NLRB General Counsel Peter Robb issued a Memorandum on June 17th setting forth new guidelines for how Regions conduct unfair labor practice investigations—specifically, how Regions secure the testimony of former supervisors and agents, as well as how to handle audio recordings.  The stated goal of the Memo is to “promote transparency and apply fairness” during the investigatory process.

Testimony of Former Supervisors and Agents and Fact Witnesses during ULP Investigations

First, Regions are instructed to now allow employers or labor organizations to be physically present during a Board interview of a former supervisor or agent when she/he is providing adverse testimony against a party.  The Memo imposes different rules to “actor” witnesses—i.e., supervisors or agents who engaged in behavior alleged to be unlawful in a ULP charge, as opposed to those who are mere fact witnesses, as follows:

  • Actor Witnesses: If an employer’s agent, such as a supervisor, senior executive or manager, engaged in behavior that is alleged to be unlawful (e.g., retaliating against a subordinate because he or she engaged in protected activity under the NLRA) and the agent is testifying against the employer, the Region must inform the employer before it takes that agent’s testimony, and allow the employer to be present during the testimony.  Providing this notice to the employer should be followed regardless of whether the employment/agency relationship between the parties has ended, or whether the relevant “skip counsel” rules—i.e., rules establishing when the Regions may (or may not) directly contact a represented party—permit ex parte
  • Fact Witnesses: If the witness is merely a fact witness (and is not testifying against the employer), the Region need not notify the employer about the upcoming testimony and otherwise involve the employer in the process.

If there exists a question as to whether an individual is an “actor” witness or a “fact” witness, Regions are instructed to contact the NLRB’s Ethics Office and seek guidance on how to proceed before obtaining the individual’s testimony.

Recordings Received by Regions During ULP Investigations

Second, the Memo provides guidance to Regions for handling audio recordings received during investigations, and sets forth three distinct rules:

  • Regions are discouraged from accepting recordings that were made in violation of the Federal Wiretap Act (i.e., without the consent of any of the conversation’s participants). Although the Memo does not flatly prohibit the receipt and use of such recordings, Regions are instructed to advise proffering parties of the potential repercussions of offering potentially unlawful recordings.
  • If a recording is relevant to the ultimate question of whether an employer committed an unfair labor practice, Regions should offer to play the recording for the employer before concluding their investigation; and
  • In such cases, the Region should inform the proffering party of how the Region may use the recording (i.e., playing the recording for the employer, etc.). The Region should also apprise the proffering party of certain risks associated with the recording (i.e., potential prosecution or civil claim if the recording was obtained contrary to law and/or discipline by his or her employer if the recording was made in contravention of a lawful employer work rule or policy).


The General Counsel Memo certainly promotes transparency among the parties during unfair labor practice investigations:  the party offering evidence during an investigation is fully informed of the potential consequences of his or her actions, and the employer is similarly apprised of the evidence offered against it.  This practice departs significantly from prior practice, where the Regions would likely not share information regarding the mere existence of a recording, never mind playing the recording for the charged party.  It appears the aim of the GC’s Memo is to allow all parties to be fully informed.  This may encourage employers who are aware of the existence of an adverse recording to more seriously consider settling the charge as opposed to insisting on litigating only to then find out the existence of an adverse recording.

At the same time, however, the Memo may result in a chilling effect on employees in possession of relevant evidence.  For example, an individual employee may be less inclined to provide a relevant audio recording to the Board after being advised that the recording will be played for the employer or that they may face potential prosecution or be terminated if they obtained the recording in violation of the law or employer policy.

Of course, the new protocol laid out in the Memo represents a significant departure from prior practice.  The short term and long term impact of this Memo remains to be seen.  We will be on the lookout for any additional guidance issued by the NLRB General Counsel, and we will keep you posted on the impact of this Memo.

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Photo of Steven Porzio Steven Porzio

Steven J. Porzio is a partner in the Labor & Employment Law Department and a member of the Labor-Management Relations Group. Steve assists both unionized and union-free clients with a full range of labor and employee relations matters. He represents employers in contract…

Steven J. Porzio is a partner in the Labor & Employment Law Department and a member of the Labor-Management Relations Group. Steve assists both unionized and union-free clients with a full range of labor and employee relations matters. He represents employers in contract negotiations, arbitrations, and representation and unfair labor practice cases before the National Labor Relations Board.

Steve has experience conducting vulnerability assessments and providing management training in union and litigation avoidance, leave management, wage and hour, and hiring and firing practices. He provides strategic and legal advice in certification and decertification elections, union organizing drives, corporate campaigns, picketing and union contract campaigns. Steve has represented employers in a number of different industries, including higher education, health care, construction and manufacturing in successful efforts against unions in election and corporate campaigns.

In addition to his traditional labor law work, Steve assists companies with handbook and personnel policy drafting and review, daily management of employee disciplines and terminations, and general advice and counsel on compliance with federal and state employment laws.

Steve’s litigation experience includes work on matters before state and federal courts, the Equal Employment Opportunity Commission, the Connecticut Commission on Human Rights and Opportunities, the New York State Division of Human Rights and various other administrative agencies. He has litigated matters involving age, race, national origin, gender and disability discrimination, wage and hour, whistleblower and wrongful termination claims.

While attending the Syracuse University College of Law, Steve served as the editor-in-chief of the Syracuse Science and Technology Law Reporter. He also received the Robert F. Koretz scholarship, awarded in recognition of excellence in the study of labor law.

Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.