Rats! NLRB says Unions May Use Scabby the Rat to Target Neutral Employers
The National Labor Relations Board held that a union’s use of a large inflatable rat – infamously known as “Scabby” and standing 12-feet tall with red eyes and claws – and banners targeting a “neutral” employer does not, without more, violate the National Labor Relations Act.
Scabby and other inflatables have been used by unions for decades. Typically, Scabby is raised on public property, and used to protest employers with which unions are having a dispute or even a “neutral” employer that merely does business with the employer that the union finds repugnant. For many years, the debate has raged between Board Republicans and Democrats over whether the use of Scabby is analogous to lawful handbilling or unlawful picketing. Republican General Counsels have taken the position that using inflatables was a symbol of a labor dispute and its display amounted to “signal picketing” (i.e. non-traditional forms of picketing) or other coercive conduct in violation of the NLRA.
In Lippert Components, the Union displayed Scabby and two banners near the public entrance of an Indiana trade show for four days. One of the banners criticized a manufacturer for alleged safety violations, while the other banner criticized a neutral supply company for doing business with the manufacturer. The neutral supply company filed an unfair labor practice charge with the NLRB alleging in relevant part that the Union’s display violated the NLRA’s prohibition on unions from threatening, coercing, or restraining a neutral employer where the objective is for the neutral employer to stop doing business with another entity.
In a 3-1 decision, the Board held that the Union’s conduct did not violate the NLRA, in accordance with the Board’s established precedent holding that displaying banners or an inflatable rat near the entrance of a neutral employer, without something more, does not unlawfully threaten, coerce, or restrain a neutral employer. The majority also agreed that the display did not constitute “signal picketing.”
Many observers expected a majority-Republican Board to utilize this case to overrule the existing precedent, so the decision will come as a surprise to some. However, many also believed that such a decision would encounter turbulence before a circuit court when organized labor raised First Amendment issues. One thing is likely certain, though: unions will be emboldened by this decision, and Scabby (and other inflatables) will continue to be used to target neutral employers.