New NLRB GC Has Corporate Counsel Guessing

The U.S. Senate Tuesday confirmed Richard Griffin Jr. as the next general counsel of the National Labor Relations Board, and companies and their counsel are waiting to see just how pro-union he will make his office.

“Based on his track record, it is reasonable to expect that Mr. Griffin will be looking for factual situations so he can bring cases to expand on an employee’s Section 7 [of the National Labor Relations Act] rights,” predicted Michael Lotito, co-chair of the workplace policy group at Littler Mendelson’s San Francisco office.

Griffin’s track record includes serving as a member of the NLRB from January 2012 until August 2013, and as a former general counsel and associate GC of the International Union of Operating Engineers.

Lotito said he expects Griffin to follow in the footsteps of NLRB acting general counsel Lafe Solomon and continue extending the reach of the act to the non-union sector. He also thinks Griffin will look for cases that will allow the board to reverse a ruling on worker use of email about concerted activity and to increase access to employer property by unions.

John Meyers, a labor and employment partner in the Atlanta office of Barnes & Thornburg, agrees with that. “This guy [Griffin] is going to set the prosecutorial tone for the office,” Meyers said.

“What we expect is that the protection of concerted activity will bleed over more into the non-union context,” Meyers said. For example, he said, Griffin will probably attack company policies on solicitation that ban people from coming in and lobbying for a union.

He also expects the new GC to look for cases to attack “at will” employment, which is at the pleasure of the employer.

“His other agenda will probably include allowing union elections in faster ways, and expanding the use of an employer’s email system to give unions greater access,” he said, echoing Lotito.

And both men said they expect Griffin to look to again broaden so-called Weingarten rights to allow both union and non-union employees to bring a representative with them into disciplinary meetings with supervisors. Under the previous presidential administration, Weingarten rights were narrowed to include only union employees.

In short, Meyers said, “I expect more cases to be brought, with deeper-dive agency investigations, and more attempts to broaden the rights of employees.”

Lotito said there is one area that he is especially watching: Whether or not Griffin may be more sensitive to employers than his predecessor was.

“As a former general counsel of a union, he [Griffin] had pretty good relationships with employers the union worked with,” Lotito said. “He has a real world view, while Lafe Solomon looked at it more from an academic perspective.”

“Think of the Boeing situation,” Lotito said, referring to a controversial case in which Solomon tried to block The Boeing Company’s move of construction work on a new plane from a unionized plant in Washington State to a non-union plant in South Carolina. Solomon later dropped the case in late 2011 when Boeing reached agreement with a key union.

“Would Mr. Griffin make the same kind of decision? It will be very interesting to see how he approaches [similar situations],” Lotito said.

Technically Solomon is still acting GC until Griffin is sworn in, probably sometime this week, according to Gregory King, director of the NLRB’s office of public affairs. Solomon, a career NLRB lawyer who couldn’t win Senate confirmation, has not yet announced what he will do next.