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NLRB Seeks Briefs on Lawfulness of Scabby the Rat

 

At the end of October, the National Labor Relations Board (“NLRB”) has asked for briefing on the issue of Scabby the Rat and two banners near the entrance of a neutral employer’s worksite.

In essence, for years, unions have used Scabby the Rat (or similar inflatables) on public property near businesses that do business with an employer that is engaged in a labor dispute with a union.  The goal of these inflatables is to pressure the “secondary” employers to stop doing business with the “primary” employer in order to get the “primary” employer to change a particular labor practice.

Section 8(b)(4)(i) of National Labor Relations Act (“NLRA”) prohibits unions (or their agents) from encouraging “secondary” employers from participating in protected activities.  Section 8(b)(4)(ii) protects these “secondary” employers from threats or coercion.  The argument follows, for some, that unions that use inflatables such as Scabby the Rat are in violation of the NLRA.  However, an Administrative Law Judge (“ALJ”) in 2019 issued a decision that found that a union that used a Scabby the Rat inflatable and banners outside a “secondary” employer did not violate the NLRA.  The ALJ referred to two NLRB cases to reach this conclusion:  1) a union that displayed large, stationary banners that shamed the “primary” employer and encouraged the public not to patronize the “secondary” employer was lawful under the NLRA and did not amount to picketing as they were not coercive or confrontational; and 2) an inflatable rat located on public property outside a “secondary” employer was lawful under the NLRA as it was not unlawful picketing or coercive.

However, with this iteration of the NLRB taking a more employer friendly approach, this invitation to have parties submit briefs on the lawfulness of inflatables such as Scabby the Rat might signify that the NLRB might find these sort of displays to be unlawful under the NLRA.  Critics of the ALJ’s ruling argue that inflatables like Scabby the Rat and banners outside a “secondary” employer equate with coercive conduct and classic picketing (and would thus be unlawful under the NLRA.)

Based upon the request for briefs, parties have until December 28th to submit their briefs to the NLRB.  I would expect the NLRB to issue a decision on the matter soon thereafter (likely before the NLRB would take a more labor friendly approach if/when Joe Biden has the opportunity to appoint new NLRB Members.)


For additional information:  https://aboutblaw.com/TS4

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