On February 25, 2014, National Labor Relations Board General Counsel Richard F. Griffin issued Memorandum GC 14-01, which provides useful insight into his enforcement priorities.
The memorandum, addressed to all NLRB Regional Directors, Officer's-in-Charge, and Regional Offices, sets forth a list of the types of cases that Regional Offices should submit to the NLRB's Division of Advice for guidance. The cases fall into one of three categories: (1) those involving General Counsel initiatives or particular policy concerns of the General Counsel; (2) those involving difficult legal issues or situations where there is no governing precedent or the law is in flux; and (3) those that have traditionally been submitted to the Division of Advice for guidance.
Included in the first category are cases considering whether a clear successor should have an obligation to bargain with a union before setting initial terms of employment, rather than only in the exceptions enunciated in the Board's Spruce Up decision. Other cases listed in the first category are those involving the issue of whether employees have a Section 7 right to use an employer's e-mail system, cases involving the applicability of Weingarten principles in non-union workplaces, and cases involving a refusal to furnish information related to a relocation or other decision subject to a Dubuque Packing analysis. Additionally, the memorandum asks the Regions to submit to the Division of Advice cases traditionally deferred to arbitration. This includes cases where Collyer deferral may not be appropriate because arbitration has not or will not be conducted within 12 months. It also includes "post-arbitral deferred cases involving 8(a)(1) and (3) violations" and pre-arbitral settled cases. Overall, the cases in this category highlight the General Counsel's willingness to broaden the NLRB's presence and to challenge some existing Board precedent.
Cases in the second category, those that involve difficult legal issues, include cases considering the validity of potential lockouts, "at-will" provisions in handbooks, and mandatory arbitration agreements with a class action prohibition that are not resolved by D.R. Horton or other Board guidance.
The third category, cases that have generally been submitted to the Division of Advice for guidance, includes injunction litigation matters, subpoena authorization issues, and formal settlement agreements that the Region recommends accepting unilaterally.
Memorandum GC 14-01, which sets forth the full list of items on the General Counsel's agenda, is attached here.
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