Once a little-known federal agency, the National Labor Relations Board has emerged under President Obama as one of the key arms of his economic agenda and a major thorn in the side of big business.
While the board, which is charged with enforcing federal labor law, has five members, the person leading the charge is its general counsel, Richard Griffin. Under his direction it has worked aggressively not just to press cases but also to rewrite rules and expand its authority – always in ways that benefit union organizing.
“The general counsel is the chief administrative officer of the agency. There are approximately 1,610 people who work for the National Labor Relations Board and 1,540 of them report directly to me,” Griffin said in a rare speech last year to West Virginia University law students.
The board’s lawyers have begun major labor rights violation cases against Walmart and McDonald’s, long targets of union organizing campaigns. The latter has particularly alarmed businesses because of its potentially far-reaching implications for franchising.
Griffin has worked to expand the board’s definition of employer to make companies liable even in cases in which they don’t hire or pay the workers in question. He has said the board will prosecute employers who fire illegal immigrants involved in union activity and will “facilitate” visas for those workers.
He has issued notices expanding the union activities that employees can engage in while on the job and pushed the board to issue a rule obligating companies to let employees use company email for union organizing.
Wilma Liebman, one of President Bill Clinton’s appointees to the board and the first chairman under Obama, has high praise for Griffin. “Mr. Griffin is highly knowledgeable and experienced in labor law … [and] completely committed to the values and protections of the nation’s labor law and its fair enforcement, very hard working and totally dedicated to his responsibilities,” she told the Washington Examiner.
For business, he is a perpetual source of heartburn. A lobbyist for a major business trade association says the board is one of two federal agencies that spark the most complaints from his members, which wasn’t the case a few years ago. The Equal Employment Opportunity Commission is the other.
Lobbyists won’t talk on the record. As one pointed out, no matter what they think of him, they still have to work with him. Griffin’s term runs through November 2017.
Griffin declined to talk with the Examiner. “The general counsel’s schedule will not permit an interview,” said board spokeswoman Jessica Kahanek.
A graduate of Northeastern University School of Law, Griffin started his legal career as a staff attorney for the board in 1981. He left in 1983 and spent the next 28 years as an attorney for the International Union of Operating Engineers, eventually becoming its top lawyer. He also served on the board of directors for the AFL-CIO Lawyers Coordinating Committee.
“My combination of work experiences — as an NLRB staff attorney, as a union lawyer and as the general counsel of a mid-sized enterprise [i.e., the Operating Engineers] — give me a useful and, I believe, fairly unique perspective on the cases coming before the board,” Griffin told a congressional panel in 2013.
Obama nominated him in December 2011 to fill an open seat. Union leaders heavily pressured Obama to give the board a pro-labor majority. The president decided to circumvent the Senate, recess-appointing Griffin and two others on Jan. 4, 2012.
“We can’t wait to get the economy going again,” Obama said.
The move was controversial, and the following year a federal court declared the nominations unconstitutional, which the Supreme Court affirmed. Griffin’s tenure was effectively voided.
Obama attempted to get him a proper Senate appointment in 2013 but Republicans initially balked. An eventual deal had the GOP allowing votes on a full slate of five board nominees but without Griffin and another recess appointee, Sharon Block. The following month, Obama nominated Griffin to be general counsel. He sailed through the confirmation process.
“Apparently, the Senate seemed to think that while I was inappropriate for confirmation as board member, I was perfectly fine to be confirmed as the general counsel,” a bemused Griffin told the West Virginia University students.
If Republicans thought they were demoting Griffin, they didn’t understand how the board worked. While its five members have the ultimate say, the general counsel effectively runs it.
It was, for example, Griffin’s predecessor as general counsel, Lafe Solomon, who initiated the board’s controversial complaint in 2011 against Boeing. The board charged that the airplane manufacturer’s expansion into South Carolina, a right-to-work state, amounted to retaliation against the union that represented its Seattle-area workers. The board members had little to do with the case, which was withdrawn when Boeing settled with its union.
Griffin has been similarly inventive, finding legal gray areas and using them to expand the agency’s reach, says James Sherk, labor policy expert for the conservative Heritage Foundation.
“He has acted exactly as you would expect the general counsel of the Operating Engineers to act when put in charge of the NLRB. He has turned the agency from being an umpire arbitrating disputes between businesses and unions into a player in the game rewriting the rulebook to help unions organize,” Sherk said.
For several decades, it had been board policy that franchising corporations were legally separate entities from the franchises themselves, since the latter were privately owned and did their own hiring and firing. Griffin changed that in July, authorizing complaints against McDonald’s Corp. that named it as a “joint employer” and therefore legally liable for any labor violations at its thousands of franchises.
He has not explained his legal rationale, but in his West Virginia University speech Griffin gave several hints. He argued that the proper standard for being a joint employer should not be “direct” control over the workers — the previous standard — just “potential” control.
He conceded that “we have a problem, legally, for our theory,” because the board has long recognized that franchisers can be involved in the operation of a franchise without being joint employers because they have a duty to protect the corporate brand. But he argued technology had changed that.
“They have programs that run an algorithm that say once these costs get to a certain percentage of these costs, you have got to start sending people home. Now, that type of involvement in the hour and terms and conditions, we argue, goes beyond protecting the brand,” Griffin said.
If he prevails, it would vastly expand the legal liability that franchising corporations face. Critics such as Sherk note that it would make labor organizing at the companies vastly easier by giving unions one big target for their campaigns rather than forcing them to do it one franchise at a time.
Business groups claim to be confident that they will win in court. Lawyers and lobbyists argue it is indicative of Griffin’s approach: Be aggressive, be bold and push the legal envelope.
Griffin came up with a similarly novel solution to problems in prosecuting labor rights cases involving illegal immigrants. In a February legal guidance, Griffin said the board would “facilitate” getting the immigrants special visas — originally intended for victims of trafficking cases — by certifying to the Department of Homeland Security the workers are needed as witnesses in labor violation cases.
No issue appears to be too small. Just last month, Griffin issued a guidance on employee handbooks, warning companies that they can violate labor law by including: language prohibiting certain employee conduct, prohibiting interaction with third parties, restricting use of company logo and trademarks, prohibiting photography and recording, and even insisting on conflict of interest rules. Nonunion companies are now scrambling to rewrite their manuals.
“Historically it has been unusual for the board to pay much attention to nonunion companies’ work rules or employee handbooks. That is no longer the case,” noted Howard Kurman, a Baltimore management-side lawyer.
