Employers Beware: New NLRB General Counsel Appears To Set Agenda And Expand Employee And Union Rights

On February 25, the General Counsel for the National Labor Relations Board ("NLRB"), Richard F. Griffin, issued a Memorandum which signals an effort to expand employee and union rights in twelve (12) "initiatives and policy concerns." Employers and counsel should take note.

Griffin was sworn in as General Counsel on November 4, 2013. He is the former General Counsel for the Operating Engineers Union; he previously was a recess appointee to the Board by President Obama. The Memorandum is an indication he will be an activist General Counsel seeking to change the law in these areas. All twelve initiatives are important. Two "initiatives" are of particular note.

The Memorandum sends a message that General Counsel Griffin will likely file complaints against employers who are alleged to have refused Weingarten rights to employees not represented by unions. Weingarten grants an employee the right to have a representative present when the employer reasonably believes an investigative interview could result in discipline. The Board has oscillated on the issue of Weingarten rights for non-union employees since the late 1970s, depending on which party had the majority on the Board. Since 2004, Weingarten rights have been limited to employees represented by a union.

Another important issue contained in the Memorandum is whether employees will have right to use an employ's e-mail system for union-related communications. A Bush Board decision in 2007 held that employers can prohibit union communications on its e-mail system if it applies its rules in a non-discriminatory manner. General Counsel Griffin will apparently seek to change those rules.

As NLRB General Counsel, Mr. Griffin does not make the law. Rather, he is the NLRB's chief prosecutor. The cases he pursues and the theories asserted must be agreed to by the Board. But with three of the five member Board being former union attorneys, General Counsel Griffin is likely to succeed with many of his initiatives.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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