Prognosticating The New NLRB

I recently discussed the nominees to the NLRB – but at that time they were just nominees. Now, that they are officially Board Members, let’s take a closer look at what we can expect from the fully staffed Board over the next year or so. After all, this is the first time in more than a decade that the Board is fully staffed and we don’t have to worry about any Noel Canning or New Process Steel issues.

My first conclusion is simple: the NLRB is extremely pro-union. Despite supposedly being a neutral federal agency tasked with protecting employees from both employers and unions, this is perhaps the most pro-union NLRB ever. Sort of hard for the Board to be impartial when most of the Members spent their careers advocating on behalf of unions, don’t ya think? As for the two “token” Republicans on the Board, their roles will be relegated to writing dissenting opinions.

In addition to the NLRB Board Members, President Obama also nominated Richard Griffin to serve as the Board’s General Counsel. Yep, the same Richard Griffin who was the General Counsel of the International Union of Operating Engineers and who was nominated as a Board Member just a few short months ago – before he was named as a defendant in a RICO lawsuit for allegedly giving the go-ahead to fire a member of his own union who was about to blow the whistle on a dues skimming operation. Did you follow all that? Well, as General Counsel, he now decides which cases the NLRB prosecutes, and he will help guide the NLRB’s interpretation of labor law. This is a powerful position – just ask his predecessor Leif Solomon who you can thank for the NLRB’s unrelenting prosecution of social media cases.

Here is what employers are likely to see from the new NLRB:

Quickie / Ambush Election Rules

I know, I’ve been harping on this one for a while. This rule was created in December 2011 but not implemented because of a technicality – supposedly the vote to adopt the rule was invalid. I anticipate the new Board to re-vote making sure that the re-vote is proper, and I expect the 3-2 Democratic majority to approve the rule.

Workplace Emails for Non-Job Related Activity

The NLRB under President Bush (staffed with three Republicans) ruled that companies can maintain a policy prohibiting employees from using company email systems for non-job related solicitation, including union organizing. If this is reversed, companies will be forced to allow employees to use company provided computers and Internet access to organize a union whose goals are oftentimes adverse to the company.

Weingarten Rights to Non-Represented Employees

Under President Clinton, the Board held that non-union employees could have someone accompany them during workplace investigations/questioning that could result in discipline. The Bush Board limited the right of accompaniment to only union members. I expect the Obama Board will expand the rule back to non-union employees.

Continued Focus on Non-Union Companies

The previous Obama NLRB aggressively focused on companies without unions by governing at-will statements, social media policies, confidentiality clauses, dress code policies, premises access policies, and disciplinary action. I expect the current Board to continue this practice – or even step up its aggressiveness.

The above expectations are more than guesses. They are rooted in history and are logical extensions of what the Obama Board has tried to accomplish since he was first elected to office. We are stuck with this NLRB until December 2014. Needless to say, the next year and a half will be interesting.

Matt Austin is a Columbus, Ohio lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can always call Matt at 614.843.3041 or email him at