Late last month, the new NLRB General Counsel, Richard Griffin, published a memo (GC 14-01) outlining the matters that the Regions must submit to the NLRB’s Division of Advice for guidance on how to proceed. The memo is of key importance to employers, because it signals those matters that will be an enforcement priority for the agency moving forward.
Of particular note, the memo lists the following two issues:
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Cases involving the applicability of Weingarten principles in non-unionized settings.
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Cases that involve the issue of whether employees have a Section 7 right to use an employer’s e-mail system or that require application of the discrimination standard enunciated in Register Guard.
Why are these two issues important to employers? Because they show that the NLRB continues to look for ways to expand its reach beyond the traditional union/management setting. As I’ve been arguing for years, the NLRB is looking for ways to become relevant to the 93 percent of employees not covered by a collective bargaining agreement. The Board has cornered the market on social media cases, and is now expanding its reach to other issues—the rights of non-union employees to representation in disciplinary meetings, and email solicitation rules.
It is clear that it is going to be an interesting three years under the current iteration of the NLRB. Employers should expect movement on these two issues. Stay tuned.