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The saga of Scabby the Rat continues with the
transition of the Biden administration and the recent unceremonious
ouster of now-former General Counsel Robb. The debate focuses on
whether the presence of Scabby, the large inflatable rat, and large
banners at the site of a neutral secondary employer constitute
lawful secondary protest activity or is unlawful picketing or
coercive conduct.
In
International Union of Operating Engineers, Local
Union 150 (
Lippert Components, Inc.), the union
erected a large, inflatable rat and two stationary banners at the
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As vaccines are rolled out nationwide and are available to any adult who wants one, we appear on the cusp of a return to some level of normalcy. With that return to normalcy will come an increased focus on non-pandemic-related labor and employment issues. Between the pandemic and the new administration, changes in priority and enforcement are inevitable. While not intended to be a deep dive into these issues, this list of hot topics is intended to put these issues on your radar.
1) Increased OSHA investigations and enforcement - As noted in Mark Heath s article in
Thursday, May 6, 2021
The National Labor Relations Board issued an order on April 20, 2021, in which it declined to rule on whether the agency’s acting general counsel, Peter Sung Ohr, was legally appointed. Shortly after President Biden took office, he terminated the Board’s prior General Counsel Peter Robb after Robb refused to resign. Robb was serving the last year of a statutory four-year term when he was fired. Biden replaced Robb with Peter Sung Ohr, who is currently serving as the acting general counsel while Biden’s permanent appointment, Jennifer Abruzzo, awaits Senate confirmation.
Robb’s abrupt departure sparked a series of legal challenges before the Board, as challengers argued that President Biden fired Robb illegally and thus his appointment of a successor is invalid. The National Labor Relations Act defines the conditions in which the President can remove board members, but is silent on whether the President can remove the general counsel. Those
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On March 30, 2021, the Office of General Counsel of the National Labor Relation Board (“NLRB” or “Board”) released an Obama-era
Advice Memorandum, originally prepared in 2016, opining that racially charged comments were protected concerted activity. Just one day later, on March 31, 2021, Acting General Counsel Peter Sung Ohr affirmed in his latest
st Memorandum”) his plan to pursue a broadening of employees’ protections under Section 7 of the National Labor Relations Act (“NLRA” or “Act”)
beyond concerted activities relating to union activity and labor organizing, for example, by expanding the Board’s traditional view of protected concerted activity to protect employees’ political and social justice advocacy activities under Section 7. These publications are a harbinger of the enforcement priorities of the General Counsel under the Biden administration.