NLRB Counsel Has Significant Authority but Little Time

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By Hassan A. Kanu

National Labor Relations Board General Counsel Richard Griffin (D) could be a thorn in the side of Republicans who want to undo various Obama-era worker-friendly decisions and policies, but only for a few more months.

Griffin “essentially functions as the prosecutor” in the sense that he decides whether to issue an unfair labor practice charge against an employer, Celine McNicholas, labor counsel for the Economic Policy Institute and former congressional affairs director at the NLRB, told Bloomberg BNA. “He’s selecting the cases that move forward, so that position does have significant power to determine which cases get to the board.”

However, Griffin is unlikely to take actions that would have a substantial influence on labor policy past Oct. 31, the end of his term, even if he were so inclined. There's an informal understanding at the agency that the five-seat board shouldn't overrule precedent without at least three members agreeing. Two open seats are likely to be filled with Republican nominees, and the board currently has one sitting Republican and two Democrats. The transitional state of affairs means it's unlikely Griffin would bring any controversial cases over the next few months.

Griffin is further constrained because he only has five months remaining in his term. Maybe more importantly, the general counsel’s ability to bring an issue to the board for a decision depends on the types of charges that employers, employees and their unions file.

“If you want to change policy decision X, you can’t just make a pronouncement,” Brian Hayes, a former Republican board member, told Bloomberg BNA. “You have to have a case in which that issue has been raised and is properly before the board. Sometimes it’s as simple as what happens to be in the decisional inventory at a particular time,” said Hayes, a shareholder at Ogletree Deakins.

The NLRB declined a request to provide comment for this story.

Republicans Want Substantial Policy Changes

Republicans and the employer community have long complained that the NLRB aggressively pursued pro-worker initiatives under former President Barack Obama. They argued that many of those policies were intended to make union organizing easier.

President Donald Trump has also joined the chorus of criticism. Republicans now have a chance to undo many of those moves, thanks to GOP control of the White House and Congress.

Trump has already replaced the former chairman of the board with a Republican, Philip Miscimarra, and he is expected to give the NLRB a Republican majority by filling the two openings with lawyers William Emanuel and Marvin Kaplan. That would allow the board to potentially reconsider controversial decisions, such as those expanding joint employer liability and recognizing “micro units” of workers for collective bargaining purposes.

Griffin Could Be Roadblock

Griffin isn’t likely to support moves to undo those and other decisions, but his ability to stop them and willingness to exercise that power isn’t clear. The general counsel has broad discretion to dictate which cases get to the board, which in turn helps determine which legal issues the panel considers.

“In the first instance, he gets to define and decide, am I going to find this particular act to be a violation of labor law and under what theory,” Hayes said.

In other words, Griffin has protection from the politics or ideologies of the board members, as well as a significant voice in what issues they are asked to decide. But Griffin “is not the sole gatekeeper,” Hayes said.

“Both parties have a right to review by the board of any decision adverse to them,” Hayes said. If an administrative law judge “decides that the GC’s theory prevails, and it’s contrary to the views of the employer, then the employer has a right to appeal the ALJ’s decision to the board.”

He also can’t keep the board from eventually getting to cases currently winding their way through the NLRB.

“There are already cases in the pipeline that would allow a board with a different composition to make changes in the law,” Zachary Fasman, an employment law partner at Proskauer Rose, told Bloomberg BNA.

A key example is a case involving unfair labor practice charges against McDonald’s USA LLC, alleging that the franchiser is liable as joint employer of workers at franchisee-operated restaurants. That case would allow the new members to modify the board’s expanded interpretation of joint employment.

“It’s not like Griffin can say, ‘I’m not going to continue litigating this case because it might result in a reversal of a policy I favor.’ He has an obligation to do so,” Fasman said.

Constrained by Time, Procedures

Griffin also doesn’t seem to have enough time to push any new or novel legal arguments. That’s because the process of getting cases to the board is a time-consuming one, McNicholas of the Economic Policy Institute said.

NLRB regional offices typically take several months to investigate a new unfair labor practice charge and issue a complaint. That means a new charge likely wouldn’t result in an administrative complaint until near the end of Griffin’s term.

Once Griffin’s term ends, Trump’s nominations will result in a consolidation of the general counsel’s authority as well as the board’s in Republican hands.

“Two new members coming in now can certainly make changes with the cases already before them, but the opportunity is much greater, of course, and the ability expands with a new” Republican general counsel, Fasman said.

To contact the reporter on this story: Hassan A. Kanu in Washington at hkanu@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

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