:
a. Requests for authorization to file a lO(j) petition;
b. lO(j) recommendations in all cases involving: (1) complaints seeking a Gissel
bargaining order; (2}discharges during organizing campaigns (GC 10~ 07}; (3) first
contract bargaining (GC 11-06}; and, (4) successorship cases;
c, Requests for authority to seek contempt of a lO(j) cir 10(1} order;
d. Recommendations regarding appeal in lO(j) or 10(1} cases in which a district cciurt
denied injunctive relief; and,
e. Notice of Appeal filed in a lO(j) or 10(1} case.
Please provide statistics regarding how many of each category of lO(j) cases have been submitted to
Advice and describe any trends and the issues presented in these or other lO(j) cases.
As to a., the Agency does not maintain statistics on whether the Regions' recommendations request
authorization to seek an injunction or not. As to b., other than cases involving discharges during
organizing campaigns, the Agency does not track statistics on the type of case submitted. For those
lO(j) cases involving discharges during organizing campaigns, Regional Offices submitted 46 cases -- 20
of those recommended seeking injunctive relief and the General Counsel sought relief in 13 of those
cases. Of the remaining 7, 2 cases settled, 1 involved a changed circumstance, and 4 others were
deemed not to warrant seeking such relief. As to c., two requests for authority to seek contempt of a
lO(j) order were received and authority was granted in one of those cases
ubmitted 46 cases -- 20
of those recommended seeking injunctive relief and the General Counsel sought relief in 13 of those
cases. Of the remaining 7, 2 cases settled, 1 involved a changed circumstance, and 4 others were
deemed not to warrant seeking such relief. As to c., two requests for authority to seek contempt of a
lO(j) order were received and authority was granted in one of those cases. As to d., the Agency
considered filing an appeal or cross appeal in 8 lO(j) cases, which includes losses from filings made in the
prior fiscal year. As toe., the Agency filed a notice of appeal in two lO{j) cases.
The General Counsel sought injunctions in a wide range of contexts, including to remedy discharges that
occurred during an organizing campaign, egregious violations that precluded the holding of a fair
election (obtaining interim Gissel bargaining orders), successor failures to hire and/or bargain, and
surface bargaining and/or other misconduct occurring during the initial year of a union's certification.
There were no observable trends or recurring novel issues.
C. Deferral
1. Are there any new considerations with respect to deferring cases pre-arbitration and/or
deferring to arbitration decisions after Babcock & Wilcox and GC Memo 15-02?
There are no new considerations with respect to deferring cases pre-arbitration or deferring to
arbitration decisions after Babcock & Wilcox. We note that Agency staff has developed materials and
has been educating arbitrators, and soon mediators, with regard to the new deferral standard as well as
with regard to applicable Board case law addressing matters that would typically come before them.
2. What kinds of cases concerning deferral are being sent to Advice?
tration or deferring to
arbitration decisions after Babcock & Wilcox. We note that Agency staff has developed materials and
has been educating arbitrators, and soon mediators, with regard to the new deferral standard as well as
with regard to applicable Board case law addressing matters that would typically come before them.
2. What kinds of cases concerning deferral are being sent to Advice?
The types of deferral cases being sent to the Division of Advice involve questions regarding which
standard to apply based on the Board's directions regarding retroactivity in Babcock & Wilcox, and
application of the new standard in cases where the prospective rule applies.
3. To what extent has the direction to the Regions to make "arguable merit" determinations
resulted in more cases being dismissed rather than deferred under Collyer?
The "arguable merit" standard is not a new requirement. Former General Counsel Nash first identified
this requirement in GC Memorandum 73-31, which explained:
"The region should first determine preliminarily whether the allegations of the charge and the
evidence submitted by the charging party in support of the charge and any other evidence at
hand establish an arguable violation of the Act. lfthis preliminary determination does not
establish such a violation of the Act, i.e., the charge is determined to be frivolous or clearly
lacking in merit, the charge should be dismissed in accordance with Section 102.19 of the
Board's Rules and Regulations."
Further, Section 10118.1 of the ULP Casehandling Manual (CHM), detailing Collyer deferral, has begun
with the phrase "Upon a determination of arguable merit" at least since the 2005 edition. See
Memorandum OM 05-77 (attaching 2005 version of that Section); see also GC Memorandum 12-01
(citing 2011 version of that Section), as well as the 2015 version of the CHM. Thus, there has been no
change to the General Counsel's policy in this regard during the last 30 years
g Collyer deferral, has begun
with the phrase "Upon a determination of arguable merit" at least since the 2005 edition. See
Memorandum OM 05-77 (attaching 2005 version of that Section); see also GC Memorandum 12-01
(citing 2011 version of that Section), as well as the 2015 version of the CHM. Thus, there has been no
change to the General Counsel's policy in this regard during the last 30 years. While there was a
loosening of those requirements about 20 years ago in light of resource issues, the standard remains in
place. We have not observed any change in the number of dismissals under this standard.
4. What guidance has been given to the Regions on 8(a)(3) deferral standards? What is the
General Counsel doing to monitor or ensure that the new 8(a)(3) deferral standards are being
implemented properly?
No further guidance has been given to Regions other than that set out in GC Memorandum 15-02, which
provides guidance on implementing the new standards. As explained in our answer to this question last_
year, new training materials, which address deferral generally and include significant information on the
new 8(a)(l) and 8(a)(3) deferral standards, have been distributed to Regional Offices and their
respective staffs. The Division of Operations-Management has designated a point person for questions
on the new standard and, as noted in GC Memorandum 15-02, Regions are instructed to submit a
number of different types of issues that might arise to the Division of Advice. The Division of
Operations-Management checks for compliance with the new guidance in periodic reviews o-f Regional
cases.
5. Are there any pending cases raising Babcock & Wilcox issues?
A number of cases are pending at various stages in which the Babcock & Wilcox analysis is applicable,
including cases that Regions have deferred to the grievance-arbitration procedure under Collyer, and
cases where Regions have declined to defer to an arbitration decision or grievance settl~ment because
the Babcock & Wilcox standard is not met
any pending cases raising Babcock & Wilcox issues?
A number of cases are pending at various stages in which the Babcock & Wilcox analysis is applicable,
including cases that Regions have deferred to the grievance-arbitration procedure under Collyer, and
cases where Regions have declined to defer to an arbitration decision or grievance settl~ment because
the Babcock & Wilcox standard is not met. The Agency does not specifically track all cases where the
Babcock & Wilcox standard is applied by Regions, the Division of Advice, Administrative Law Judges, or
the Board.
6. In cases deferred to arbitration, have there been requests for elements of the GC's
investigative file? What is the GC's position on production of such documents? Have cases
been pulled back from deferral if arbitration is delayed pending production of the GC's
investigative file?
The Agency receives requests for the contents _of investigative files from time to time. However, the
Agency does not regularly track whether such requests are for deferred cases as opposed to ones where
a complaint has issued.
,However, with regard to cases that have been deferred to arbitration, these are considered open cases.
As such, the case files contain records ahd information compiled for law enforcement purposes the
disclosure of which could reasonably be expected to interfere with enforcement proceedings under 5
U.S.C. 552(b)(7)(A). Thus, Agency policy is to withhold these documents from disclosure. We are not
I
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aware of any instances where a case has been pulled back from deferral on the basis of an arbitration
being delayed pending production of aspects of the Agency's investigative file, nor would we normally
pull it back for that reason.
D. Investigative Subpoenas
1. GC Memo 16-01 asks Regions to submit the following subpoena matters to Advice:
a. Requests to issue investigative subpoenas post-complaint;
b
y instances where a case has been pulled back from deferral on the basis of an arbitration
being delayed pending production of aspects of the Agency's investigative file, nor would we normally
pull it back for that reason.
D. Investigative Subpoenas
1. GC Memo 16-01 asks Regions to submit the following subpoena matters to Advice:
a. Requests to issue investigative subpoenas post-complaint;
b. Requests for an investigative subpoena to identify an employer that placed a
"blind" newspaper advertisement seeking job applications (see OM 98-65);
c. Requests to issue investigative subpoenas where a serious claim of privilege is likely
to be raised (e.g., subpoenas to the press, witnesses whose chosen cou~sel the Region
would exclude from the interview) (see OHM.Sec. 11170.4);
d~ Cases where, following issuance of any subpoena, intervening circumstances
present enforcement problems;
e. Cases where the Region is considering denying the •request of a private party for
enforcement of subpoena.
Please provide statistics regarding how many of each category of investigative subpoena cases have.
been submitted to Advice, broken down by the above categories by document or testimony, and
describe any trends and the issues presented in these and other subpoena cases.
According to the Board's ULP CHM, these issues need to be addressed either by the Division of Advice
and/or the Contempt, Compliance, and Special Litigation Branch (CCSLB) of the Division of Legal
Counsel. In general, very few of these cases have been submitted to either the Division of Advice or
CCSLB, and neither office maintains any statistics related thereto.
2. Please provide FY 2016 statistics regarding the number of investigative subpoenas issued as
a percentage of total cases that have gone to decision.
Compliance, and Special Litigation Branch (CCSLB) of the Division of Legal
Counsel. In general, very few of these cases have been submitted to either the Division of Advice or
CCSLB, and neither office maintains any statistics related thereto.
2. Please provide FY 2016 statistics regarding the number of investigative subpoenas issued as
a percentage of total cases that have gone to decision.
During FY 2016, Regions issued 1,270 subpoenas in 636 situations, divided between 743 subpoenas ad
testificandum and 527 subpoenas duces tecum. This total constitutes approximately 3.0 percent of the
21,326 ULP charges filed during the fiscal year.
3. What guidance, if any, is provided to the Regions in connection with the issuance of
complaints where there ate not corroborating witnesses and/or documents?
There is no specific guidance per se. Regions are directed and endeavor to obtain corroborative
testimonial and documentary evidence through voluntary means, and sometimes through involuntary
means, i.e. an investigative subpoena as referenced below. However, corroborative evidence is not a
requirement in all situations in order for a complaint to be issued.
4. What guidance, if any, is provided to the Regions concerning the issuance of investigative
subpoenas?
