Senate Confirms New NLRB General Counsel

On October 29, 2013, the Senate confirmed President Obama's nomination of Richard Griffin to serve as General Counsel to the National Labor Relations Board (NLRB). The NLRB's General Counsel is independent from the five-member Board and is responsible for the investigation and prosecution of unfair labor practice charges and for the general supervision of NLRB field offices. The Senate confirmed the nomination by a vote of 55-44, falling along party lines with one Republican joining Democrats to approve Griffin. This confirmation means the NLRB will have a confirmed General Counsel for the first time since June 2010.

Griffin is familiar to those who have been following the saga involving President Obama's NLRB appointments. Before his nomination as General Counsel, Griffin served a stint as a member of the NLRB under a January 2012 recess appointment. But in January 2013, the U.S. Court of Appeals for the D.C. Circuit determined that Griffin's recess appointment was unconstitutional. Following this decision, President Obama renominated Griffin to a seat on the NLRB, but the Senate never confirmed him to that post and President Obama ultimately withdrew his nomination. Before his appointments, Griffin was a lawyer for labor unions, including the AFL-CIO and the International Union of Operating Engineers.

The NLRB now has a full slate of five members, with three Democrats and two Republicans, and a Democratic General Counsel. Since the General Counsel determines which cases to prosecute, it is likely that the General Counsel and Regional Offices will pursue cases that give the Board the opportunity to continue to expand the scope of protected union and employee rights under the National Labor Relations Act. In particular, employers should expect to continue to see more activity from the Board related to rules, policies and practices that impact non-union employees and their ability to engage in protected concerted activity.

Stay tuned, as we will keep you updated on any further NLRB developments. In the meantime, if you have questions about how this development affects your business, contact any of Faegre Baker Daniels' labor and employment lawyers.