For the first time in a decade, the National Labor Relations Board is operating with a full slate of five members. But Congress still needs to confirm—or not—a general counsel to enforce the board’s agenda. On August 1, the Obama administration quietly nominated Richard Griffin, former union attorney and NLRB member (by recess appointment). We should all take note—as NLRB GC, Griffin would wield the authority to reshape the legal landscape for union and non-union employers alike.
If Griffin’s name sounds familiar, it should. President Barack Obama recently withdrew his nomination from the board to placate Congressional Republicans. Now, Griffin has resurfaced as the GC nominee without the fanfare that swirled around him as a board candidate. The GC nominee never gets as much attention, but he (or she) should. The GC has the power to make things extremely uncomfortable for employers, regardless of whether they are operating in a union setting.
Deemed independent from the five-member board, the NLRB GC is responsible for overseeing a vast network of 34 regional offices charged with investigating and prosecuting dozens of unfair labor practice charges filed each and every day. In that capacity, he has broad subpoena power and is authorized not only to issue complaints, but to draw upon the vast authority of the federal courts by pursuing injunctive relief and enforcement orders.
For proof of the power of the GC office, look no farther than the legacy of Lafe Solomon, who was acting NLRB GC for three years (despite failing to win Senate confirmation). Solomon made the NLRB a center of controversy by advancing a complaint against Boeing for establishing a non-union assembly line in the right-to-work state of South Carolina. More recently, he shifted focus onto non-union employers through intensive scrutiny of social media policies, confidentiality provisions, access rules, and other written procedures.
It may seem premature to gauge how Griffin might exercise his newfound authority (assuming he is confirmed). However, we do have the benefit of reviewing his body of work as a board member. His record over the past 18 months suggests a distinct predilection toward the rights of organized labor. That should come as no surprise, given his union background.
Before assuming his recess appointment, Griffin last served in a neutral capacity as an NLRB staff member back in 1983. Since then, however, he has held a variety of positions with the International Union of Operating Engineers, ultimately assuming the role of its general counsel in 1994, while also serving on the board of directors for the AFL-CIO’s lawyers coordinating committee.
The NLRB has typically shied away from those who spend their entire substantive careers in-house within either the labor or business community. With nearly 30 years of continual immersion in the labor movement, Griffin’s experience stands in stark contrast to that of his predecessor, Solomon, who previously occupied a variety of internal positions with the agency dating back to 1972, when he began his career as a field examiner.
Given Griffin’s track record before and since arriving at the NLRB, one would expect his nomination to be met with resistance by Republican senators who retain the power of filibuster. Should that happen, yet another showdown would await an agency that has been embroiled in political controversy in recent years. However, Griffin’s nomination could conceivably pass through the Senate unscathed—if it was an unspoken part of the broader deal that gave rise to his withdrawn nomination for another board term. An unopposed GC nomination on the Senate floor would certainly lend credence to that theory.
Regardless of the Republican response, there is nothing to preclude the administration from simply appointing Griffin to serve as acting general counsel (as it did with Solomon). When viewed in that light, the White House seemingly holds all the cards, including the prospect of continued authority for Solomon so long as Republicans attempt to hold up Griffin’s nomination as his replacement.