On June 17, 2020, National Labor Relations Board General Counsel Peter Robb issued GC Memo 20-08 (“Memo”), providing Regional offices new directives for taking certain witness testimony and accepting audio/video recording evidence in unfair labor practice (“ULP”) investigations.
First, the Memo instructs Regions allow a charged party – in most cases an employer – to be present and observe the “substantive communications” with a former supervisor or agent if that individual is now testifying against the charged party about a contested action, e.g., terminating an employee for union activity. Regional staff is to “apprise the party or its representative in advance of communicating with the individual about the substance of the matter” and afford the charged party the opportunity “to be present for the taking of any affidavit.” This guidance applies even if jurisdictional skip counsel rules would not prohibit communications with the former supervisor or agent. It does not apply, however, if an individual is only a “fact witness” (an inquiry requiring further communications with the NLRB Ethics Office and Operations). Similarly, if a former supervisor or agent has their own counsel, does not want the charged party’s representative present, and/or where the charged party’s attorney wants to participate as more than an observer, the Region should contact the Ethics Office.
Next, and perhaps most significant, this Memo discusses changes to the Board’s standard in accepting and using recording evidence. The NLRB has historically relied on recording evidence – whether or not surreptitiously and/or unlawfully obtained in violation of federal or state wiretap laws or work policies – to investigate and prosecute ULP charges. This often led to employers being blindsided at trial or during settlement negotiations with evidence that they did not know existed nor been given an opportunity to address. Now, pursuant to the Memo, there will be a level of transparency at the investigative stage of a ULP case that never existed before.
New Guidance on Recordings Proffered During ULP Investigations:
- 1) Regional employees – e., Field Examiners and Board attorneys – investigating ULP charges should not receive “recordings they know to have been made without the consent of any participant in the conversation and with an expectation of privacy.”
- Regions should consult with the Ethics Office when this is in doubt.
- 2) Regions will alert charged parties, before making merit determinations, that they possess highly relevant recordings, offer to play the recordings for them, and solicit the charged party’s position on the recordings.
- However, Regions will deny charged party requests for copies of the recordings.
- 3) Regions will advise the individual or party offering the recording, before receiving the actual recording, about the Region’s potential use of the evidence, e., sharing it with the charged party, and put them on notice about the possible breach of any law or work rule that may have occurred in making the recording.
- Individuals will be advised concerning prosecution or civil claim possibilities if the recording was made unlawfully or, if made in violation of a workplace policy, potential adverse employment consequences.
Notably, the Memo does not outright prohibit Regions from accepting a recording that may have been made in violation of a statute or employment policy. Regions may continue accepting such evidence, provided they follow the above-referenced framework so that a “person can make an informed choice as to whether or not to provide a recording to the Region” in the first place.
While some argue that this Memo hamstrings NLRB staffers’ ability to investigate ULP charges, provides a level of “discovery” not allowed under the Act, and may lead to deterring whistleblowers from coming forward, Agency leadership correctly disavows of this criticism. The Memo, as described by an NLRB spokesperson to Bloomberg Law, aims to provide “timely relief for individuals whose rights have been violated … by ensuring that Regions candidly disclose appropriate evidence accumulated during the investigation phase.” Further, in terms of advising those parties or individuals proffering recording evidence, the guidance is “intended to protect them, not to intimidate them.”
In sum, management-side practitioners should rejoice at the changes this Memo brings to NLRB cases. Employers will no longer be surprised with recording evidence they never even knew existed (and possibly illegally obtained) and, generally, ULP investigations will take a more even-handed approach moving forward.
Carlos A. Torrejon is a former NLRB Attorney and an associate in the firm’s Labor and Employment Department, resident in its Morristown office.