Today, General Counsel Abruzzo sent a memo to all Regional Directors, Officers-in-Charge, and Resident Officers with an update to her August 2021 memo on her prosecutorial priorities. The new memo provides an updated list of mandatory submissions to the Division of Advice, as well as 46 issue areas that no longer need to be submitted because Regional Offices are diligently utilizing Advice guidance including, where appropriate, filing exceptions to place these issues before the Board. While 17 cases raising many of these issues are currently pending before the Board, Regional Offices are advised to continue to present them to ALJs and the Board at every opportunity.
Following tradition, General Counsel Abruzzo released GC 21-04, Mandatory Submissions to Advice, as her first memo, which identified Board decisions that she believed were contrary to the Agency’s Congressional mandate, as they improperly compromised the statutory rights of workers that the NLRB is required to protect. Many of these decisions overruled prior precedent that had already struck an appropriate balance between the rights of workers and the obligations of unions and employers.
“By including these issues on the mandatory submission list, my goal was to provide transparency to the public,” said General Counsel Abruzzo. “Additionally, placing these issues before the Board for reconsideration is one of my most important objectives as General Counsel. Without doing so, Board law that undermines workers’ statutory rights remains unchallenged, which will continue to detrimentally impact millions of employees throughout the country.”
Since the issuance of the August 2021 memo, the Division of Advice has issued guidance, either in the form of Significant Advice Memoranda or inserts to be used in briefs to Administrative Law Judges and/or the Board, for 46 Board decisions identified in the initial mandatory submission memo and in later General Counsel memos. Regional Offices have processed hundreds of cases involving these issues and have been ensuring that all guidance is properly followed, including, where appropriate, filing exceptions to place these issues before the Board. The Board has addressed these issues in a few cases and seventeen cases raising many these issues are currently pending before them.
Because of the developments in these issue areas, Regional Offices will now be required to submit only 15 of these original issues for guidance—in addition to the other types of cases traditionally submitted to Advice, mandatory Injunction Litigation Branch submissions, and cases involving electronic surveillance or algorithmic management that interferes with the exercise of Section 7 of the National Labor Relations Act.
The memo notes that it does not contain an exhaustive list of issues and that other questions may arise, particularly with respect to the application and interpretation of new Board decisions. It advises Regional Offices to continue to seek guidance from the Division of Advice, as appropriate, to ensure an approach which properly applies the law to maximize protection and enforcement of employee rights under the Act.