[co-author: Tracey O'Brien]

Memorandum 19-05, issued by the NLRB Division of Operations Management of the Office of the General Counsel in March 2019, gives Regional Directors a new tool to expedite cases when a charged party fails to cooperate with an unfair labor practice (ULP) investigation. Instead of relying on investigative subpoenas to acquire additional information, Regional Directors may issue complaints based on “evidence available.”  The new authorization is designed to reduce case processing time consistent with the General Counsel’s major objectives as described in the December 2018 memorandum, GC 19-02.

Discretionary authority to issue complaint based on party’s lack of cooperation

Under the terms of memorandum 19-05, if a charged party fails to fully cooperate in a ULP administrative investigation, Regional Directors have the discretionary authority to determine 1) whether to issue a complaint based on evidence available, and 2) whether the failure to cooperate is significant. A significant lack of cooperation is described as including a complete failure to respond or a failure or provide “key information.”  It would not include “failures to produce a witness or witnesses where credibility disputes may dictate the issuance of a complaint.”  A determination of a significant lack of cooperation will be factually dependent and may take into consideration the severity of the ULP allegations as well as the impact on commerce.

If the Regional Director determines that a charged party’s failure to cooperate is significant, the board agent will not need to seek an investigative subpoena to acquire the information requested so long as a complaint could be issued based on evidence available. Under such circumstances, the Regional Director may include a footnote after the second sentence of the first paragraph of the complaint noting the significant lack of cooperation as follows:

On (dates), the Region requested that Respondent cooperate in the administrative investigation of the ULP charge(s) conducted prior to issuance of the instant complaint. Respondent failed to fully cooperate in the investigation by refusing to furnish certain documents relevant to the disposition of the charge(s).

Memorandum 19-05 will not affect the issuance of trial subpoenas. Trial subpoenas will still be sought to compel information regardless of the existence of a determination of a significant lack of cooperation to issue the complaint.

Effect of memorandum 19-05 on charged party

The use of investigative subpoenas varies greatly among the Regional Offices. Some use them as a matter of course and others rarely use them.  As always, a charged party must weigh the value of working with the Region to adequately comply with requests for information while also protecting client information that may be sensitive or beyond the scope of the ULP charges against the consequences of having a complaint filed based on a determination of lack of significant cooperation.