Skip to main content

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

Comments

Post a Comment

Popular posts from this blog

NLRB: Discussion Among Employees About Tip Pooling is Protected Concerted Activity

  This Advice Memorandum from the National Labor Relations Board’s Associate General Counsel, Jayme Sophir, addressed whether employees which discussed and complained about tip pooling at work constituted protected concerted activity. In relevant part, an employer in New York operated a chain of steakhouses.  While tip pooling was in place at these steakhouses, some of the employees objected to it on the grounds that it was not transparent and improperly divided tips among the workers.  Employees were told not to complain or talk to each other about the tip pool and were told that doing so would endanger their jobs.  Despite the employer later attempting to provide some clarity as to how the tips were being divided, rancor still existed among some employees.  At one point, the employees were told by a general manager that some employees that had been talking about the tip pool were “cleared out” and the employer would continue to do so. In the Advice Memorandum, it was noted that emplo
Post a Comment
Read more

What I’ve Been Reading This Week

A few years ago, I remember when the “Fight for $15” movement was taking off around the country.  Lo and behold, it appears that a $15/hour minimum wage is not the stopping point, which should be no surprise.  As the below article notes, New York is aggressively moving to ramp up hourly wage rates even higher.  While all the  below articles are worth a read, I called particular attention to that one. As always, below are a couple article that caught my eye this week. Disney World Workers Reject Latest Contract Offer Late last week, it was announced that workers at Disney World had rejected the most recent contract offer from the company, calling on their employer to do better.  As Brooks Barnes at The New York Times writes, the unions that represent about 32,000 workers at Disney World reported their members resoundingly rejected the 5 year contract offer which would have seen workers receive a 10% raise and retroactive increased back pay.  While Disney’s offer would have increased pa
Post a Comment
Read more

Utah Non-Compete Bill Falters in House

Last month, a non-compete bill sponsored by Representative Brian Greene (Republican from Pleasant Grove) & up for vote in the Utah House failed to make it through the Legislature.  The bill sought to ban enforcement of non-competes if they came after a worker was already employed, given no compensation (such as a bonus or promotion) for signing the non-compete, and laid off within six months.  However, by a 22 - 49 vote, the bill was resoundingly defeated after some business groups lobbied to kill the non-compete bill.  One group in particular, The Free Enterprise Utah coalition, argued that the Utah State Legislature should hold off on any changes to non compete laws in the state until a survey about non competes was done among Utah businesses.  Representative Greene had countered this claim and argued that a survey was not needed to show that the current non compete laws in the states allowed many businesses, including some small high tech companies in the state, to per
Post a Comment
Read more