NLRB General Counsel, Richard F. Griffin, Jr., issued the latest installment of "Mandatory Submissions to the Division of Advice" on March 22, 2016. [ Memorandum] The Memorandum broadly broke down the Board's focus into three categories: priority policy concerns, novel issues, and matters traditionally submitted to the Division of Advice. While the memo contained no surprises, its warnings should be heeded.
As to priority policy concerns, the Board clearly has an eye on technology and continuing its effort to expand its relevance in non-union settings. Griffin's memo calls out cases concerning use of e-mail systems and the application of Purple Communications to electronic systems beyond e-mail. Not surprisingly, the Board also has its eye out for any cases involving the "on‑demand economy" and a related focus on classification of employees as independent contractors in violation of Section 8(a)(1). Beyond that, the Board is also focusing on cases involving "make-whole" remedies for construction industry applicants and challenges to "English‑only" policies. Last but certainly not least, the Board will be looking for cases that may offer the opportunity to expand the application of Weingarten principles in nonunionized settings. Apparently, the Board is also looking for cases that offer the opportunity to argue St. George Warehouse should be overturned
Among the "novel issues" on the Board's radar are issues arising from the application of Alan Ritchey - despite its invalidated status. Also included are cases involving "novel conduct" such as coordinated shopping or involving the legality of lawsuits or the need to harmonize the NLRA with local laws, which are becoming increasingly restrictive in some areas. Again, contractors' rights are a focus along with the legality of allegedly overbroad discovery requests.
As for the "traditional" matters, the focus will continue to be injunction litigation matters and subpoena authorization issues.
You've been warned.
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