Today’s News & Commentary – July 22, 2021

Yesterday, the U.S. Senate voted 51-50 to confirm Jennifer Abruzzo as General Counsel for the National Labor Relations Board (NLRB), with Vice President Kamala Harris casting the deciding vote.  Abruzzo’s confirmation, preceded Tuesday by an equally divided, party-line vote to end Senate debate on the nominee, marks an end to a bitterly partisan Senate debate over Abruzzo’s appointment, which was only made possible by President Biden’s controversial dismissal of her right-wing Republican predecessor, Peter Robb.  As Tascha previously reported, a federal district court last week held that Robb’s termination was lawful under the National Labor Relations Act (NLRA), GOP protestations notwithstanding.

Also yesterday, the Senate Committee on Health, Education, Labor, and Pensions (HELP) voted to advance two more Biden nominees to the NLRB.  The Committee moved on a 13-9 vote to transfer the Board member nominations of Gwynne Wilcox, a partner at the union-side firm Levy Ratner, and David Prouty, general counsel for Service Employees International Union (SEIU) Local 32BJ, to the full Senate.  Republican Senators Lisa Murkowski (R-AK) and Susan Collins (R-ME) joined with all Democrats on the panel to advance the nominations.  If confirmed, Wilcox and Prouty would put an end to the Board’s current Republican majority, allowing Democrats to reshape federal labor law significantly through administrative rulemaking and adjudication.  At the same time, the Committee failed to vote on the nomination of David Weil to serve for a second time as Administrator of the Department of Labor’s Wage & Hour Division.  Weil, now a professor at Brandeis University, came under heavy criticism from Republicans during hearings for his previous term as division head, when he advanced policies Republicans claims limited franchising and independent contracting.  Democrats cited a “scheduling conflict” as reason for the delay but promised a Committee vote on the nominee “as soon as possible.”

This morning, meanwhile, the Senate HELP Committee is holding a hearing to discuss the Protecting the Right to Organize (PRO) Act (H.R. 842), legislation that would overhaul federal labor law and better enable union organizing.  The bill, which passed the House earlier this year, remains stalled in the Senate.  As William noted, however, Senate budget negotiators announced plans last week to include key provisions of the legislation in Democrats’ upcoming reconciliation package, such as the bill’s civil penalties provisions.  In anticipation of the hearing, Uber and Lyft drivers engaged in a nationwide strike yesterday, demanding passage of the PRO Act along with better pay and working conditions.  Rideshare Drivers United led the action, with rallies in Los Angeles, San Francisco, Boston, Cleveland, Las Vegas, Pittsburgh, Baltimore, and Austin.  In New York, the New York Taxi Workers’ Alliance held an online seminar on the PRO Act in solidarity with the rideshare drivers.  Under the PRO Act, federal labor law would employ a more stringent, three-part “ABC” test to define employee status, expanding organizing protections to rideshare drivers and other gig economy workers currently excluded from the NLRA.

Yesterday was no less active for labor advocates on the administrative side.  In a long-awaited decision, the NLRB ruled 3-1 in Lippert Components Inc., 371 NLRB No. 8 (2021) that unions’ use of Scabby the Rat at protest events does not constitute unlawful coercive speech under the NLRA.  As Marina has written previously, Scabby, a hideous, inflatable rat balloon ranging anywhere between 12 and 25 feet tall, has been deployed at union protest rallies for years and was the subject of a longstanding legal vendetta by former General Counsel Peter Robb, who sought to ban its use.  Those efforts came to an end on Wednesday, with a bipartisan majority dismissing the case. Concurring in the opinion, Chair Lauren McFerran asserted that Board precedent demanded the outcome, arguing that two cases, Carpenters Local 1506, 355 NLRB 797 (2010) and Sheet Metal Workers Local #15, 356 NLRB 1290 (2011), were controlling.  Two Republican Board members, John F. Ring and Marvin E. Kaplan, wrote separately that Scabby’s allowance at protests was necessary in order to avoid possible conflict with the First Amendment, echoing ideas asserted in an amicus brief by the American Civil Liberties Union (ACLU). 

The decision is additionally notable in that the case regarded Scabby’s use in protests targeted at a so-called “neutral” employer.  Under the Taft-Hartley Act, unions are ordinarily banned from engaging in so-called “secondary boycotts” directed at employers only indirectly connected to the labor dispute.  The fact that two Republican Board members cited the First Amendment in limiting the extent of the secondary-boycott ban could carry legal implications extending far beyond Scabby.  Already in the courts, two circuits have ruled that Scabby’s use was protected under the First Amendment, including when targeted at neutral employers.

Also yesterday, a U.S. district court in Nevada granted a rare request by NLRB Region 28 for a temporary injunction against Red Rock Casino, Resort and Spa, ordering interim bargaining and restraining Red Rock from unlawfully suppressing employee organizing.  Employers at the Las Vegas-based hotel allegedly interrogated employees, claimed unionization would be futile, fired pro-union employees, and changed worker benefits on the eve of an NLRB election.  The case, Overstreet v. NP Red Rock, LLC, Case No. 2:20-cv-02351-GMN-VCF, offers a rare example preliminary injunctive relief under Section 10(j) of the NLRA, which empowers the General Counsel to seek injunctions against employers as NLRB administrative proceedings remain ongoing.