By Michael Lebowich and Jacklina Len
Last week, on a party-line vote, the Senate approved President Obama's nomination of Richard Griffin to serve as the next National Labor Relations Board general counsel for a full four-year term. Griffin is the former general counsel of the International Union of Operating Engineers and was briefly a recess-appointed NLRB member.
The general counsel position holds significant sway at the board, as that person is responsible for investigating and deciding which labor law violations to prosecute. This ability to decide which cases to bring before the five-member NLRB gives the general counsel primary authority in establishing the board's agenda.
Griffin's confirmation is notable because it marks the first time in over three years that the NRLB's general counsel will act with Senate approval and consent. Griffin's nomination, however, was somewhat surprising since he had been one of the board members whose January 2012 recess appointment was struck down by the D.C. Circuit's Noel Canning ruling (and which is set for review by the Supreme Court this session).
After the decision, Obama renominated Griffin for his NRLB position, but eventually withdraw Griffin based on opposition from Senate Republicans and as part of the overall deal to avoid a dramatic change in the Senate's filibuster rules.
Given his background and his brief tenure as a board member, it is widely believed that Griffin will continue along the path of the long-serving acting general counsel, Lafe Solomon, to overturn pro-management precedent and work to broaden the scope of the NLRB's reach into areas impacting non-union employers, such as social media rules, employee handbook policies, and arbitration class-action waivers.
And, unlike his predecessor, Griffin will be bringing cases to a full board of five confirmed members, a situation that has not existed since 2003. This may lead to an acceleration of decisions on significant cases.
Michael Lebowich is a New York-based partner and co-head of the Labor-Management Relations Group at Proskauer Rose LLP. Jacklina Len is a Los Angeles-based associate in Proskauer's Labor & Employment Law Department, resident in the firm's Los Angeles office.