This past Tuesday, National Labor Relations Board General Counsel Richard F. Griffin issued Memorandum GC 14-01, wherein Griffin outlines matters that Regions must submit to the NLRB's Division of Advice for guidance as to how to proceed. The memorandum is of special interest to employers because it provides important clues as to the General Counsel's prosecutorial priorities going forward. With a full complement of five Board members for the first time in a decade, and with three of those members leaning to the left, it can be surmised that the General Counsel's office will be looking to overturn some established precedent.
Griffin's memo divides the matters to be submitted into three separate groups, the first of which involves "the General Counsel's initiatives or policy concerns." In particular, Griffin's first group includes cases involving whether employees have a Section 7 right under the National Labor Relations Act to make use of an employer's email system. Currently, the Board's Bush era Register Guard decision governs these decisions, holding essentially that employers can issue a blanket-ban on employees using email systems for non-work purposes if that blanket-ban is non-discriminatory and consistently applied. Griffin's "initiatives or policy concerns" also include cases involving the application of so-called Weingarten principles in non-union shops.
Griffin's second grouping of matters to be submitted are cases "that involve difficult legal issues or the absence of clear precedent." Setting aside the fact that the Obama Board has created some of these issues for itself by issuing novel decisions, the biggest issue coming out of the second grouping involves the lawfulness of mandatory arbitration agreements. As the reader may recall, the Board has held since its infamous D.R. Horton decision that arbitration agreements between employers and employees that effectively ban class or collective actions violate employee Section 7 rights. Of note, the Board's holding has not changed despite a near unanimous litany of federal court decisions repudiating D.R. Horton. Griffin has also asked Regions to submit cases involving unilateral discipline to the Division of Advice. These cases stem from the Board's decision in Alan Ritchey, wherein it was held that an employer could only issue unilateral discipline to an employee in "exigent circumstances." Those "exigent circumstances" are currently not well defined, necessitating review by the Division of Advice before a prosecution decision is rendered.
Griffin's last grouping of matters involve cases that have traditionally been submitted to the Division of Advice. These matters include injunction litigation filed under Section 10(j), as well as requests to issue subpoenas after the filing of a complaint.
Griffin's memorandum is a must-read for employers and their in-house counsel, regardless of whether the employer maintains a union presence. The General Counsel will in all likelihood be targeting issues that arise in both union and non-union shops, such as the appropriateness of allowing employees to use employer emails for non-work purposes, as well as whether employees in non-union shops can be represented in an investigatory hearing. While it is uncertain as to whether Griffin will be able to overturn the current jurisprudence regarding these and other issues, it is an odds-on bet that he will certainly try to do so. Accordingly, employers would be wise to educate themselves on what seem to be Griffin's current prosecutorial priorities. Please stayed tuned for updates as developments warrant.