Labor & Employment Law Daily NLRB invites briefing on whether ‘Scabby the Rat’ should be forcibly retired
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Monday, November 2, 2020

NLRB invites briefing on whether ‘Scabby the Rat’ should be forcibly retired

By Pamela Wolf, J.D.

“Like the pied piper of Hamelin, the General Counsel now offers to rid the field of labor relations of a supposed rat problem—yet here, too, following the piper’s lead may result in dire consequences,” wrote dissenting Member McFerran.

The NLRB is inviting parties and amici to submit briefs in International Union of Operating Engineers, Local Union No. 150 (Lippert Components, Inc.) (370 NLRB No. 40), a case in which the Administrative Law Judge found that the union’s stationary display of a 12-foot inflatable rat (aka “Scabby the Rat”) and two large banners on public property did not amount picketing or otherwise coercive non-picketing conduct in violation of Section 8(b)(4) of the NLRA. Chairman Ring and Members Kaplan and Emanuel joined in issuing the notice and invitation, while Member McFerran dissented.

General Counsel challenges ALJ’s findings. In exceptions to the ALJ’s decision, the General Counsel is urging the Board to overrule both Eliason & Knuth and Brandon Regional Medical Center, in which the GC contends that the Board “narrowed the definitions of picketing and coercion, created standards that were ‘vague and imprecise,’ strayed from ‘the dictates of Section 8(b)(4),’ and departed from ‘decades of Board law.’”

According to the GC, the display in International Union of Operating Engineers, Local Union No. 150 of the tall inflatable rat and two large banners was “tantamount to picketing, or constituted otherwise coercive conduct, to unlawfully pressure neutral employers to cease doing business with the primary employer in the labor dispute.”

Dissent to invitation order. “Like the pied piper of Hamelin, the General Counsel now offers to rid the field of labor relations of a supposed rat problem—yet here, too, following the piper’s lead may result in dire consequences,” wrote Member Lauren McFerran in dissent. “The General Counsel asks the Board to overrule precedent, carefully reasoned and rooted firmly in court authority, concluding that the National Labor Relations Act does not prohibit the noncoercive, nondisruptive use of inflatable rats and stationary banners to publicize a labor dispute—and, indeed, that restricting such activity threatens First Amendment rights.”

McFerran warned that if the majority ultimately does as the GC suggests and “adopts his extreme views on banners and rats,” the purposes of the NLRA will not be well served, and “the First Amendment would be in as grave a danger as the unfortunate children of Hamelin.” McFerran said there’s no reason to take even the first step down this road.

Durable, uncontroversial standard. Federal courts have repeatedly affirmed that “unsettling and even offensive speech is not without the protection of the First Amendment,” the dissenting Member observed. Moreover, the Board’s current standard governing such speech has “proven durable and largely uncontroversial.” Since the Board articulated its current standard in the 2010 Eliason decision, the Board has, in at least a dozen decisions, found stationary banners or inflatables to be lawful under Section 8(b)(4). Further, no federal appellate court decision has ever cast doubt on the Eliason standard.

The same is true in Section 10(l) injunction proceedings and Section 303 suits; federal district courts have “repeatedly, uniformly, and correctly rejected the theory that communicating with the public using inflatables and stationary banners, without more, violates Section 8(b)(4),” McFerran said.

Invitation to file briefs. To aid in consideration of the issues, the Board has invited the filing of briefs in order to afford the parties and interested amici the opportunity to address the following questions:

1. Should the Board adhere to, modify, or overrule Eliason & Knuth and Brandon Regional Medical Center?
2. If you believe the Board should alter its standard for determining what conduct constitutes proscribed picketing under Section 8(b)(4), what should the standard be?
3. If you believe the Board should alter its standard for determining what non-picketing conduct is otherwise unlawfully coercive under Section 8(b)(4), what should the standard be?
4. Why would finding that the conduct at issue in this case violated the National Labor Relations Act under any proposed standard not result in a violation of the Respondent’s rights under the First Amendment?

Timeline and briefing restrictions. The briefing timeline is tight. Briefs by the parties and amici not exceeding 25 pages in length and briefs by amici not exceeding 20 pages must be filed with the NLRB in Washington, D.C., on or before November 27, 2020, and December 28, 2020, respectively. The parties may file responsive briefs on or before January 11, 2021, which may not exceed 15 pages in length.

The parties and amici are required to file briefs electronically by going to www.nlrb.gov and clicking on “E-Filing.” If assistance is needed in E-Filing on the agency’s website, contact the Office of the Executive Secretary at 202-273-1940.

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