Hunton Employment & Labor Perspectives

On February 25, 2014, National Labor Relations Board (“NLRB” or “the Board”) General Counsel Richard F. Griffin issued Memorandum GC 14-01 to outline the agency’s enforcement priorities for the coming year.  The memorandum, which requires regional offices to submit matters of special interest to the Board’s Division of Advice for guidance on how to proceed, groups those priorities into three categories: (1) matters that involve General Counsel initiatives or areas of law and labor policy that are of particular concern to his office; (2) matters that involve difficult legal issues or areas of law in which governing precedent is unclear; and (3) an updated and expanded list of case-handling matters that have traditionally been submitted to the Division of Advice.

Although the enforcement priorities contained in the memorandum coalesce around familiar themes—the facilitation of union-organizing activity, the empowerment of unions in the bargaining context, and the expansion of the Board’s influence into non-unionized workplaces—the first category of special interest matters is of particular interest because it appears to be a list of areas in which the NLRB is seeking test cases to actively reshape labor law to be more employee-friendly, rather than simply pursue the aggressive enforcement of the law as it currently exists.  As such, many observers have viewed Memorandum GC 14-01 as a show of strength by the Board, which now has a full complement of Senate-confirmed (and Obama-appointed) members for the first time in a decade.

The first category contains several noteworthy enforcement priorities.  First, the memorandum requires the submission to the Division of Advice of any case addressing whether employees have a Section 7 right to use an employer’s e-mail system for non-work related purposes (and by extension, union-organizing purposes).  Current law holds that they do not.  See Register Guard, 351 N.L.R.B. 1110 (2007).  Second, the General Counsel also seeks cases involving the applicability of Weingarten principles—an employee’s right to representation during employer investigative interviews that the employee reasonably believed might lead to discipline—in non-unionized settings, an issue on which there is conflicting precedent.  See IBM Corp., 341 N.L.R.B. 1288 (2004); see also Epilepsy Foundation, 331 N.L.R.B. 676 (2000).  And finally, the General Counsel seeks cases involving an employer’s duty to furnish financial information in bargaining where it has arguably asserted an “inability to pay.”

The second category of the memorandum highlights legal issues that involve conflicting or ambiguous precedent, including cases considering the validity of potential lockouts, “at-will” provisions in handbooks, and mandatory arbitration agreements with a class action prohibition.  The third category simply expands the list of matters that have always been submitted to the Division of Advice for guidance.

Taken as a whole, Memorandum GC 14-01 makes clear that employers should expect the NLRB to continue its aggressive enforcement and expand its presence in the coming years.