There has been no change to the guidance in this area. Pursuant to ULP CHM Section 11770.2 and GC
Memorandum GC 00-02, Regions have authority to issue investigative subpoenas ad testificandum and
duces tecum to charged parties and third party witnesses whenever the evidence would materially aid in
the determination of whether a charge allegation has merit and whenever such evidence cannot be
obtain_ed by reasonable voluntary means.
E. Access to Information
1
LP CHM Section 11770.2 and GC
Memorandum GC 00-02, Regions have authority to issue investigative subpoenas ad testificandum and
duces tecum to charged parties and third party witnesses whenever the evidence would materially aid in
the determination of whether a charge allegation has merit and whenever such evidence cannot be
obtain_ed by reasonable voluntary means.
E. Access to Information
1. What is the status of the Agency's efforts concerning website enhancements to enable
counsel to obtain charges and other filings via the website or efforts to publish redacted
settlement agreements and other redacted pre-hearing documents on the website?
The Agency has implemented significant changes to its website to make more information on formal
documents available online. Data regarding charges and petitions is currently accessible on the
Agency's website at: https://www.nlrb.gov/news-outreach/graph-data/recent-filings. In addition, the
FOIA Branch has begun posting records to the NLRB's Frequently Requested Records web page located
at: https://www.nlrb.gov/news-outreach/foia/frequently-requested-recods. That page contains links to
records in high profile cases or records that have been requested multiple times and released pursuant
to FOIA requests, such as representation petitions and certifications, as well as charges and dismissal
letters. Web users will be able to search for these records by Region and filing date and download
redacted PDF copies.
The Agency encourages· members ofthe public, including counsel for parties to NLRB matters, who seek
copies of records, such as petitions, settlement agreements, and charges toe-file a FOIA request at:
https://www.nlrb.gov/news-outreach/foia/e-foia-request-form. E-filing directly with the FOIA Branch
avoids the time delay resulting from NLRB field staff routing a FOIA request from their offices to the
FOIA Branch in Headquarters
public, including counsel for parties to NLRB matters, who seek
copies of records, such as petitions, settlement agreements, and charges toe-file a FOIA request at:
https://www.nlrb.gov/news-outreach/foia/e-foia-request-form. E-filing directly with the FOIA Branch
avoids the time delay resulting from NLRB field staff routing a FOIA request from their offices to the
FOIA Branch in Headquarters. And, while requesters may continue to submit requests via mail or
facsimile to the FOIA Branch, e-filing the FOIA request assists in prompt processing within the system.
With respect to FOIA privacy redactions in Agency records, the FOIA staff redacts the names and
personal identifiable information (Pll) of third party individuals, such as non-supervisory employees,
employee stewards, and alleged discriminatees. The exceptions to this policy are that information
concerning institutional Charged Parties representatives, who may be union officers, supervisors, and
company officials, is generally released when they provide the information in their professional capacity.
The FOIA staff also redacts the Pll of individuals whose supervisory status is in dispute. The policy
applies to pre-hearing records in unfair labor practice proceedings and in representation cases.
2. What is the status of the Agency's efforts concerning website enhancements to publish
petitions for review, applications for enforcement, and/or monthly appellate court
reports?
Real-time information about petitions for review and applications for enforcement can now be found on
our website at https://www.nlrb.gov/cases-decisions/appellate-court/petition-and-application.
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entation cases.
2. What is the status of the Agency's efforts concerning website enhancements to publish
petitions for review, applications for enforcement, and/or monthly appellate court
reports?
Real-time information about petitions for review and applications for enforcement can now be found on
our website at https://www.nlrb.gov/cases-decisions/appellate-court/petition-and-application.
3. What is the status of the Agency's efforts to create a PACER-type searchable platform or
function? wm the Agency create a function, similar to federal court filings, for electronic
service on all parties of electronically filed documents?
While the Agency has adopted a PACER-type docket for each case and an e-Service pilot, due to
budgetary constraints, we have been unable to fund the project that would enable the electronic search
and service functions described in your question.
4. What instructions been provided to the Regions and staff regarding updates to the NxGen,
system over the past year? Please detail any significant changes delineated in OM 17-06.
NxGen Instructions to the Regions are set forth in the following Operations-Management
Memoranda:
OM 16-08 NxGen January Release (10.1), with (Attachment 1 & Attachment 2) - Introduction of
the Forms Wizard for filing charges and petitions via nlrb.gov.
OM 16-12 NxGen March Release (10.2) - Miscellaneous improvements based on user
suggestions.
OM 16-14 NxGen May Release (10.3) - Miscellaneous improvements based on user
suggestions.
OM 16-25 NxGen August Release (10.5) - Expansion of the pilot e-Service project in which
Regions issue documents to the United States Postal Service electronically.
for filing charges and petitions via nlrb.gov.
OM 16-12 NxGen March Release (10.2) - Miscellaneous improvements based on user
suggestions.
OM 16-14 NxGen May Release (10.3) - Miscellaneous improvements based on user
suggestions.
OM 16-25 NxGen August Release (10.5) - Expansion of the pilot e-Service project in which
Regions issue documents to the United States Postal Service electronically.
OM 16-28 NxGen September Release (10.6) - Miscellaneous improvements based on user
suggestions.
OM 16-23 Collecting Data in Connection with Fair Pay and Safe Workplaces with (Attachment 3)
- Describes how data collected on a voluntary basis pursuant to the Executive Order regarding
Fair Pay and S~fe Workplaces should be recorded in NxGen.
OM 17-06 NxGen December Release (10.8) - This release presents no "significant changes", but
rather provided some "bug fixes" to address user and data integrity concerns.
5. Concerning the new filing system:
a.
Is there a mechanism for amending or withdrawing charges? If not, is the Agency
considering such a mechanism?
At this time, there is no wizard assistance or other mechanism for automated amending or withdrawing
of charges. However, amended charges and withdrawal requests may be filed electronically.
b. Is the public at large able to view the charge? If so, is it viewable immediately
upon filing? If not, why not? What is the Agency's current thinking or plan
regarding public access to charges?
The Agency continues to endeavor to put as much information as possible on its website for public
access. The Agency's system automatically creates a redacted version of charges and petitions, which
omit individuals' names, address, and other personally identifiable information. The redacted version is
what will post to the website, but not immediately after filing. Two antecedent events must occur first:
ontinues to endeavor to put as much information as possible on its website for public
access. The Agency's system automatically creates a redacted version of charges and petitions, which
omit individuals' names, address, and other personally identifiable information. The redacted version is
what will post to the website, but not immediately after filing. Two antecedent events must occur first:
(1) a member of the Regional Office staff manually toggles the document's properties to trigger public
posting of the redacted version of the charge, and (2) cycling of the next day of automatic updates to
the website (currently, this occurs in the 12:01 a.m. - 2:00 a.m. Eastern Time window).
c.
What is the relationship between the filing confirmation number and the
traditional case docket number?
There are three numbers which are related to this inquiry: 1. the filing confirmation number, 2. an
inquiry number, and 3. the traditional case docket number (or "case number"). This response will
address all three.
The filing confirmation number is merely a tracking number generated at the e-filing web portal
immediately upon successful e-filing. A confirmation e-mail that thee-filing has been processed
successfully into the Agency's case-management system ensues typically 10-15 minutes after each e-
filing. In the event of problems with the automatic migration of documents from the Agency's e-filing
web portal to the case-management system, for example stemming from mechanical or software error,
cyber-attack, or disaster_-related system problems, the filing confirmation number serves as an
electronic receipt that the document was filed and provides a unique identifier that the Agency can use
to track what happened to the document.
tomatic migration of documents from the Agency's e-filing
web portal to the case-management system, for example stemming from mechanical or software error,
cyber-attack, or disaster_-related system problems, the filing confirmation number serves as an
electronic receipt that the document was filed and provides a unique identifier that the Agency can use
to track what happened to the document.
An inquiry number is generated when a user e-files a charge or petition. This number represents a
holding place within the Agency's electronic ca'se management system where data can be tracked and
documents associated before docketing. Any data and documentS associated with an inquiry will
automatically migrate to the case number after docketing. When a party e-files a charge or petition, a
-
'
-
subsequent e-mail will identify the inquiry number and thee-filer can use the inquiry number toe-file
additional documents until a ca_se number has been assigned through docketing.
Upon docketing, each case is assigned a unique case number, which follows the fa-miliar pattern of
(Region# e.g. 05, 21)-(case type, e.g. CA, CB, RD)-(Linique docket number, e.g. 163123), and all
documents and data associated with the inquiry migrate to that case number such that continued use of
the filing confirmation number or inquiry number is no longer necessary.
d.
Ca_n parties no longer e-file a pdf? If they do so, will it be converted to a web
formatted charge?
Parties continue to have th~ ability toe-file pdf charges, but it is not converted to a web formatted
charge. The introduction of wizard-assisted filing did not alter this. The Agency did receive some
feedback that the information on how to accomplish this was not apparent from the web-page
layout. As a result, the Agency reconfigured the webpage so that this option would be more apparent,
as shown below.
e. If parties fax in a charge, will it be converted to a web formatted charge?
No
atted
charge. The introduction of wizard-assisted filing did not alter this. The Agency did receive some
feedback that the information on how to accomplish this was not apparent from the web-page
layout. As a result, the Agency reconfigured the webpage so that this option would be more apparent,
as shown below.
e. If parties fax in a charge, will it be converted to a web formatted charge?
No. Faxed charges will be docketed as they are file and processed no differently than before the
introduction of wizard-assisted filing.
.
.
\
6. What is ~he status of Worker.gov concerning issues related to the National Labor Relations
Act?
The NLRB is a part c:if an inter-agency workgroup that provided initial input regarding the development
and deployment of worker.gov. During beta testing, the Agency continued to provide feedback on
enhancing the current website's organizational structure, design and content, including adding more
relevantjnformation, such as through worker stories, to assist users with understanding each Agency's
mission and the interplay between agencies where there is overlapping jurisdiction. The lead role of the
project has transitioned from a team at the Department of Labor to one at General Services
Administration. Once the new team is up to speed, the inter-agency workgroup will reconvene.
F. GC Memo 16-01- Mandatory Submissions to Advice and Advice Case Processing
1. GC Memo 16-01 asks Regions to submit to Advice cases that involve either the status of
workers in the on-demand economy or independent contractor misclassification cases. Please
provide statistics regarding how many of each category of such cases have been submitted to
Advice and describe any trends and the issues presented in these types of cases.
