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,...
Post a Comment
Read more

San Diego Rolls Back Vaccine Mandate For City Workers

Last Tuesday, the San Diego City Council voted to do away with the vaccine mandate for city employees. The city’s vaccine mandate that was in place required city workers to get the coronavirus vaccine or risk termination.  Perhaps to this surprise of no one, the city’s policy came under fire with 14 employees being terminated and over 100 other employees resigning.  With the coronavirus subsiding, including in Southern California, the San Diego City Council took action. Now, bear in mind, the repeal of the vaccine mandate does not take place immediately. With that being said, the mandate will be repealed March 8th.  I suppose the question now is, what other cities or regions follow San Diego’s lead? For additional information:   https://www.sandiegouniontribune.com/news/politics/story/2023-01-24/san-diego-repeals-controversial-covid-19-vaccine-mandate-citing-drop-in-cases-hospitalizations
Post a Comment
Read more

NLRB: Former Employee Cannot Be Barred From Work Premises After Filing Wage Suit

MEI-GSR Holdings, LLC - NLRB Facts :  MEI-GSR Holdings, LLC d/b/a Grand Sierra Resort & Casino ("GSR") operated a facility that included a hotel, casino, restaurant, clubs, bars, and a pool which were all open to the general public.  Tiffany Sargent ("Sargent") was briefly employed by GSR as a "beverage supervisor" in December of 2012.  After her employment ended, Sargent continued to socialize at one of the clubs.  GSR had a long standing practice of allowing former employees to patronize its facility and did not prohibit Sargent from doing so.  In June of 2013, Sargent and another employee filed a class and collective action against GSR for alleged unpaid wages, in violation of the Fair Labor Standards Act and Nevada law.  In July of 2014, GSR denied Sargent access to an event at one of the clubs.  GSR followed up with a letter and stated that with the on-going litigation (from the wage suit), it decided to bar Sargent from the premises. ...
1 comment
Read more