04/02/2024: Election Directed at USC Student Health Center.
Another application of Specialty Healthcare.
USC Care Medical Group, Inc., 31-RC-320083 (Regional Election Decision). The National Union of Healthcare Workers petitioned for a unit of Medical Assistants (MAs), Licensed Vocational Nurses (LVNs), and Radiology Technologists (Rad Techs) at the Engemann Student Health Center. USC argued that the unit should have 22 more classifications of workers in it and that it should include workers at two other facilities. The Regional Director applied Specialty Healthcare to determine that the petitioned-for unit shared the necessary community of interest and that the additional classifications did not share such an overwhelming community of interest that they must be included in the unit. The Regional Director applied Mercy Sacramento Hospital to conclude that the single-facility unit sought by the union was presumptively appropriate and that USC had not met the heavy burden of overcoming that presumption.
Vibe Consulting, 07-CA-317085 (Advice Memo). The charging party alleged that they were constructively discharged in response to protected activity. The charge was sent to the Division of Advice, which found that neither was true.
One of the interesting things about tracking advice memos is that the NLRB is only required to publish “no go” memos, i.e. memos that direct the regional director not to issue a complaint. “Go” memos, i.e. memos that direct the issuance of a complaint, are not required to be released and rarely are. This means that the advice memos that are released to the public provide a very skewed sense of what is going on at the Division of Advice. Thus, in the advice memo today, we get a little bit of guidance about what is not a constructive discharge. But it is unlikely that an advice memo released to the public would give some guidance on what is a constructive discharge.
Attorneys working inside the agency have access to a database that contains all of the historical advice memos, including the "go” memos the public never sees.
I don't think the second-to-last paragraph is correct. A lot of "go" advice memos are released years after the fact, once the litigation in question wraps up, and it's my understanding that this is the default rule (i.e., it happens unless there's a specific decision made to keep the document nonpublic, perhaps because of some ongoing litigation in some other case). Thus, if you sort the memos on the NLRB website by issuance date, you will invariably see a page full of "no-go" memos, but if you sort them by RELEASE date, you will find plenty of "go" memos.
The post is, however, correct that viewing Advice as producing mostly "no gos" is off base. From personal experience, I'd guess that about 60% of submissions to Advice result in a "go," maybe even as high as two-thirds-- definitely distinctly more than half. For discretionary submissions, it's higher still-- maybe closer to 80%. My theory is that regional offices who view a case as an easy dismissal will not bother to put the work in to write the case up as an Advice submission unless they absolutely have to (e.g. because it raises some issue that the GC has designated a mandatory submission), even if it raises interesting unresolved legal issues.