Wyatt Employment Law Report

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NLRB General Counsel Reveals Agenda for Change in Board Law

By Edwin S. Hopson

On February 25, 2014, the NLRB’s General Counsel, Richard F. Griffin, Jr., issued a memorandum to Regional Directors and others in the field setting forth mandatory submissions to the Advice Section of the General Counsel’s Office in Washington, D.C.

Many of the matters cited are areas of the law that the new GC (and probably a majority of the Obama Board) wish to change.  The list of matters was divided into three groups.  The first group consisted of cases “that involve General Counsel initiatives or areas of the law and labor policy that are of particular concern to me.”  The other areas involve difficult legal issues or cases where there is no governing precedent.  The final list includes updates regarding case handling that have traditionally been slated for submission to the Advice Section, as outlined in the NLRB Case Handling Manuel.

The first list includes cases involving the applicability of Weingarten principles in non-unionized settings as enunciated in IBM Corp., 341 NLRB 1288 (2004).  Current Board law (established by the Bush Board) only requires application of Weingarten rights to the union setting.  That is, when an employee represented by a union is to be questioned by management, and that questioning could lead to discipline, the employee may request that a representative be present during the questioning.  Previously, the Clinton Board in IBM Corp had expanded the doctrine to the non-union setting.

Thus, it appears that the new GC is going to attempt to change current Board law and will authorize issuance of complaint and require that any case in the non-union setting raising Weingarten issues must be litigated before an Administrative Law Judge and the Board in Washington, D.C. Continue reading