During FY 2016, the Division of Advice considered nine cases involving independent contractor
misclassifications, two of which involved the status of workers in the on-demand economy
ntractor misclassification cases. Please
provide statistics regarding how many of each category of such cases have been submitted to
Advice and describe any trends and the issues presented in these types of cases.
During FY 2016, the Division of Advice considered nine cases involving independent contractor
misclassifications, two of which involved the status of workers in the on-demand economy. The
independent contractor cases generally involved application of the Board's decision in FedEx Home
Delivery, where the Board reaffirmed that it will apply the traditional Restatement (Second) common-
law factors of Agency, and also clarified that it will consider evidence that the putative contractor is
rendering services as part of an independent business. The issues involving the status of workers in the
on-demand economy involved applying the particular circumstances of those operations to the FedEx
Home Delivery test. There were no observable trends.
2. Please provide statistics regarding how many cases have been submitted to Advice
regarding the status of temporary agency employees, and describe any trends and the issues
presented in these types of cases.
During FY 2016, two cases tangentially involving the status of temporary agency employees were
submitted to the Division of Advice. One concerned whether the use of temporary employees to
perform unit work violated the parties' collective-bargaining agreement, and the other concerned
whether the temporary agency was a joint employer with the user employer. There were no observable
trends.
3. What is the average length of time a case remains in the Division of Advice?
The Division of Advice does not keep statistics regarding average pending time in the Division, but the
median case-processing time for FY 2016 was 17.5 days.
4. What is the process to have a "Go memo" posted to the Board's website?
Only "Go" memoranda in closed cases are posted on the Agency's website
le
trends.
3. What is the average length of time a case remains in the Division of Advice?
The Division of Advice does not keep statistics regarding average pending time in the Division, but the
median case-processing time for FY 2016 was 17.5 days.
4. What is the process to have a "Go memo" posted to the Board's website?
Only "Go" memoranda in closed cases are posted on the Agency's website. The FOIA Branch determines
if the relevant unfair labor practice case has closed. Once the case is closed, the FOIA Branch confirms
with the Region that the posting of the memorandum will not impact any open, related ULP proceeding.
If it will, the memorandum is held until the closure of the related case(s). The FOIA Branch then reviews
the memorandum, and, pursuant to the FOIA, redacts any personal identifiable information and any
casehandling instructions that may impact pending or future case litigation. Upon completion of this
review process, the Go memorandum is posted on our website for public viewing.
G. GC Memo 16-03 - Seeking Board Reconsideration of the Levitz Framework
1. What is the status of cases seeking Board reconsideration of Levitz Furniture Co. of the
Pacific, 333 NLRB 7171 (2001)? Are there cases pending before the Board alleging that an
employer has violated Section S(a)(S) by unlawfully withdrawing recognition from an
incumbent union absent objective evidence that the union ac1tually had lost majority support?
The Regional Offices will continue to seek Board reconsideration of Levitz Furniture Co. in appropriate
cases. There are two cases pending on appeal before the Board.
2. Have the number of RM petitions increased since GC Memo 16-03 was issued?
The memo issued on May 9, 2016. Hence, we reviewed the number of RM petitions filed from May 10,
2016 to February 10, 2017, which totaled 46. By comparison, the number of RM petitions filed from
May 10, 2015 to February 10, 2016 was 42.
H
in appropriate
cases. There are two cases pending on appeal before the Board.
2. Have the number of RM petitions increased since GC Memo 16-03 was issued?
The memo issued on May 9, 2016. Hence, we reviewed the number of RM petitions filed from May 10,
2016 to February 10, 2017, which totaled 46. By comparison, the number of RM petitions filed from
May 10, 2015 to February 10, 2016 was 42.
H. Intermittent Strikes
What cases are in the pipeline regarding intermittent strikes, as referenced in OM 17-02?
There are no pending cases scheduled for litigation or in the Division of Advice regarding intermittent
strikes.
I. Time Targets
1. What are the current time frames for case dispositions?
The General Counsel's Impact Analysis program provides the analytical framework for classifying cases in
accordance with their imp9ct on the public and significance to the achievement of the Agency's mission.
Pursuant to this program, there have been no changes to the time frames for ULP case dispositions since
modifications were implemented on October 1, 2014. The current time frames for case dispositions are
as follows:
Category Ill
Category II
Category i
7 weeks
11 weeks
14 weeks
(a) What happens when these time frames are not met?
The time targets set forth above in response to question 1 are incorporated into each Regional
Director's performance plan.
Upon the filing of a charge, the Regional Director or Assistant Regional Director will assign the case an
Impact Analysis category. Any case still pending disposition on the last day of the month in which the
time target is exceeded is reported as "overage" The time targets themselves are fixed; however,
depending on the given situation, a case may be excused. The Division of Operations-Management
the filing of a charge, the Regional Director or Assistant Regional Director will assign the case an
Impact Analysis category. Any case still pending disposition on the last day of the month in which the
time target is exceeded is reported as "overage" The time targets themselves are fixed; however,
depending on the given situation, a case may be excused. The Division of Operations-Management
conducts a monthly review of overage cases and determines whether any given case should be excused.
Acceptable reasons for cases going overage are discussed in response to question l(b).
Overage statistics for ULP cases are kept monthly, but are measured on an annual basis. Under the
current standards, Regions have an overage allowance of up to 10% in each of the three categories of
cases. Should any Region exceed the 10% allowance in any given category for the year, such would have
an impact on the Regional Director's performance evaluation for that given year.
(b) What criteria does the Division of Operations-Management use to determine whether a
case should be excused from these time frames?
A case is not excused from the time frames entirely, but may be excused typically for reasons considered
outside of the control of the Regional office. There are a variety of reasons a case might not meet the
Impact Analysis time targets, but which would be considered outside the Region's control. This list, while
not exhaustive, underscores that, in addressing whether a case is excused, the Division of Operations-
Management gives serious consideration to such matters. For example, a new charge alleging violations
that have occurred after the initial charge was filed, and where both are so intertwined that a common
analysis and determination is required, represents one situation in which failure to meet the time target
for the first case is deemed outside of the Region's control
e Division of Operations-
Management gives serious consideration to such matters. For example, a new charge alleging violations
that have occurred after the initial charge was filed, and where both are so intertwined that a common
analysis and determination is required, represents one situation in which failure to meet the time target
for the first case is deemed outside of the Region's control. Similarly, where the charging party raises
additional allegations that pre-date the subject charge, an amended charge adding the earlier allegation
would excuse the charge from failing to meet the time target. The issuance of an investigative subpoena
to obtain testimony or documents necessary to enable the Region to make a decision excuses the case
from being considered overage for a reasonable period -
usually o~e month. In situations where there
has been a Regional determination and serious settlement negotiations are underway, the Region is
generally excused from issuing a complaint for one month. In certain circumstances, charges held in
abeyance pending the outcome of related proceedings in other cases may also be excused from meeting
the time target.
2. In FY 2016, did you meet the overall goal of issuing at least 50% of all decisions within 90
days of the close of the hearing and within 45 days of receipt of briefs or other submissions?
In FY 2016, AUs issued half of their decisions within 99 days from the close of hearing and within 48 days
from receipt of briefs or submissions.
3. In FY 2016, what percentage of cases went "over age" [unexcused]? What was the
breakdown for Category I, II and Ill cases?
There are few cases in Regional Offices that exceed the time targets without excuse. In FY 2016, 1.62%
of Category I, 1.95% of Category II, and 3.46% of Category Ill cases were overage and unexcused.
4. What events will toll or suspend the time targets?
As explained above, the time targets are fixed and are not tolled or suspended per se
hat was the
breakdown for Category I, II and Ill cases?
There are few cases in Regional Offices that exceed the time targets without excuse. In FY 2016, 1.62%
of Category I, 1.95% of Category II, and 3.46% of Category Ill cases were overage and unexcused.
4. What events will toll or suspend the time targets?
As explained above, the time targets are fixed and are not tolled or suspended per se. Rather, a case
that does not meet the relevant time target and goes overage may be excused for a particular month.
J. General Case Processing Issues
1. Assuming the petition for certiorari is granted, what will be! the approach in continuing to
handle -- D.R. Horton/Murphy Oil cases? What will the approach be for moving from
complaint to AU?
The D.R. Horton/Murphy Oil line of cases present the question of whether mandatory arbitration
agreements that bar employees from pursuing work related claims on a collective or class basis violate
Section 8{a)(l) of the Act. In view of the January 13, 2017, Supreme Court decision to grant certiorari in
NLRB v. Murphy Oil USA (5th Cir.), Epic Systems Corp. v. Lewis (7th Circuit) and Ernst & Young, et al. v.
Morris {9th Cir.), the Agency issued OM Memorandum 17-11, which sets forth the approach to be taken
.in cases raising this issue. Specifically, in merit cases which allege the employer is maintaining and/or
enforcing an agreement prohibited by the D.R. Horton/Murphy Oil line of cases, Regions are to propose
that the parties enter informal settlement agreements conditioned on the Agency prevailing before the
Supreme Court. For cases alleging both the maintenance/enforcement of a D.R. Horton/Murphy Oil
agreement, as well as allegations unrelated to that issue, Regions will go forward on the unrelated
allegations absent settlement. Case involving opt-in/opt-out clauses are to be held in abeyance. If
complaint has already issued and the matter is before the AU, Regions will not oppose motions to stay
proceedings related to D.R. Horton/Murphy Oil allegations.
2
ment of a D.R. Horton/Murphy Oil
agreement, as well as allegations unrelated to that issue, Regions will go forward on the unrelated
allegations absent settlement. Case involving opt-in/opt-out clauses are to be held in abeyance. If
complaint has already issued and the matter is before the AU, Regions will not oppose motions to stay
proceedings related to D.R. Horton/Murphy Oil allegations.
2. Please provide a list of the pending cases involving D.R. Horton/Murphy Oil issues, the
status of such cases, and the Regions or appellate courts in which they are pending.
