Earlier this week the Senate confirmed Richard Griffin as NLRB General Counsel. As we have noted previously in greater detail, Griffin’s appointment was controversial, having been unconstitutionally appointed as a Board Member and, to the ire of Republicans, seemingly thumbed his nose and multiple Courts of Appeals which ruled he and the other recess appointments did not have the authority to act.
In an anti-climactic end to several years of NLRB appointment Senate wrangling, Griffin was confirmed Tuesday in a party line vote. He now becomes the first confirmed General Counsel in over three years. He also joins the five now constitutionally confirmed Obama appointments to the Board. Together, the NLRB is now poised to operate at its most efficient and productive level in over a decade. The problem for employers is that Griffin has a history of advancing a very pro-labor agenda.As we noted in August, as the General Counsel Griffin will serve an important policy role in deciding where the prosecutorial direction of the Board. The General Counsel has the final say in whether the Board pursues cases which reverse existing Board precedent, continue recent expansions of Section 7 rights or create entire new theories of employer liability. The recent Boeing controversy as well as the assault on “at-will” agreements, social media policies and similar common sense employer policies are all the result of an aggressive NLRB General Counsel flexing his muscles.
With Griffin’s controvery to such an important position, employers have reason for concern. As if not borne out by the decisions of the Board since he was appointed, Griffin has a long history as a union advocate. For nearly twenty years prior to his 2012 recess appointment to Griffin was employed by the International Union of Operating Engineers as its counsel, rising to serve as the union’s General Counsel and to serve as on the board of directors of the AFL-CIO Lawyers Coordinating Committee. Griffin will now serve as the top prosecutor bringing cases before a Board, the majority of which is comprised of his former union lawyer colleagues.
- Employers should not expect a reversal of course for the Office of the General Counsel as Griffin is likely to continue, if not expand the efforts of Lafe Solomon to broaden the Board’s role in non-union workplaces.
- Union-free employers should dust off their union avoidance programs and redouble their efforts.
- Unionized employers should be prepared for more strident and aggressive unions.
- All employers should review their policies and procedures to ensure they are not susceptible to challenge under the Board’s recent pronouncements.