On October 7, 2009, the National Labor Relations Board’s (“NLRB” or the “Board”) Division of Operations-Management issued Operations Memorandum OM 10-05, amending the agency’s existing guidelines concerning the “skip counsel” issue regarding service of documents and correspondence and when its personnel may directly contact managers and supervisors of represented parties.
The guidelines are important to employers because they summarize the Board’s “policies regarding contacts with parties and witnesses represented by counsel.” The term “skip counsel” refers to the circumstances in which the Board’s attorneys and investigators may, and may not, directly contact an employer’s representatives, employees and former employees, notwithstanding the fact that the company is represented by a lawyer, without going through the lawyer.
The Board’s “skip counsel” rule generally prohibits ex parte contacts with a represented party about the subject matter of the representation absent either (a) consent from the party’s lawyer, or (b) express legal authorization to engage in such direct contacts. Most typically, issues concerning bypassing counsel arise before the NLRB when a party, either an employer or a union, is an organization rather than a person and is represented by counsel. In these situations, the Board’s personnel may only directly contact an individual with whom they want to speak if they first determine that the person and communication falls within one of the categories of persons who are considered to be represented by the organization’s counsel and may not be contacted directly. Persons they may not contact directly include current and former supervisors and agents. There is no such obligation in those cases where the individual that the NLRB wishes to speak with is not a supervisor, manager or otherwise an agent of the employer or union.
The Board’s “skip counsel” policies are based upon the ethical standards that apply to attorneys under the American Bar Association’s Model Rule of Professional Conduct 4.2. Model Rule 4.2 prohibits lawyers from communicating directly with a represented person about the subject of the representation without prior consent from their attorney or legal authorization to do so. The Model Rule states that “[i]n representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or court order.” The “skip counsel” memorandum makes clear that the rule is not limited to NLRB attorneys, but applies to all agency employees.
‘Skip Counsel’ Rule Applies to All Forms of Communications
The “skip counsel” rule applies to all forms of communications. In fact, one of the most significant aspects addressed in Operations Memorandum OM 10-05 is the acknowledgment that the “skip counsel” rule applies not only to in-person contacts but “to all forms of written communications, ranging from informal email to the service of all documents and correspondence.”
The memorandum notes that under Section 11842.3 of the NLRB’s Unfair Labor Practice Casehandling Manual, “when a party or person is represented by an attorney, all documents and correspondence must be addressed to and served exclusively on the attorney unless the attorney has consented to direct contacts with the party or person or has authorized direct service upon the party or person, or unless one of the exceptions applies.” The exceptions contained in the Casehandling Manual as to when documents may be sent directly to a party are those circumstances where there is legal authorization permitting service on the party or person, as well as their attorney. Documents falling within the “exceptions,” and which can be served on both the attorney and directly on a party, include unfair labor practice charges, petitions for representation elections, election notices, final orders and decisions from a regional office, subpoenas, and standard cover letters. However, “substantive cover letters” which convey substantive information or invite a response must be addressed to and served exclusively on the attorney, unless the attorney has consented to service on the party or person.
Documents that do not fall within any of the exceptions and are subject to the “skip counsel” rule include notices for posting pursuant to a settlement agreement, decisions by an Administrative Law Judge, Board Orders, as well as post-complaint litigation documents, such as motions, briefs, and exceptions to an Administrative Law Judge decision. The memorandum makes clear that absent consent or authorization permitting direct contact, “even sending a courtesy copy of a document to a party or person represented by an attorney is impermissible under the skip counsel rules.”
Notably, the “skip counsel” rule only applies when the designated representative of a party or person is an attorney. This can be significant in that the NLRB recognizes the right of non-attorney labor relations consultants to appear on behalf of and represent parties before the agency. Similarly, communications with such non-attorneys may not be protected by the various privileges that protect the confidentiality of attorney-client communications. The agency’s policies regarding service of documents and correspondence when the representative is a non-attorney is set forth in Section 11842 of the Unfair Practice Casehandling Manual. Left unaddressed in General Counsel Memorandum 10-05 is Model Rule 4.3, which concerns what is permissible contact with an unrepresented party or person.
Employers should take steps to minimize the risk of NLRB attorneys and investigators engaging in ex parte communications with their supervisors, managers and other agents. It is most advisable that as soon as any employer becomes aware that an unfair labor practice charge or representation petition has been filed with the NLRB, even before it is formally served, the company’s counsel should immediately submit to the Regional Office a Notice of Appearance and a Notice of Designation of Representative as Agent for Service of Process designating the company’s counsel as its exclusive agent to receive documents.
Equally important, an employer should take steps to ensure that all of those it considers managers and supervisors are aware of their status, the significance of such status and the fact that “skip counsel” rule means that neither the NLRB nor those acting on its behalf should be communicating directly with them and the fact that if they are nonetheless contacted directly by a representative of the NLRB or any other party that they should not speak with them and should tell them to contact the company’s counsel.
The full text of the NLRB’s Memorandum OM 10-05 is available online at the NLRB’s Web site, here.