The list attached at the end ofthis memo shows: D.R. Horton/Murphy Oil cases presently before the
Supreme Court; D.R. Horton/Murphy Oil cases arising from Board decis,ions and that are now in the
courts of appeals or that have previously been resolved in court; private-party D.R. Horton/Murphy Oil
cases in which the Board has participated as amicus; and D.R. Horton/Murphy Oil cases decided by the
Board that have not gone to court.
3. Please provide a list of any cases in which the General Counsel has authorized the Regions
to argue for reconsideration of Spruce Up and the status of such cases.
The Agency does not maintain a list of cases in which the General Counsel has authorized the Regions to
argue for reconsideration of Spruce Up. Further, as of March 2016, these cases were no longer
mandatory Advice submissions. However, in the following cases, the General Counsel authorized
Regions to argue for reconsideration of Spruce Up.
Walden Security, 14-CA-170110, pending;
Ernest-Spencer Metals, 14-CA-180657, pending;
MaxSentSecurity, 19-CA-139976 e. al., closed;
Northgate PostAcute Care, 20-CA-160353, closed.
of Spruce Up. Further, as of March 2016, these cases were no longer
mandatory Advice submissions. However, in the following cases, the General Counsel authorized
Regions to argue for reconsideration of Spruce Up.
Walden Security, 14-CA-170110, pending;
Ernest-Spencer Metals, 14-CA-180657, pending;
MaxSentSecurity, 19-CA-139976 e. al., closed;
Northgate PostAcute Care, 20-CA-160353, closed.
4. Please explain the rationale behind Memorandum OM 17-05, concerning the "Non-
Docketing of Facially Inappropriate Charge or Petition Forms." Who determines if allegations
on charges or petition forms are "blatantly false," "demeaning," or include "inappropriate
language" or "epithets?" What is the standard? Is there a process by which a charging party or
petitioner can challenge a Region's decision to reject a charge or petition?
Over the years, Regional Offices have docketed a small number of charges that contained inappropriate
comments regarding opposing parties or counsel that may cast aspersions on their legitimacy in some
way. These comments generally do not serve to advance or explain a charge allegation, but, rather,
serve a private purpose wholly at odds with the impartial investigation of the charge. The General
Counsel has concluded that it does not serve the public's interest to docket charges or petitions, and any
supporting documents contemporaneously submitted, with such blatantly false or demeaning content.
In all cases, the Regional Director will make the initial determination, with consultation with staff in the
Division of Operations-Management, as required. Although there is no formal standard or appeal
process, the Regional Director will offer to accept the charge or petition without offending language,
and may docket such a charge if rejection would result in a charge being time-barred, subject to it being
subsequently amended.
5
make the initial determination, with consultation with staff in the
Division of Operations-Management, as required. Although there is no formal standard or appeal
process, the Regional Director will offer to accept the charge or petition without offending language,
and may docket such a charge if rejection would result in a charge being time-barred, subject to it being
subsequently amended.
5. In the context of settlements and non-admissions clauses, what is a "repeat offender" or
"recidivist" employer? Who makes such determinations? What is the standard? Is there a
sunset on such designation? Is this designation solely regional in nature, or national? To the
extent that Regional Directors have discretion in this area, is there any guidance provided to
the RDs?
The term recidivist is commonly used in Board decisions where consideration is given to accepting any
given settlement agreement.. Whether recidivist behavior warrants rejection of a settlement agreement
is fact specific, including consideration of the seriousness of prior violations, length of time between
violations and number of facilities involved. See Service Merchandise Co., 299 NLRB 1132 (1990). Repeat
offenders, used more broadly, include the universe of charged parties who have been found to have
violated the Act by a particular Regional Office in the recent past. Those Regional Directors have full
discretion to make such determinations. Non-admission clauses are not routinely incorporated into
settlement agreements regardless of whether the charged party is a repeat violator. See ULP CHM
Section 10130.8. While there is not a specific standard, in situations where a charged party has been
found by the Region to have violated the Act in the recent past, Regions have been given guidance to
consider progressively increasing the formality of settlement agreements and may decline to agree to
inclusion of a non-admissions clause, or decline to agree to an informal settlement, instead insisting on a
formal settlement
ot a specific standard, in situations where a charged party has been
found by the Region to have violated the Act in the recent past, Regions have been given guidance to
consider progressively increasing the formality of settlement agreements and may decline to agree to
inclusion of a non-admissions clause, or decline to agree to an informal settlement, instead insisting on a
formal settlement. Ultimately, whether to agree to any given settlement or not is left to the discretion
of the Regional Director. As in prior years, the progression is not mandated, and there may be
compelling circumstances where a Region may insist on a formal settlement even the absence of prior
merit findings or, conversely, may approve an informal settlement notwithstanding prior merit findings.
6. For the EAJA letters (evidence letters) that Charged Parties receive:
a. When a letter has issued and the Charging Party subsequently filed an amended charge, what
should the Charged Party respond to and are the deadlines also modified?
Requesting a Charged Party's response to an amended charge, along with providing a deadline for the
submission of evidence, is handled on a case by case basis, balancing such factors as the Agency's
obligation to conduct full and complete investigations, its statutory obligation to resolve unfair labor
practice allegations expeditiously, its obligation to provide the Charged Party with adequate notice of
the allegations and sufficient time to respond, the complexity of the allegations, and the amount of
additional information, if any, that is being sought. There are some situations in which the amendment
to the charge is not substantial (i.e., it reflects a correction in a party's name or address, or it merely
deletes allegations) and does not warrant an extension of the deadlin"e for submitting evidence or the
issuance of a new request for evidence letter
f the allegations, and the amount of
additional information, if any, that is being sought. There are some situations in which the amendment
to the charge is not substantial (i.e., it reflects a correction in a party's name or address, or it merely
deletes allegations) and does not warrant an extension of the deadlin"e for submitting evidence or the
issuance of a new request for evidence letter. Similarly, there are situations in which, although the
amendment is substantial, the Agency has already requested the information needed to resolve the
amended allegations in its initial request for evidence letter. In such cases, the Agency may determine
that a new request for evidence letter and extension of the deadline for submitting evidence are not
necessary. Conversely, in situations in which the amendment to the charge and the additional
information being sought is substantial, and, where the Region has not already requested this
information during its initial contacts with the Charged Party, an additional request for evidence would
be made and the deadline for submitting evidence would be extended.
b. After an amended charge is filed, there is sometimes - but not always - a new EAIA letter
incorporating what is still active at that time. Recognizing that amended charges often not
only add allegations but also remove allegations, is there guidance regarding issuing a new
letter, rather than relying upon the original letter which may be outdated and which may seek
information beyond the scope of the remaining allegations?
Since there are myriad situations, depending upon such factors as the allegations of the original and
amended charge, and whether any additional information is being sought as a result of the amendment,
there is no written guidance regarding whether a new request for evidence letter is warranted as a
result of the filing of an amended charge
ation beyond the scope of the remaining allegations?
Since there are myriad situations, depending upon such factors as the allegations of the original and
amended charge, and whether any additional information is being sought as a result of the amendment,
there is no written guidance regarding whether a new request for evidence letter is warranted as a
result of the filing of an amended charge. As noted in the prior answer, there are some situations in
which no new request for evidence is necessary and some cases in which a new request for evidence
letter is issued.
c.
After the initial EAIA letters are issued, is there any instruction on investigation follow-up
requests, including whether agents should vet such requests with a supervisor before sending
or other efforts to limit the number of requests?
The Agency strives to ensure that its requests for follow up evidence are necessary to assist in making a
final Regional determination. There are no specific instructions on investigative follow-up requests,
including whether an agent should vet such requests with a supervisor. However, Board agent
discussions with his/her supervisor often occur: when there are novel or complex issues in the case and
when the Board agent has minimal Board tenure and/or experience with those issues.
8. When a party or witness leaves a voicemail message on the Regional Office's general voice
mail, does that message get transcribed and sent to the Board agent? If so, does that message
become part of the case record?
Regional office main numbers are not designed in such a way that voicemail messages can be
transcribed. Any voicemail message left on the main number is retrieved by Regional Office
administrative professional staff and relayed to the appropriate ini:lividual.
9
voice
mail, does that message get transcribed and sent to the Board agent? If so, does that message
become part of the case record?
Regional office main numbers are not designed in such a way that voicemail messages can be
transcribed. Any voicemail message left on the main number is retrieved by Regional Office
administrative professional staff and relayed to the appropriate ini:lividual.
9. When a petition for review or application for enforcement is filed, it is unclear whether a
system exists for notifying parties who filed the charges or were otherwise involved in the
case, with the result being that partie~ do not learn of the petition or application until after
the deadline for intervening has passed, if ever. What is the current procedure for notifying
the charging party and other involved parties, if any? Will the Agency consider making it
routine procedure to notify all the parties involved at the time the agency learns a petition for
review or application for enforcement is filed?
In accordance with the Federal Rules of Appellate Procedure, we serve copies of our applications and
cross-applications for enforcement on all parties to the Board proceeding, including the Charging
Party. Those same Rules similarly require parties filing petitions for review to serve "each party
admitted to participate in the agency proceedings, except for the respondents."
Real-time information about petitions for review and applications for enforcement can now be found on
our website at https://www.nlrb.gov/cases-decisions/appellate-court/petition-and-application.
10. Is the General Counsel giving Regions direction on consulting with charging parties before
settlement is reached with a charged party? Do such discussions occur before or after
discussion with the charged party?
The General Counsel understands the importance of the Charging Party's position in any settlement
discussion
www.nlrb.gov/cases-decisions/appellate-court/petition-and-application.
10. Is the General Counsel giving Regions direction on consulting with charging parties before
settlement is reached with a charged party? Do such discussions occur before or after
discussion with the charged party?
The General Counsel understands the importance of the Charging Party's position in any settlement
discussion. While the ULP CH M's sections on settlement have not changed since this question was
answered in 2015, Regions have subsequently been strongly encouraged to follow best practices of
consulting with the Charging Party prior to making an initial settlement proposal to the Charged Party
and to use their discretion in determining whether to submit the initial settlement proposal to both
parties concurrently. In addition, the General Counsel has imparted to Regions the importance of
regularly considering the Charging Party's position when assessing any counterproposals made by the
Charged Party, and to consider involving the Charging Party in that process, including to test factual
assertions made by the Charged Party.
