Just before National Labor Relations Board (NLRB) General Counsel Richard F. Griffin’s term expired on October 31, 2017, Griffin quietly left a parting gift to those who file charges at the agency (usually unions and employees) and the agency’s prosecutors. He left a warning to those named in NLRB charges (usually employers) to preserve evidence at the time they are served with charges.
Griffin led the agency for four years and presided over a number of generally union-friendly changes by litigating cases before a Democratic majority on the agency’s five-member Board. Griffin’s activity slowed after the election of President Donald J. Trump, likely because he understood that the President would soon appoint a majority-Republican Board that would tend to rule against any further changes he proposed. During this “lame duck” period, Griffin found other ways to advance his priorities, including publishing his “prosecutorial position” directly to the public instead of to the Board.
Griffin ultimately did lose the majority-Democrat Board in the last three months of his term, when the Senate confirmed Marvin Kaplan and William Emmanuel to the quasi-judicial panel. The outgoing General Counsel showed no public efforts to further alter the labor laws or agency policies until the second-to-last day of his term.
At that time, the General Counsel issued the new warning in an operational memo from his staff bearing the routine-looking title Changes to [Unfair Labor Practice] Charge and Docket Letters. The memo announced that when one party files an NLRB charge against another, the letters mailed to all involved will now contain the following admonition:
Please be mindful of your obligation to preserve all relevant documents and electronically stored information (ESI) in this case, and to take all steps necessary to avoid the inadvertent loss of information in your possession, custody or control. Relevant information includes, but is not limited to, paper documents and all ESI (e.g. SMS text messages, electronic documents, emails, and any data created by proprietary software tools) related to the above-captioned case.
Until this point, the NLRB had not articulated a clear obligation for all parties to preserve ESI at the point that one party files a charge against another. While the NLRB’s administrative law judges have imposed sanctions on parties that actively destroy critical evidence, and in one recent case criticized McDonald’s for not imposing an early “litigation hold” to prevent routine deletion of electronic records, the Board itself has not developed a clear stance on these issues through its decisions in particular cases (adjudication) or changes to its Rules and Regulations (rulemaking).
It is possible that a court would prevent the NLRB from admonishing parties to preserve evidence without more clarity from the Board about the nature and scope of that obligation. Or, a newly confirmed general counsel might undo these revisions. Regardless, employers should always endeavor to establish litigation holds as soon as they expect they might receive an NLRB charge. Surveillance cameras, email servers and other ESI systems often automatically clear old information. An employer might need that evidence to defend itself, and although the obligation to preserve in NLRB investigations is not yet clear, there is already a significant risk that NLRB judges will sanction employers who fail to do so. General Counsel Griffin’s 11th-hour change to the letter employers receive when served with a charge increases that risk.
Employers facing NLRB charges should take care to follow best practices for ensuring that they preserve evidence relevant to NLRB matters.