NLRB General Counsel Stakes Out an Aggressive Agenda

By Stephen R. McCutcheon, Jr., Attorney at Law

The National Labor Relations Board has regional offices throughout the United States, with its headquarters in Washington, D.C.  Power is generally delegated to the regional offices which conduct elections, and investigate claims of unfair labor practices.  On February 25, 2014, NLRB General Counsel Richard Griffin issued a memorandum reflecting an effort to coordinate activities in the Washington, D. C. office, and pursue an aggressive assertion of NLRB power in a variety of areas.

This memorandum indicates that the NLRB intends to aggressively pursue its agenda through the modification or overturning of precedent rather than the rulemaking process.  The General Counsel has highlighted a lengthy four page list of topics that are to be coordinated with the General Counsel’s office before taking action.  This includes anything that is “of particular concern” to the General Counsel, areas where cases are rare, or there is no governing precedent.

The following are highlights from the four pages of topics that must be cleared before the regional offices take action:

  • Cases involving whether a successor has a duty to bargain with the union.
  • Permanent replacement of economic strikers.
  • Whether employees have a right to use their employer’s e-mail system for organizing activities.
  • Cases involving the applicability of Weingarten principles in non-unionized workplaces.
  • Unilateral discipline of employees.
  • Cases involving whether disruptive activities such as the use of mob shopping, loudspeakers, or corporate campaigns are lawful.
  • Particular cases involving at-will employment.
  • Particular cases involving “neutrality” or “card check” agreements.
  • Cases involving arbitration agreements requiring individual arbitration of claims.

This push for modification of precedent through the adjudicatory process, rather than rulemaking, is emblematic of the problem of the NLRB’s flip-flopping with each change of administration, and fosters the politicization and disrespect for the agency.  This use of adjudicatory processes does not allow for the public participation that rulemaking provides, undermines the stability of the NLRA and its enforcement, and will foster litigation.

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