On August 1, 2018, the General Counsel issued a memorandum requiring Regional Offices of the NLRB to not oppose timely motions to intervene in unfair labor practice hearings by employees who have sought to decertify a union or have circulated a petition that is the basis of an employer's withdrawal of recognition from a union. While Regions have not opposed intervention in every case, they generally have not been receptive to employee intervention or standing at the hearing. This GC Memorandum is a constructive instruction of benefit to employees seeking freedom and independence in the workplace.
The scenarios in which an employee has a sufficiently direct interest in the outcome of unfair labor practice hearing to intervene are:
The Regional Director has dismissed a decertification petition, subject to reinstatement, because the employer is charged with directly tainting the petition's showing of interest, or sponsoring the decertification petition;
The Regional Director is holding the decertification petition in abeyance based on an assertion that the alleged unfair labor practice caused the disaffection that led to the decertification petition being filed (e.g., a blocking charge that the employer engaged in bad faith bargaining); or
The employer has withdrawn recognition based upon reliance on an employee's circulation of an informal petition or other documents demonstrating that the union no longer has the support of the majority of employees.
The GC has also instructed its field attorneys that while they should not oppose intervention, they should reserve the right to object if the intervenor employee unnecessarily prolongs the hearing or impedes the General Counsel from presenting its case. If the Administrative Law Judge denies the motion to intervene, and the employee requests permission to file a special appeal, then Operations Management should be contacted for instruction.
This development is beneficial to employees who seek a union-free workplace, as well as employers who respect their employees' lawful desires. Kudos to PSB Legal's friend and ally, Russ Brown of RWP Labor, who was instrumental in developing persuasive testimony for the April, 2018 hearings on this issue.