The U.S. Senate recently appointed Richard Griffin to be the National Labor Relations Board’s general counsel.  The significance of this appointment should not be overlooked.  The general counsel is the person responsible for investigating and deciding which labor laws to prosecute.  Griffin will therefore have primary authority in establishing the Board’s agenda.  With Griffin’s pro-union background and his brief tenure as a Board member, critics have predicted that Griffin will likely continue to expand the scope of protected union and employee rights under the National Labor Relations Act.   

Last week I attended the American Bar Association Labor & Employment Conference in New Orleans, and had the pleasure of being in the audience while Griffin delivered one of his first public addresses as the Board’s general counsel.  Based on his comments, the predictions appear to be true.  Griffin essentially confirmed that he plans to continue the Board’s reach into areas impacting non-union employers, such as social media rules, employee handbook policies, and arbitration class-action waivers.  

The new general counsel also touted his belief that there has been no fallout from the controversial Specialty Healthcare ruling a few years ago.  This decision adopted a new standard for determining appropriate bargaining units – as long as a union’s petitioned-for unit consists of a clearly identifiable group of employees, the Board will presume the unit is appropriate.  If an employer argues that the unit should include additional employees, the employer must demonstrate that employees in a larger unit share an “overwhelming” community of interest with those in the petitioned-for unit.  Griffin’s comments regarding Specialty Healthcare are disheartening, especially to those manufacturers who have relied on long-standing NLRB precedent that protected the integrity of production and maintenance departments that are functionally integrated operations.  

Manufacturers will therefore need to keep up their union guard.  It is easier to convince 8 employees to vote for the union than 40 or 50, and with Griffin as general counsel for the next four years, unions are armed and ready to make the argument that the smaller group is a clearly identifiable group.  Unions and disgruntled employees also won’t be passing up any opportunity to claim that the company is maintaining unlawful policies that restrict employee rights regardless of whether these employees are unionized.