II. Remedies
A. Following the D.C. Circuit's decision in H. T.H. Corp. v. NLRB, 2016 WL 2941936 (May 20,
2016), what is the General Counsel's position on requesting fees and expenses? Are there
any other cases pending concerning such remedies?
The Board has inherent authority to award litigation costs as an exception to the American Rule if a
party engages in unusually aggravated bad-faith conduct related to the litigation before the Board. The
Board also has broad remedial authority under Section 10(c) of the Ad to direct violators to reimburse
Charging Parties for their negotiating and othe_r expenses to remedy egregious bargaining violations.
The General .Counsel continues to seek litigation expenses where necessary to effectuate the purposes
of the Act following the D.C. Circuit's H. T.H. Corp. decision. The Agencydoes not track pending cases
concerning such remedies.
B
der Section 10(c) of the Ad to direct violators to reimburse
Charging Parties for their negotiating and othe_r expenses to remedy egregious bargaining violations.
The General .Counsel continues to seek litigation expenses where necessary to effectuate the purposes
of the Act following the D.C. Circuit's H. T.H. Corp. decision. The Agencydoes not track pending cases
concerning such remedies.
B. Does the Agency have any plans to increase Regional staff training with regard to the
deferred action process under the Department of Homeland Security policies?
The Agency has no plans to increase Regional staff training on this issue at this time.
C. Are Regions seeking additional remedies where.Hoffman Plastic bars back pay? If so,
please describe. How. many formal settlements have resulted where Hoffman Plastic bars
ba& pay?
Regardless of whether there is a bar to backpay due to immigration or work authorization status,
Regions have sought enhanced remedies in cases where Respondents have targeted vulnerable
immigrant workers by engaging iri threatening and retaliatory conduct. In these cases, while there was
no bar to backpay, remedies pied have included a requirement that. Respondents: post and read a Board
notice to employees in both Spanish and English; mail a copy of the Board order to Respondent's
employees and supervisors at all facilities; publish the Board order in local publications of general
interest; allow employees of Respondent to undergo training regarding their rights under the Act
conducted by a Board agent during paid work time; require supervisors and managers of the
Respondent to undergo a training on compliance with the Act conducted by a Board agent on paid work
time; and provide a union with access to employ,ee contact information.
D
r in local publications of general
interest; allow employees of Respondent to undergo training regarding their rights under the Act
conducted by a Board agent during paid work time; require supervisors and managers of the
Respondent to undergo a training on compliance with the Act conducted by a Board agent on paid work
time; and provide a union with access to employ,ee contact information.
D. OM 16-24 notes that Regions have been instructed to seek reimbursement for
consequential economic harm incurred as a result of a respondent's unlawful conduct (for
example, expenses resulting from car reposses'sion due to failUre to make a car payment,
penalties for early withdrawal from retirement accounts in order to cover. living expenses, and
loss of home equity in foreclosure action due to missed mortgage payments). It also notes
that Regions are encouraged to continue to search for other appropriate remedies that
address the allegations in the complaint. Please describe any such remedies sought and the
results of such efforts to obtain these remedies.
The Office of the General Counsel's Compliance Unit in Headquarters is tasked with furnishing guidance
and training to Regions regarding appropriate remedies generally, including reimbursement for
consequential economic harm. The Agency has not collected data regarding examples of remedies
sought and obtained as reimbursement for consequential economic harm.
E. GC Memo 16-01 asks Regions to submit the following matters to Advice:
mpliance Unit in Headquarters is tasked with furnishing guidance
and training to Regions regarding appropriate remedies generally, including reimbursement for
consequential economic harm. The Agency has not collected data regarding examples of remedies
sought and obtained as reimbursement for consequential economic harm.
E. GC Memo 16-01 asks Regions to submit the following matters to Advice:
Cases that present the opportunity to argue that St. George Warehouse, 351 NLRB 961 (2007),
should be overturned and that the employer should have the burden of showing that a
discriminatee failed to make an adequate search for interim employment;
Cases covered by GC Memo 11-01 (Effective Remedies in Organization Campaigns) where the
following remedies might be appropriate: (1) access by non- employees to employer
electronic communications systems, (2) access by nonemployees to non-work areas, and (3)
providing a union with equal time to respond to captive audience speeches;
Cases covered by GC Memo 11-06 (First Contract Bargaining Cases: Regional Authorization to
Seek Additional Remedies and Submissions to Division of Advice) where reimbursement of
bargaining expenses or of litigation expenses might be appropriate.
Please provide statistics regarding how many of each category of such cases have been
submitted to Advice and describe any trends or novel remedial issues presented in these or
other cases. What is the number of complaints issued and/or pending for each such category,
and merit determinations?
During FY 2016, no cases were submitted to the Division of Advice presenting the issue raised in St.
George Warehouse. Similarly, no cases were submitted asking for any of the specific remedies
enumerated above from GC Memorandum 11-01. However, in one case, a Regional Office was
authorized to seek an order requiring thatthe employer provide the union with access to employee
contact information, a remedy also discussed in GC Memorandum 11-01
vision of Advice presenting the issue raised in St.
George Warehouse. Similarly, no cases were submitted asking for any of the specific remedies
enumerated above from GC Memorandum 11-01. However, in one case, a Regional Office was
authorized to seek an order requiring thatthe employer provide the union with access to employee
contact information, a remedy also discussed in GC Memorandum 11-01. In that same case, which
involved unlawful conduct directed toward employees' immigration status, the Regional Office was
authorized to seek the additional remedies discussed in GC Memorandum 15-03, namely, training for
employees on their rights under the Act conducted by a Board agent during paid work time and training
for supervisors and managers on compliance with the Act conducted by a Board agent on paid work
time. In two other cases in FY 2016, two Regional Offices were authorized to seek reimbursement of
bargaining expenses. There were no discernible trends presented in these cases, and the Agency does
not track the progress of the case after authorizing a Regional Office to seek a particular remedy. Lastly,
no submissions were received regarding litigation expenses in first contract cases.
F. If a charged party agrees to a posting in an employer rules case involving a national
handbook (or rules applicable in multiple regions), are Regions given guidance or is there a
policy regarding whether to require a national posting?
As a general rule, both physical and electronic notice posting is contemplated for all locations affected
by a violation of the Act. See ULP CHM Section 10132. In evaluating settlement proposals, Regions are
also to assess practical considerations and whether it may effectuate the policies of the Act to accept a
lesser remedy. See ULP CHM Section 10124.3.
G. Since OM 14-48, has there been any further guidance to Regions regarding default
language; if not, is any planned?
r all locations affected
by a violation of the Act. See ULP CHM Section 10132. In evaluating settlement proposals, Regions are
also to assess practical considerations and whether it may effectuate the policies of the Act to accept a
lesser remedy. See ULP CHM Section 10124.3.
G. Since OM 14-48, has there been any further guidance to Regions regarding default
language; if not, is any planned?
The instructions relayed in OM Memorandum 14-48 remain in place. In OM Memorandum 16-19, the
Associate General Counsel for the Division of Operations-Management furnished additional guidance for
Regions concerning instances where it is necessary to pursue a default judgment based on non-
compliance with a settlement agreement. The Office of the General Counsel has also updated the ULP
CHM to regularize guidance on default language, including Sections 10130.10 and 10146.7.
H. What guidance have the Regions been given r~garding discretion to include non-admissions
clauses in settlement agreements? Is any further guidance planned at this time?
Section 10130.8 ofthe ULP CHM sets out that non-admissions clauses should not routinely be
incorporated into settlement agreements: Regions are instructed that if the charged party requests a
non-admissions clause, that request should be considered on a case-by-case basis. The Regional Director
has discretion to determine whether agreeing to a non-admissions clause is appropriate in any given
case. No further guidance is planned at this time.
Ill. REPRESENTATION CASES
RC
RD
A. Statistics
1. Please provide statistics concerning the number of RC and RD petitions filed, the number of
elections conducted in each category, and the union win rate.
Petitions Filed
2029
313
Elections Conducted
1396
174
% Won by Union
73%
40%
Overall, in FY 2016, there were 2537 petitions filed.
FY 2013
FY 2014
FY 2015
FY 2016
FY 2011
FY 2012
FY 2013
FY 2014
2
ES
RC
RD
A. Statistics
1. Please provide statistics concerning the number of RC and RD petitions filed, the number of
elections conducted in each category, and the union win rate.
Petitions Filed
2029
313
Elections Conducted
1396
174
% Won by Union
73%
40%
Overall, in FY 2016, there were 2537 petitions filed.
FY 2013
FY 2014
FY 2015
FY 2016
FY 2011
FY 2012
FY 2013
FY 2014
2. Please provide statistics concerning the median number of days from petition to election,
with a comparison to the number of median days in prior years.
Median Number of Days
38
With Election Agreement
37
With Contested Cases
59
38
37
59
33
32
55.5
23
23
35
3. Please provide statistics concerning the average unit size sought in RC petitions and the
average unit size determined to be appropriate. How do these statistics compare to the years
before Specialty Healthcare?
Median size of unit petitioned for
20.5
26
25
25
Median size of unit deemed to be appropriate
20
26
25
25
FY 2015
FY 2016
FY 2015
FY 2016
23
22
23
22
4. Please provide statistics concerning the use of mixed, mail, and manual ballots. Have mail
ballot elections increased? Has any guidance been provided regarding return time for mail
ballots? Is consideration given to posting mixed, mail, or manual ballots statistics on the
Board's website?
Manual
1,639
1,417
212
216
Mixed
21
27
Total
1,872
1,660
The amount of mail ballot elections remained about the same as last fiscal year. While there has not
been recent guidance provided regarding return time for mail ballots, the Regional Offices follow the
Representation CHM.
Further, we note that you can find many representation case statistics on our website at
https://www. n I rb.gov I news-outreach/graphs-data/ petitions-and-elections.
B. Election Rules
1. Some practitioners have asked why the pre-hearing conference is no longer used
s not
been recent guidance provided regarding return time for mail ballots, the Regional Offices follow the
Representation CHM.
Further, we note that you can find many representation case statistics on our website at
https://www. n I rb.gov I news-outreach/graphs-data/ petitions-and-elections.
