By Patrick Scully
NLRB General Counsel Peter B. Robb has made a first and lasting impression with his initial Memorandum describing Mandatory Submissions to Advice. General Counsel Robb announced his intent to review, through the Division of Advice, new cases involving issues that the Obama-appointed NLRB regularly prosecuted as unfair labor practices. Among other matters, GC Robb will review cases: where vulgar, obscene, or racist conduct/statements were declared to be “protected concerted activity;” where innocuous employer rules were declared unlawful (including confidentiality rules, rules prohibiting disrespectful conduct, etc.); arising under Purple Communications; involving alleged joint employers, requesting an expansion of employees’ Weingarten rights; involving off-duty access to employer property; concerning expansion of successorship; and involving expanded remedies. In short, it appears that GC Robb will be reviewing (and potentially reversing course on) every ‘hot button’ issue prosecuted by his predecessor Richard Griffith. Additionally, Mr. Robb announced the rescinding of prior GC Memoranda and novel legal theories advanced by the former General Counsel. For instance, GC Robb rescinded the Memorandum regarding unlawful employer rules, the Memorandum requiring “default language” in Board settlement agreements, and the model briefing instructions on partial/intermittent strike cases. GC Robb also instructed the Regions to cease seeking to extend the Purple decision to other electronic systems, cease arguing that “misclassification” of employees is an unfair labor practice, and cease trying to further curtail employer free speech in union organizing campaigns. While the General Counsel’s announcement will not affect an immediate change in the law, it is a very good sign for employers who have been suffering under the heightened scrutiny of Mr. Robb’s predecessor. The full list of GC Robb’s initiatives is set forth in the Memorandum (link below). Memorandum GC 18-02 (December 1, 2017).