For the first time in a decade, the National Labor Relations Board is operating with a full slate of five members. But Congress still needs to confirm—or not—a general counsel to enforce the board’s agenda. On August 1, the Obama administration quietly nominated Richard Griffin, former union attorney and NLRB member (by recess appointment). We should all take note—as NLRB GC, Griffin would wield the authority to reshape the legal landscape for union and non-union employers alike.
If Griffin’s name sounds familiar, it should. President Barack Obama recently withdrew his nomination from the board to placate Congressional Republicans. Now, Griffin has resurfaced as the GC nominee without the fanfare that swirled around him as a board candidate. The GC nominee never gets as much attention, but he (or she) should. The GC has the power to make things extremely uncomfortable for employers, regardless of whether they are operating in a union setting.
Deemed independent from the five-member board, the NLRB GC is responsible for overseeing a vast network of 34 regional offices charged with investigating and prosecuting dozens of unfair labor practice charges filed each and every day. In that capacity, he has broad subpoena power and is authorized not only to issue complaints, but to draw upon the vast authority of the federal courts by pursuing injunctive relief and enforcement orders.
For proof of the power of the GC office, look no farther than the legacy of Lafe Solomon, who was acting NLRB GC for three years (despite failing to win Senate confirmation). Solomon made the NLRB a center of controversy by advancing a complaint against Boeing for establishing a non-union assembly line in the right-to-work state of South Carolina. More recently, he shifted focus onto non-union employers through intensive scrutiny of social media policies, confidentiality provisions, access rules, and other written procedures.
It may seem premature to gauge how Griffin might exercise his newfound authority (assuming he is confirmed). However, we do have the benefit of reviewing his body of work as a board member. His record over the past 18 months suggests a distinct predilection toward the rights of organized labor. That should come as no surprise, given his union background.
Before assuming his recess appointment, Griffin last served in a neutral capacity as an NLRB staff member back in 1983. Since then, however, he has held a variety of positions with the International Union of Operating Engineers, ultimately assuming the role of its general counsel in 1994, while also serving on the board of directors for the AFL-CIO’s lawyers coordinating committee.
The NLRB has typically shied away from those who spend their entire substantive careers in-house within either the labor or business community. With nearly 30 years of continual immersion in the labor movement, Griffin’s experience stands in stark contrast to that of his predecessor, Solomon, who previously occupied a variety of internal positions with the agency dating back to 1972, when he began his career as a field examiner.
Given Griffin’s track record before and since arriving at the NLRB, one would expect his nomination to be met with resistance by Republican senators who retain the power of filibuster. Should that happen, yet another showdown would await an agency that has been embroiled in political controversy in recent years. However, Griffin’s nomination could conceivably pass through the Senate unscathed—if it was an unspoken part of the broader deal that gave rise to his withdrawn nomination for another board term. An unopposed GC nomination on the Senate floor would certainly lend credence to that theory.
Regardless of the Republican response, there is nothing to preclude the administration from simply appointing Griffin to serve as acting general counsel (as it did with Solomon). When viewed in that light, the White House seemingly holds all the cards, including the prospect of continued authority for Solomon so long as Republicans attempt to hold up Griffin’s nomination as his replacement.
What Griffin’s Confirmation Would Mean for Businesses
Chances are Griffin would be free to continue advancing the board’s agenda. If you’re already operating in a union environment, expect more pressure to agree to concessions. If you haven’t already appeared before the board, be prepared for that to change if Griffin is confirmed.
It’s no secret that unions are drying up in the U.S., and the NLRB must therefore employ creative means to justify its budget allotments. The agency is leveraging an age-old doctrine—“concerted protected activity,” emanating from Section 7 of the National Labor Relations Act—to widen its authority to include non-union workplaces. The doctrine of concerted protected activity extends protection to all employees (union or non-union) who band together “for mutual aid or protection,” typically by expressing shared concerns over common employment terms and conditions.
The board is leveraging the employee handbook as a vehicle to pursue employers for violations in the following areas: confidentiality (wages/discipline/investigations), electronic communications, complaint policies, class action waivers, dress codes, access rules, social media restrictions, and at-will disclaimers.
Griffin’s supportive and effective presence would encourage unions and individuals to file more charges of unfair labor practices in anticipation of favorable outcomes. More charges means the greater likelihood that employers will wind up in front of the agency defending handbook policies in connection with discharges. Make no mistake about it: The NLRB has the upper hand. Employers may find themselves faced with a Hobson’s choice: give in, or spend vast amounts of time and money defending your company.
The bottom line is that Griffin makes no bones about his allegiance to unions, and as GC he would set the enforcement agenda. His nomination makes it more important now than ever for employers to review their handbook policies and procedures for potential encroachments on Section 7 rights. Long-term policies that may appear entirely innocuous on their face (at-will statements, for example) are more susceptible to agency scrutiny than ever before. Consequently, it is important to apply a comprehensive approach that critically evaluates policy language from the NLRB’s perspective.
Steve Bernstein is a partner in the Tampa office of Fisher & Phillips, a labor and employment law firm that represents management. He can be reached at [email protected].