B. Election Rules
1. Some practitioners have asked why the pre-hearing conference is no longer used. Is
there guidance regarding whether and when to have a pre-hearing conference?
No guidance has been issued concerning the discontinuation of pre-hearing conferences. GC
Memorandum 15-06, provides the following guidance concerning pre-hearing conferences:
If the parties have not entered into an election agreement, the Region should, where
appropriate, conduct a pre-hearing conference at the Regional Office or by conference call for the
purpose of further exploring the possibility of entering into an election agreement or narrowing
the issues to be litigated at a hearing.
At this conference, the Board agent should explore the issues raised in the Statement of
Position and attempt to obtain an election agreement. If an agreement is not possible, every
effort should be made to narrow the issues for hearing and to reach written stipulations on the
issues that are not in dispute, such as commerce, labor organization status, eligibility formulas,
unit inclusions, and unit exclusions. These stipulations can either be read into the record or be
introduced as exhibits during the hearing. The Board agent should also discuss with the parties
the nature of the evidence to be presented and the order in which it will be elicited.
2. If information is missing from an Employer's list, should the Regions still abide by the
parties' stipulated election date?
a.
If so, what factors are considered in making this decision?
nto the record or be
introduced as exhibits during the hearing. The Board agent should also discuss with the parties
the nature of the evidence to be presented and the order in which it will be elicited.
2. If information is missing from an Employer's list, should the Regions still abide by the
parties' stipulated election date?
a.
If so, what factors are considered in making this decision?
This response presumes the question refers to the voter eligibility list, rather than the list of names,
work locations, shifts and job classifications of individuals in the proposed unit required by Section
102.63 of the Rules and Regulations.
The Representation CHM Section 11312.7 advises that if a voter list is not received at all or a list that
does not include all of the required information is received (Sec. 11312.4), the Regional Director should
proceed with the election unless requested not to, in writing, by the petitioner or an intervenor with a
petitioner's showing of interest (i.e., 30 percent or the equivalent).
3. Specific questions about the election rules:
a.
On Voter Lists, please provide information regarding the standard to determine
whether personal email addresses and· telephone numbers are deemed "available"
to an employer.
Have Regions been 'given any guidance on whether they are
permitted to require employers who are preparing Voter Lists to provide individual
employees' phone numbers or emails that are not contained in any official
employer database and only possessed by supervisors without the knowledge of
upper management or human resources? If so, what advice has been given?
While, the Board did not provide a standard against which Regions are to judge whether personal email
addresses or home and cellular telephone numbers are "available" or further define "available" in the
Final Election Rule, in GC Memorandum 15-06, the General Counsel reminded Regions of the Board's
statement that it is presumptively appropriate for the employer to produce multiple versions of the lis
the Board did not provide a standard against which Regions are to judge whether personal email
addresses or home and cellular telephone numbers are "available" or further define "available" in the
Final Election Rule, in GC Memorandum 15-06, the General Counsel reminded Regions of the Board's
statement that it is presumptively appropriate for the employer to produce multiple versions of the list
where the data required is kept in separate databases or files so long as all of the lists link the
information to the same employees, using the same names in the same order and are provided within
the allotted time. Further, informal guidance has been given that employers, who fail to ask their
supervisors and managers for such information to the extent that they posse,ss it, may be at risk for
having objections filed and potentially sustained regarding this issue.
b. Are parties permitted to provide Voter Lists in Excel format?
If the parties agree that the voter list will be provided in Excel format it is permissible to so provide the
list. GC Memorandum 15~06 also provides the following guidance concerning the format of the voter
list:
. the lists must be filed in common, everyday electronic file formats that
can be searched. Accordingly, unless otherwise agreed to by the parties, the list must be
provided in a table in a Microsoft Word file (.doc or docx) or a file that is compatible with
Microsoft Word (.doc or docx).
c. For FY 2016, what is the median time from:
1. Filing to election overall?
2. Filing to election in Stipulated Agreement cases?
3. Filing to election in DOE cases?
ormats that
can be searched. Accordingly, unless otherwise agreed to by the parties, the list must be
provided in a table in a Microsoft Word file (.doc or docx) or a file that is compatible with
Microsoft Word (.doc or docx).
c. For FY 2016, what is the median time from:
1. Filing to election overall?
2. Filing to election in Stipulated Agreement cases?
3. Filing to election in DOE cases?
'
In FY 2016, the median time frame from filing to election was 23 days, filing to election in stipulated
election agreements Was 23 days and the median time frame from filing to election in ODE cases was 35
days.
d. What is the total number and percentage of stipulated elections in FY 2016?
How does that compare to FY 2015?
In FY 2016, there were 1,506 stipulated elections, which was 91.5%.
In FY 2015, there were 1,679 stipulated elections, which was 91.7%.
e.
What is the total number and percentage of withdrawn petitions in FY 2016?
How do those compare to prior years?
In FY 2016, there were 835 petitions withdrawn out of a total of 2537 filed, which is 32.9%.
In FY 2015, there were 863 petitions withdrawn out of a total of 2822 filed, which is 30.6%.
f.
What is the total number and percentage of blocking charges in FY 2016? How
do those compare to prior years?
FY 2015
FY 2016
Total Petitions Filed
2,822
2,537
Total C Cases Blocking R Cases
237
168
Total R Cases Blocked by C Cases
133
100
Percentage of blocked petitions vs. petitions filed.
4.7%
3.9%
Percentage of blocking charges vs. charges filed
8.4%
6.6%
g. Has guidance been issued on extensions of time on hearings (within the
applicable 8-day period) to allow parties to negotiate stipulations? How many
extensions have been granted, and under what circumstances?
GC Memorandum 15-06 provides that, if a party wishes to postpone the hearing, it may make a
request to the Regional Director
rcentage of blocking charges vs. charges filed
8.4%
6.6%
g. Has guidance been issued on extensions of time on hearings (within the
applicable 8-day period) to allow parties to negotiate stipulations? How many
extensions have been granted, and under what circumstances?
GC Memorandum 15-06 provides that, if a party wishes to postpone the hearing, it may make a
request to the Regional Director. The Regional Director may postpone the hearing for up to 2 business
days upon request of a party showing special circumstances and for more than 2 business days upon
request of a party showing extraordinary circun:istances.
The Board did not articulate standards by which a Regional Director is to judge postponement
requests. However, the Regional Offices follow the Representation CHM at Section 11143, which
provides that, "A party wishing to request a postponement should make the request in writing and set
forth in detail the grounds for the request (i.e., not merely "prior commitments"). The request should
include the positions of the other parties regarding the postponement."
In FY 2016, there were 379 rescheduled hearings.
In FY 2015, there were 651 rescheduled hearings.
The Agency does not maintain statistics on how many extensions have been granted or under what
circumstances extensions are granted.
h. How many no-issue pre-election hearings were held in FY 2016? How does this
compare to prior years?
The Agency does not maintain statistics about the number of no-issue pre-election hearings held.
1. Are there statistics on the median amount of time it is
taking Regional Directors to issue decisions in no-issue
hearings?
The Agency does not maintain statistics on the median amount of time it takes to issue
decisions in no-issue hearings.
C. Joint Employer
1
this
compare to prior years?
The Agency does not maintain statistics about the number of no-issue pre-election hearings held.
1. Are there statistics on the median amount of time it is
taking Regional Directors to issue decisions in no-issue
hearings?
The Agency does not maintain statistics on the median amount of time it takes to issue
decisions in no-issue hearings.
C. Joint Employer
1. How many cases have raised the issue of joint employment and, therefore, implicate the
Browning-Ferris and/or Miller & Anderson decisions? Are Regions applying the Browning
Ferris standard (articulated in an R-Case) to C-Cases? Does the Agency intend to distribute
further guidance with regard to the impact of the Browning-Ferris and/or Miller & Anderson
decisions?
In FY 2016, six ULP cases that raised the issue of joint employment were submitted to the Division of
Advice. Regions are applying the Browning-Ferris standard in ULP cases. The General Counsel has no
immediate plan to distribute further guidance with regard to the impact of the Browning-Ferris and/or
Miller & Anderson decisions.
2.
Has the Board provided any guidance on whether McDonald's-type cases can be settled by
franchisees without admission of "joint employer" status?
No; Where it is has been found that one charged employer is a joint employer of another charged
employer's employees and jointly Hable to remedy the other employer's unfair labor practices, both
charged employers would ordinarily be party to a settlement agreement that remedies those unfair
labor practices. In the particular circumstances where it has been found that a franchisor is jointly liable
to remedy unfair labor practices based on a joint employer relationship with the franchisee, the General
Counsel has provided no general guidance regarding settlement by the franchisee without the franchisor
also being a party to the settlement agreement.
ent that remedies those unfair
labor practices. In the particular circumstances where it has been found that a franchisor is jointly liable
to remedy unfair labor practices based on a joint employer relationship with the franchisee, the General
Counsel has provided no general guidance regarding settlement by the franchisee without the franchisor
also being a party to the settlement agreement.
3. Have there been charges raising joint employer issues in secondary boycott cases? If so,
please describe the GC's experience with such cases.
We do not have a report reflecting which charges alleging unlawful secondary boycott conduct (i.e.,
alleging violations of Sections 8(b)(4)(A), 8(b)(4)(B) or 8(e)) may have raised joint employer issues.
However, none were submitted to the Division of Advice and, thus, the General Counsel has not been
presented with such cases.
IV. MISCELLANEOUS
A. Are there any rules that the Board follows when it is either less than fully constituted or
when it is awaiting appointment of new members after a change of political parties in the
Executive Branch?
No. There are no specific rules.
B. What is the current policy for referral of cases to the National Mediation Board? Some
practitioners have reported delayed processing of regional office investigations. Can the
current process be improved in order to ensure more timely adjudication of open matters?
