On February 25, 2014, NLRB General Counsel, Richard F. Griffin, Jr., issued the first General Counsel Memo of the year (GC 14-01) identifying cases that the NLRB’s Regional Directors must refer to the NLRB’s Division of Advice for “centralized consideration” and to “enhance our ability to provide a clear and consistent interpretation of the [National Labor Relations] Act.” The list is divided into three groups, two of which should be of particular concern to employers. The first group includes issues that reflect General Counsel initiatives or areas of the law and labor policy that are of “particular concern” to him. The second group includes what he describes as “difficult legal issues that are relatively rare in any individual Region and issues where there is no governing precedent or the law is in flux.” Finally, the third group includes matters that have traditionally been submitted to the Division of Advice.

Together, the issues listed in the first two groups suggest that General Counsel Griffin’s priorities will be every bit as pro-union as we might expect now that the NLRB itself is dominated by Obama Administration appointees. Of “particular concern” to employers in the first group is the General Counsel’s apparent desire to increase union access to employer email systems, union access to employer financial information in the bargaining process, non-union employee rights to have a representative present at a disciplinary hearing, and the circumstances justifying pre- and post-arbitral deferral. The second category includes cases addressing whether the scope of at-will employee handbook disclaimers violate employee Section 7 rights and cases involving mandatory arbitration agreements with a class action prohibition that are not resolved by D.R. Horton or subsequent Advice memoranda. Not surprisingly, virtually all of the types of cases mentioned in the two groups listed by General Counsel Griffin – a total of 28 – foreshadow a further retreat from Bush-era NLRB doctrine and an expansion of union rights.

Employers will want to pay attention to any future General Counsel memoranda that are issued for guidance on how the Obama Board is going to interpret the National Labor Relations Act. Mr. Griffin’s predecessor, Lafe Solomon, used advice memoranda frequently to guide policy, particularly as it related to social media policies. It appears that Mr. Griffin’s office will be active as well – and that employers often won’t be happy with what he has to say.