NLRB General Counsel Draws His Roadmap for the Future in the Area of Labor and Employment

November 5, 2014

As I write this, Americans are going to the polls in the 2014 midterm elections. For months leading up to this day, pundits have speculated about what lies ahead in the event that Republicans take back the Senate. But irrespective of whether the Senate changes hands in this election, one arm of the government is poised to continue doing what it has been doing for several years. That agency is the National Labor Relations Board (“NLRB”).

It matters not whether the reader has a pro-union or pro-employer perspective. The following discussion of the NLRB’s intended path for the remainder of the Obama Administration comes from the writings of the NLRB’s own General Counsel, Robert H. Griffin, Jr. To appreciate the significance of what he wrote, it helps to understand the importance of his position within the NLRB framework.   The NLRB General Counsel is appointed by the President. This position is akin to the chief prosecutor before the NLRB. He has authority to decide which cases are prosecuted before the NLRB, and his decisions are not reviewable by the courts. Mr. Griffin served as a member of the NLRB, appointed by President Obama. He formerly was general counsel of the Operating Engineers union. 

This past February, General Counsel Griffin published a memorandum that required the NLRB’s key officers to submit certain issues to the NLRB’s Washington, D.C., headquarters for “centralized consideration.”  It is not unusual for the General Counsel to issue such a memo, as others before him have done the same.   It is nevertheless a most interesting read, for it provides a virtual roadmap of where the General Counsel desires to steer the agency in the future. For this reason, employers and unions should pay close attention to it. 

The memorandum is five single-spaced pages long. Here are some of its highlights.

  • Use of employer e-mail systems for union organizing. In its 2007 Register Guard case, the NLRB issued a “discrimination standard” under which it found no violation of law in an employer’s disciplining of an employee for use of the employer’s email system to organize a union. The D.C. Circuit Court of Appeals later reversed the NLRB’s decision, but the 2007 decision remains the settled law. The General Counsel is looking for cases “…that involve the issue of whether employees have a Section 7 right to use an employer’s e-mail system or that require application of the discrimination standard enunciated in Register Guard….”
  • Weingarten rights. In 1975, the U.S. Supreme Court held that a unionized employee had the right to have a union steward present during an investigatory interview that the employee reasonably believed could result in discipline. The NLRB has, at times, applied this ruling to non-union settings. The General Counsel is looking for cases “…involving the applicability of Weingarten principles in non-unionized settings….”
  • Pre-recognition bargaining by successor companies. As an employer, have you ever met with a union representing the employees of a company that you had not yet committed to acquire? The General Counsel is looking for cases “…involving pre-recognition bargaining by a prospective successor with an incumbent union.” This is only one aspect of successorship cases in which the General Counsel is interested.
  • Permanent replacement of economic strikers. Since 1964, the NLRB has held that an employer’s motive for replacement of economic strikers is irrelevant, absent evidence of an independent unlawful purpose. The General Counsel is looking for a case where an employer may have had “…an unlawful motive…” for the permanent replacement of economic strikers.
  • Claiming at the bargaining table an inability to compete. Claiming an inability to compete may be different than claiming an inability to pay. But such claims are often met with Union requests for information substantiating same. The General Counsel is looking for cases where employers refused to provide substantiating competitive information. 
  • Refusal to provide information in relocation cases. Under the NLRB’s DuBuque Packing case, an employer is not required to bargain over a relocation decision or provide requested information if the union could not have offered labor cost concessions sufficient to alter the employer’s decision. The General Counsel cited a dissenting opinion in another case written by former NLRB member Wilma Liebman, who advocated a requirement to provide information where there was a “reasonable likelihood that labor-cost concessions might affect the decision.” The General Counsel is looking for a case in which the employer refused to provide such information. 
  • Partial Lockouts. Locking out some, but not all, of the employees in a bargaining unit is considered a “partial” lockout. The General Counsel is looking for partial lockout cases in which he can litigate their “..validity….” 

These are but a few of the issues the General Counsel is interested in litigating before the NLRB. Employers and unions should take this into consideration before choosing any of these paths.


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