Section 11711 of the ULP CHM provides that, if it is clear that the NLRB has jurisdiction over the
employer, the Regional Office should proceed with the processing of the case. On the other hand, if it is
clear that the employer falls under the jurisdiction of the Railway Labor Act (RLA), the parties should be
referred to the National Mediation Board (NMB) and the charge or petition should be dismissed, absent
withdrawal. The Agency's practice is to refer cases of arguable or doubtful RLA jurisdiction to the NMB
for an advisory opinion on the jurisdictional issue
se. On the other hand, if it is
clear that the employer falls under the jurisdiction of the Railway Labor Act (RLA), the parties should be
referred to the National Mediation Board (NMB) and the charge or petition should be dismissed, absent
withdrawal. The Agency's practice is to refer cases of arguable or doubtful RLA jurisdiction to the NMB
for an advisory opinion on the jurisdictional issue. Investigations of jurisdiction under the RLA are
handled the same as other investigations where jurisdiction is in question and are often fact intensive.
As with all its investigations, the Agency continues to explore ways to conduct them even more
expeditiously.
C. What is the policy for reimbursing witnesses for hotel and travel expenses when
subpoenaed by the GC to testify at a Board hearing? Are there time goals for providing such
reimbursement? Some practitioners have reported long delays in witnesses receiving
reimbursement.
Section 11780 of the ULP CHM provides that witnesses subpoenaed by the NLRB are entitled to travel
expenses if they make the appropriate claim. Where appropriate, witnesses are reimbursed for travel,
lodging, and meal expenses. A per diem allowance will be paid to a witness when an overnight stay is
required at the place of attendance if such place is so far removed from the residence of the witness as
to prohibit same day travel. In order to ensure prompt handling and payment, subpoenaed witnesses'
should immediately complete and sign a claim form supplied by the NLRB after appearance at the
proceeding and after release from a subpoena, and provide accurate banking information or a signature
to waive Electronic Funds Transfer payments in order to receive a paper check type of compensation.
to prohibit same day travel. In order to ensure prompt handling and payment, subpoenaed witnesses'
should immediately complete and sign a claim form supplied by the NLRB after appearance at the
proceeding and after release from a subpoena, and provide accurate banking information or a signature
to waive Electronic Funds Transfer payments in order to receive a paper check type of compensation.
D. What is the status of any memoranda; cooperation agreements and/or initiatives between
the NLRB and the Department of Labor?
The NLRB and DOL's Wage and Hour Division have signed a memorandum of understanding to enhance
and maximize the enforcement of the federal laws administered between the two agencies. The NLRB
and DOL's OSHA Division have similarly done so.
No.
E. Are there any plans for re-litigation of any issues and/or any anticipated changes in the
Board's non-acquiescence policy?
F. Has the GC developed technology or other initiatives to facilitate remote investigations
(e.g., collection of affidavits while agents are working remotely)?
Skype capabilities and other unified communication enhancements have been deployed to the Regional
Offices, a,long with our electronic case file, NxGen. Thus, Board agents working remotely have sufficient
technology to ensure that investigations are being processed efficiently and effectively while
teleworking. With regard to affidavits, particularly initial ones, it remains preferable to take those face
to face.
G. Are there any plans for further Regional reorganizations?
Not at this time.
H. Is the Agency sufficiently funded to meet its mission? What would be the optimum funding
level? If a lack of funding is affecting Agency operations, what areas are impacted?
No, the current Continuing Resolution level of $273,702,700 is inadequate. We have been flat funded,
with government-wide rescissions on top of the flat funding, for years. Thus, we have not been able to
keep up with cost of living adjustments and other inflationary increases over the years
the optimum funding
level? If a lack of funding is affecting Agency operations, what areas are impacted?
No, the current Continuing Resolution level of $273,702,700 is inadequate. We have been flat funded,
with government-wide rescissions on top of the flat funding, for years. Thus, we have not been able to
keep up with cost of living adjustments and other inflationary increases over the years. All areas are
impacted, which leads to a detrimental effect on the public we serve despite all our efforts. For
example, we are unable to sufficiently staff the Agency overall, and particularly the Regional Offices.
And, our employees have not been able to participate in relevant and necessary training opportunities
due to budgetary constraints. Further, we are unable to make significant enhancements to our
technology to enable more efficient case processing, to offer more .information and transparency to the
public on our website, to fully perform an e-Service function, and to create a transactional system for
the public on our website so that they can perform their own searches and on our website. Optimum
funding would include increasing our appropriation significantly to enable us to, at the very least, hire
and train qualified professionals and administrative professionals, including those needed for translation
and technical support, and to exponentially enhance our technology, as opposed to just maintaining the
status quo.
hat they can perform their own searches and on our website. Optimum
funding would include increasing our appropriation significantly to enable us to, at the very least, hire
and train qualified professionals and administrative professionals, including those needed for translation
and technical support, and to exponentially enhance our technology, as opposed to just maintaining the
status quo.
Cases Related to D.R. Horton
Supreme Court Case
Case No.
Certiorari Granted
NLRB v. Murohv Oil'USA Inc.
16-307
Eoic Svstems Coro. v. Lewis
16-285
Ernst & Youno LLP v. Morris
16-300
Petition Pending
NLRB v. 24 Hour Fitness USA Inc.
16-689 IPet.l
NLRB v. PJ Cheese Inc.
16-800 IPet.l
NLRB v. SF Markets LLC
16-801 IPet.l
Board Case
Board Case No.
Reporter
D&O Date
CircuiULead Case No.
Brief Filed/Status
Argument
Judgment
Aoole American Grouo LLC Aoolebees
18-CA-103319
363 NLRB No. 111
212212016 2d Cir. 16-4232
Rose Grouo d/b/a Aoolebee's Rest.
05-CA-135360
363 NLRB No. 75
1212212o1°5 3d Cir. 15-4092
6/23/2016
10/512016
..
AT&T Mobilitv Se~ice LLC
22-CA-127746
363 NLRB No. 99 .
112112016 4th Cir. 16-1099
61112016
121712016
ISS Facilitv Services Inc.
28-CA-126024
363 NLRB No. 160
4n/2016 5th Cir. 16-60261
Summarv Disoosition
NIA
9n/2016
D.R. Horton
12-CA-025764
357 NLRB No. 184
11312012 5th Cir. 12-60031
91412012
2/512013
121312013
Murohv Oil
10-CA-038804
361 NLRB No. 72
1012812014 5th Cir. 14-60800
41112015
813112015
211812016
Chesaoeake Enemu
14-CA-100530
362 NLRB No. 80
413012015 5th Cir. 15-60326
913012015 NIA
1212/2016
Neiman Marcus
31-CA-074295
362 NLRB No. 157
81412015 5th Cir. 15-60572
Abevance
PJ Cheese
10-CA-113862
362 NLRB No. 177
812012015 5th Cir. 15-60610
Summarv Disoosition
NIA
812512016
Leslie's Poolmart
21-CA-102332
362 NLRB No. 184
812512015 5th Cir. 15-60627
Abevance
On Assianment Staffina $ervs. ...
32-CA-095025 ·
36~2 'l~LRB No. 1°89
812712015 5th Cir
913012015 NIA
1212/2016
Neiman Marcus
31-CA-074295
362 NLRB No. 157
81412015 5th Cir. 15-60572
Abevance
PJ Cheese
10-CA-113862
362 NLRB No. 177
812012015 5th Cir. 15-60610
Summarv Disoosition
NIA
812512016
Leslie's Poolmart
21-CA-102332
362 NLRB No. 184
812512015 5th Cir. 15-60627
Abevance
On Assianment Staffina $ervs. ...
32-CA-095025 ·
36~2 'l~LRB No. 1°89
812712015 5th Cir. 15-60642
Summarv Disoosition
NIA
61612016
Amex Card Services Co.
28-CA-123865
363 NLRB No. 40
1111012015 5th Cir. 15-60830
Abevance
Citiarouo Tech. Inc.
12-CA-130742
363 NLRB No. 55
121112015 5th Cir. 15-60656
1012412016 NIA
121612016
Prof. Janitorial Serv. of Houston
16-CA-112850
363 NLRB No. 35
1112412015 5th Cir. 15-60656
Partial Summ. Disc.
NIA
Dismissed
Brinker Intl. Pavroll Co.
27-CA-110765
363 NLRB No. 54
121112015 5th Cir. 15-60659
Abevance
U.S. Xoress Enterorises Inc.
10-CA-141407
363 NLRB No. 46
1113012015 5th Cir. 15-60871
Abevance
Kmart Coro.
06-CA-091823
363 NLRB No. 66
1211612015 5th Cir. 15-60697
Abevance
RPM Pizza LLC
15-CA-113753
363 NLRB No. 62
1212212015 5th Cir. 15-60909
Summarv Disoosition
NIA
712912016
Citi Trends Inc.
1 O-CA-133697
363 NLRB No. 74
1212212015 5th Cir. 15-60913
612612016 NIA
611012016
Domino's Pizza LLC
29-CA-1 031 BO
363 NLRB No. 77
1212212015 5th Cir. 15-60914
Abevance
Ross Stores Inc.
31-CA-109296
363 NLRB No. 79
12/2312015 5th Cir. 15-60916
Abevance
SolarCitv Coro.
32-CA-128085
'
363 NLRB No. 63
1212212015 5th Cir. 16-60001
Abevance
24-Hour Fitness USA Inc.
20-CA-035419
363 NLRB No. 84
12/2412015 5th Cir. 16-60005
Summarv Disoosition
NIA
612712016
MasTec Services Co.
16-CA-066102
363 NLRB No. 61
1212312015 5th Cir. 16-60011
Summarv Disoosition
NIA
711112016
(as of February 10, 2017)
12/2312015 5th Cir. 15-60916
Abevance
SolarCitv Coro.
32-CA-128085
'
363 NLRB No. 63
1212212015 5th Cir. 16-60001
Abevance
24-Hour Fitness USA Inc.
20-CA-035419
363 NLRB No. 84
12/2412015 5th Cir. 16-60005
Summarv Disoosition
NIA
612712016
MasTec Services Co.
16-CA-066102
363 NLRB No. 61
1212312015 5th Cir. 16-60011
Summarv Disoosition
NIA
711112016
(as of February 10, 2017)
'
Cases Related to D.R. Horton
Board Case
Board Case No.
Reporter
D&O Date
CircuiULead Case No.
Brief Filed/Status
Argument
Judgment
GameStoo Coro.
20-CA-080497
363 NLRB No. 89
12131/2015 5th Cir. 16-60031
Abevance
Emolovers Resource
31-CA-097189
363 NLRB No. 59
12117/2015 5th Cir. 16-60034
6/30/2016 NIA
11/1/2016
-
Waffle House Inc.
