For the third time in just about a month, an Administrative Law Judge has expressly questioned the conduct of the National Labor Relations Board’s Office of General Counsel in a decision. In his decision in Copper River of Boiling Springs LLC, JD(ATL)–26–13 (Sept. 25, 2013), Judge Keltner W. Locke found some violations of the National Labor Relations Act, but also dismissed a few discriminatory discharge allegations. In so doing, the judge expressed "concerns" about whether the claims were pursued by the GC against the employer in a "fair" manner.

Judge Locke dismissed one claim that an employee was terminated for union activity — for having engaged in a discussion about smoking on the employer’s property. Regarding a the testimony of a dubious GC witness, the ALJ explained:

the story she told did not implicate Section 7 rights. The words she attributed to Means did not mention the Union or protected activities, and neither did the words she attributed to the server. Moreover, her testimony did not indicate that there was any mention of union activities or that she had recently engaged in any union activities. Nothing about the context would associate the words with the Union or protected activities.

The judge continued, expressing his "concern" with the GC’s decision to add this complaint allegation after commencement of the litigation, but made clear that his disapproval was not merely procedural:

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.

Back on August 29, Judge William Kocol expressed similar concerns in BCI Coca-Cola Bottling of Los Angeles, JD(SF) 43-13 (Aug. 29, 2013). In a terse decision, Judge Kocol criticized the GC for proceeding with a case when the union representing the employees failed to arbitrate the claims — a prerequisite. Regarding the GC’s failure to argue its position on that point, the Judge asserted:

I have repeatedly asked the General Counsel whether he agrees with (a certain point of law) and if not to explain why. The General Counsel has just as consistently refused to do so. For some reason it seems intellectual integrity appears in short supply in this case.

Finally, in Interbake Foods LLC, JD 53-13 (August 30, 2013), Judge Paul Buxbaum chastised the GC’s office for ignoring substantial mitigating evidence and long-standing legal authority in bringing select allegations to trial. The Judge felt compelled to add a distinct section to his decision, explaining:

In our democracy, the Board’s authority ultimately depends on public acceptance, particularly by its constituencies (labor and management) and the lawmakers who oversee its operations. In turn, that support can only be obtained by the balanced, neutral, and practical assessment of the conduct of the parties involved in our cases. This goal is best achieved by a wide-ranging evaluation that rejects rote presumptions and focuses on the objective and dispassionate appraisal of the realities of the workplace.

A fully-confirmed, full sworn Board is now poised to embark upon a renewed activist approach to labor law. Richard Griffin, the President’s pending nominee for General Counsel, is philosophically similarly predisposed to the current Acting General Counsel — whose legally questionable tenure is the subject of these notable express judicial critiques. It will be interesting to see whether during the Senate confirmation process, anyone seeks to explore the extent to which the nominee would seek to continue his predecessor’s approach to prosecution.