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So long, Farewell, Auf Wiedersehen
Many people recognize October 31 for the great tradition of Halloween and the tricks and treats that come with it. This year, the National Labor Relations Board (NLRB) handed out one of the latter as it bid adieu to its controversial General Counsel, Richard Griffin, whose term expired. As this blog has recounted on countless occasions, Griffin spent his term advancing a decidedly pro-labor agenda that upended decades of well-settled areas of the law, making his departure a welcome development.
Mr. Griffin was sworn in as General Counsel of the NLRB in 2013 for a four year term, after previously serving as General Counsel for International Union of Operating Engineers. He wasted little time in his role at the NLRB advancing the interests of organized labor by issuing policy guidance to his field staff and pursuing test cases that allowed the members of the NLRB to overturn precedents to that end.
Some of the noteworthy areas in which Mr. Griffin reshaped labor policy included:
- Promoting the formation of “micro-unions” made possible by the NLRB’s 2011 decision in Specialty Healthcare in which the Board threw out decades of precedent regarding what is an “appropriate” bargaining unit.
- Pursuing a new definition of “joint employer,” which the NLRB did in its controversial 2015 decision Browning Ferris.
- Undermining the use of arbitration agreements under the dubious theory that arbitration agreements violate rights to engage in concerted activity under Section 7 of the National Labor Relations Act, an issue that has gone all the way up to the Supreme Court.
- Attempting to outlaw employers’ commonsense guidelines on employees’ social media communications.
- Waging a war on other commonsense provisions found in employee handbooks.
Fortunately, the president has already nominated a replacement to serve as the NLRB’s General Counsel. The U.S. Senate Committee on Health, Education, Labor, and Pensions approved his pick, Peter Robb, so now the full Senate must act on the nomination. One hopes that will happen soon so that the work to revisit the misguided policies of the Obama administration can begin in earnest.