10-CA-121178
363 NLRB No. 104
211/2016 5th Cir. 16-60077
Summarv Disoosition
N/A
8/9/2016
UnitedHealth Grouo. Inc.
02-CA-118724
363 NLRB No. 134
2125/2016 5th Cir. 16-60122
Summarv Disoosition
N/A
7/21/2016
RGIS LLC
28-CA-136313
363 NLRB No. 132
2123/2016 5th Cir. 16-60129
Summarv Disposition
NIA
7nl2016
SF Markets LLC
21-CA-099065
363 NLRB No. 146
3/24/2016 5th Cir. 16-60186
Summarv Disoosition
N/A
7/26/2016
Multiband EC Inc.
25-CA-108828
363 NLRB No. 100
1/21/2016 5th Cir. 16-60197
Abevance
Amerisave Mortaaae Coro.
1 O-CA-082519
363 NLRB No. 174
4/29/2016 5th Cir. 16-60273
Abevance
CVS RX Services Inc.
29-CA-141164
363 NLRB No. 180
5/4/2016 5th Cir. 16-60289
Abevance
Securitas Securitv Services USA Inc.
31-CA-072179
363 NLRB No. 182
5/11/2016 5th Cir. 16-60304
Summarv Disoosition
N/A
8/16/2016
Acuitv Soecialtv Prods. Inc.
32-CA-075221
363 NLRB No. 192
5/16/2016 5th Cir. 16-60367
12119/2016
Adecco USA Inc.
32-CA-142303
364 NLRB No. 9
5/24/2016 5th Cir. 16-60375
11/17/2016/Abevance
Jack in the Box Inc.
32-CA-145068
364 NLRB No. 12
5/24/2016 5th Cir. 16-60386
10/24/2016 NIA
12113/2016
Lincoln Eastern Manai:iement Coro.
28-CA-14 7123
364 NLRB No. 16
5/31/2016 5th Cir
016
Acuitv Soecialtv Prods. Inc.
32-CA-075221
363 NLRB No. 192
5/16/2016 5th Cir. 16-60367
12119/2016
Adecco USA Inc.
32-CA-142303
364 NLRB No. 9
5/24/2016 5th Cir. 16-60375
11/17/2016/Abevance
Jack in the Box Inc.
32-CA-145068
364 NLRB No. 12
5/24/2016 5th Cir. 16-60386
10/24/2016 NIA
12113/2016
Lincoln Eastern Manai:iement Coro.
28-CA-14 7123
364 NLRB No. 16
5/31/2016 5th Cir. 16-60401
Abevance
Alternative Entertainment Inc.
07-CA-144404
363 NLRB No. 131
212212016 6th Cir. 16-1385
8/2212016
11/30/2016
Hobbv Lobbv Stores
20-CA-139745
363 NLRB No. 195
5/18/2016 7th Cir. 16-2297
Due 3/20
Cellular Sales of Missouri
14-CA-094714
362 NLRB No. 27
3/16/2015 8th Cir. 15-1620
9/10/2015
1/13/2016
8/10/2016
Advanced Services Inc.
26-CA-071805
363 NLRB No. 71
1212212015 8th Cir. 15-3988
Abevance
Countrvwide Financial Coro.
31-CA--072916
362 NLRB No. 165
8/14/2015 9th Cir. 15-72700
6/15/2016
HootWinc
31-CA-104872
363 NLRB No. 2
9/1/2015 9th Cir. 15-72839
6/3/2016
Niiiar Realtv. Inc. d/b/a Pama Miit.
21-CA~092054
363 NLRB No. 38·
11/20/2015 9th Cir. 15-73921
7/1/2016
Philmar Care LLC
31-CA-133242
363 NLRB No. 57
12111/2015 91h Cir. 16-70069
11/2212016
CPS Securitv (USA\ Inc.
28-CA-072150
363 NLRB No. 86
12124/2015 9th Cir. 16-70488
Abevance IMediationl
Centurv Fast Foods Inc.
31-CA-116102
363 NLRB No. 97
1/20/2016 9th Cir. 16-70686
Abevance
Network Caoital Fundino Coro.
21-CA-107219
363 NLRB No. 106
2118/2016 9th Cir. 16-70687
Abevance
FAA Concord H Inc.
32-CA-066979
363 NLRB No. 136
2124/2016 9th Cir. 16-70694
Abevance
The Pep Bovs
31-CA-104178
363 NLRB No. 65
12123/2015 9th Cir. 16-71036
Abevance
Kenai Drillina Ltd.
31-CA-128266
363 NLRB No. 158
3/31/2016 9th Cir. 16-71148
Abevance
Bloominadale's Inc.
31-CA-071281
363 NLRB No. 172
4/29/2016 91h Cir. 16-71338
Abevance
Ralph's Grocerv Co.
21-CA-073942
363 NLRB No. 128
2123/2016 91h Cir. 16-71422
Abevance
Covenant Care California LLC
21-CA-090894
363 NLRB No
-CA-104178
363 NLRB No. 65
12123/2015 9th Cir. 16-71036
Abevance
Kenai Drillina Ltd.
31-CA-128266
363 NLRB No. 158
3/31/2016 9th Cir. 16-71148
Abevance
Bloominadale's Inc.
31-CA-071281
363 NLRB No. 172
4/29/2016 91h Cir. 16-71338
Abevance
Ralph's Grocerv Co.
21-CA-073942
363 NLRB No. 128
2123/2016 91h Cir. 16-71422
Abevance
Covenant Care California LLC
21-CA-090894
363 NLRB No. BO
1212212015 9th Cir. 16-71502
Abevance IMediationl
Vallev Health Svstem LLC ·
28-CA-123611
363 NLRB No. 178
5/5/2016 9th Cir. 16-71647
Due 1/26
Tarlton and Son lnc./Robert Munoz
32-CA-119054
363 NLRB No. 175
4/29/2016 91h Cir. 16-71915
Beena Beautv Holdina. Inc.
31-CA-144492
364 NLRB No. 3
5/23/2016 9th Cir. 16-72015
Abevance
AWG Ambassador LLC
28-CA-118801
363 NLRB No. 137
2125/2016 9th Cir. 16-73514
Due 6/1
SJK Inc. d/b/a Fremont Ford
32-CA-151443
364 NLRB No. 29
6/16/2016 9th Cir. 16-74025
(as of February 10, 2017)
Cases Related to D.R. Horton
Board Case
Board Case No.
Reporter
D&O Date
CircuiULead Case No.
Brief Filed/Status
Argument
Judgment
Everolades Colleae Inc.
12-CA-096026
363 NLRB No. 73
12123/2015 11th Cir. 16-10341
7/1/2016
1/24/2017
Samsuna /Joraie Franks
12-CA-145063
363 NLRB No. 105
213/2016 11th Cir. 16-10644
6/10/2016
1124/2017
Cowabunaa Inc.
10-CA-151454
363 NLRB No. 133
2126/2016 11th Cir. 16-10932
01812016
1/24/2017
Victorv Casino Cruises
12-CA-146110
363 NLRB No. 167
4/2212016 11th Cir. 16-15955
Abevance
Bristol Farms
21-CA-103030
364 NLRB No. 34
7/6/2016 D.C. Cir. 16-1247
Abevance
Price-Simms Inc. d/b/a Tovota Sunnvvale
32-CA-136015
363 NLRB No. 52
11/30/2015 D.C. Cir. 15-1457
5/27/2016 NIA
.
Havnes Bide.· Servs. LLC
31-CA-093920
363·NLRB No. 125
2123/2016 D.C. Cir. 16-1099
9/13/2016/Abevance
Prime Healthcare Paradise Vallev
21-CA-133761
363 NLRB No. 169
4/2212016 D.C.Cir. 16-1132
Abevance
Labor Readv Southwest Inc.
31-CA-072914
363 NlRB No. 136
2126/2016 D.C.Cir
mms Inc. d/b/a Tovota Sunnvvale
32-CA-136015
363 NLRB No. 52
11/30/2015 D.C. Cir. 15-1457
5/27/2016 NIA
.
Havnes Bide.· Servs. LLC
31-CA-093920
363·NLRB No. 125
2123/2016 D.C. Cir. 16-1099
9/13/2016/Abevance
Prime Healthcare Paradise Vallev
21-CA-133761
363 NLRB No. 169
4/2212016 D.C.Cir. 16-1132
Abevance
Labor Readv Southwest Inc.
31-CA-072914
363 NlRB No. 136
2126/2016 D.C.Cir. 16-1174
Abevance
Adriana/Veronica's Insurance Services Inc.
31-CA-113416
364 NLRB No. 17
5/31/2016 D.C. Cir. 16-1180
Abevance
California Commerce Club Inc.
21-CA-149699
364 NLRB No. 31
6/16/2016 D.C.Cir. 16-1203
Abevance
Grill Conceots Servs. d/b/a The Dailv Grill
31-CA-126475
364 NLRB No. 36
6/30/2016 D.C.Cir. 16-1238
21212017
FIVte i'vlne Wortwide
04-CA-115437
363 NLRB No. 107
214i2016
Fuii Food Prods. Inc.
21-CA-095997
363 NLRB No. 118
2119/2016
Great Lakes Rest. Mr:imt. LLC
03-CA-143665
363 NLRB No. 130
2123/2016
I
Non-Board Case
Supreme
(Board Participating as Amicus)
Appeal From
Circuit
Brief Filed
Argument
Judgment
Court
Morris v. Ernst & Younr:i LLP
N.D. California
9th Cir. 13-16599
11/6/2015 Did not oarticioate
6/2212016
16-300
Lewis v. Eoic Svstems Coro.
W.D. Wisconsin
7th Cir. 15-2997
12116/2015
211212016
5/26/2016
16-285
Patterson v. Ravmours Furniture Co.
S.D. New York
2d Cir. 15-2820
12123/2015
8/17/2016
9/212016
16-366
O'Connor v. Uber Technolooies Inc.
N.D. California
9th Cir. 15-17420
11/212016
Bekele v. L vft
D. Massachusetts
1st Cir. 16-2109
1/26/2017
(as of February 10, 2017)
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