As part of what appears to be a regular recent occurrence, another NLRB Administrative Law Judge has issued a decision containing comments critical of the office of the NLRB’s Acting General Counsel. (As you may recall from NLRB and its General Counsel Criticized by Administrative Law Judge, ALJs recently aggressively criticized the Acting General Counsel in two cases.)
In Copper River of Boiling Springs, LLC, 2013 NLRB LEXIS 644 (Sept. 25, 2013), an NLRB Administrative Law Judge criticized the Acting General Counsel in his decision holding a restaurant had violated the NLRA when one of the restaurant’s supervisors asked an employee to keep him informed about a union organizing campaign. The ALJ concluded the Acting General Counsel lacked evidence to establish two employees were fired because of their participation in a union organizing drive and dismissed claims attacking the lawfulness of the restaurant’s work rules.
Regarding the two terminations, the ALJ wrote:
My concern is about fairness, not about whether the allegation meets the notice pleading requirements. It is about a commonsense notion of truth-in-labeling. A can marked ‘beans’ should have at least one bean in it somewhere. Likewise, when the complaint labels a supervisor’s remark a ‘threat to discharge employees for union activities,’ the remark should either have the word ‘union’ in it somewhere or at least include a reasonably recognizable reference to union activities[.]
It is not unusual for ALJs to be critical of the General Counsel’s position. However, it is somewhat unique for several decisions containing aggressive criticism to be issued in such short order. Perhaps this is just a coincidence. Or, perhaps it comes as a result of the Acting General Counsel’s “lame duck” status – Richard Griffin, former Board member and former General Counsel of the International Union of Operating Engineers, has been nominated to succeed Lafe Soloman, the Acting General Counsel.