Employment Law Daily NLRB looks to exterminate ‘Scabby the rat’
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Thursday, June 20, 2019

NLRB looks to exterminate ‘Scabby the rat’

By Lisa Milam, J.D.

An NLRB regional director has gone on the offensive to trap “Scabby the rat,” seeking a TRO to bar a union from hoisting the giant inflatable to signal a dispute with an employer.

“Scabby the Rat,” a giant inflatable rodent used by unions when protesting a targeted employer’s labor practices, may soon be trapped.

Often used by unions in the construction industry, in particular, when seeking to put public pressure on general contractors that use nonunion labor, Scabby has been a bane of employers who want to shield contentious labor feuds from public view and also of secondary employers unwittingly caught in the cross-hairs of the PR battle.

Rodent control. There have been numerous efforts to snare the giant rodent: Employers have gone to the Labor Board arguing that Scabby’s presence, usually directly adjacent to company property or the targeted worksite, is impermissibly coercive. Employers have also gone to court in hopes of convincing a judge to order a union to deflate the rat.

Local governments have attempted to control the infestation as well, fearing that the imposing rodent, which can stand as tall as 30 feet, presents an eyesore and a safety risk, particularly when the menacing vermin takes over a public right-of-way. Unions have countered with First Amendment challenges to these local “rodent control” measures, with mixed results.

For example, a unanimous New Jersey Supreme Court invalidated such an ordinance in its 2009 decision in State of New Jersey v. DeAngelo, holding that a Lawrence Township, New Jersey, sign ordinance was a content-based restriction on speech, was unconstitutionally overbroad, and did not advance a compelling governmental interests. In the state high court’s view, there was no evidence an inflatable rat was significantly more harmful to aesthetics or safety than a similar item being displayed as a commercial grand opening advertisement.

Content-neutral ordinance. But recently, the Seventh Circuit upheld a 2014 town ordinance prohibiting the rat display, concluding that the measure was content-neutral, and was intended simply to restrict signage that may obstruct drivers’ vision. Thus, it passed constitutional muster. The appeals court’s decision in Construction and General Laborers’ Union No. 330 v. Town of Grand Chute was a blow to organized labor: It gave municipalities within the circuit the green light to enact measures to rid their streets of Scabby.

Rat-friendly. Employers have also sued in hopes of exterminating Scabby. In Microtech Contracting Corp v. Mason Tenders District Council of Greater New York, a federal court in New York refused an employer’s request that it enjoin a union from erecting Scabby at any jobsite where it was working. The court said it the Norris-LaGuardia Act prohibits courts from issuing injunctions in labor disputes and expressly prohibits enjoining unions from engaging in activities that publicize a dispute with management.

The Obama Board was similarly rat-friendly. In a line of cases, it likened Scabby’s presence to permissible “handbilling,” insulated from secondary boycott charges. Case in point: Sheet Metal Workers Int’l Assn Local 15, a 2011 decision in which a split NLRB panel held that a union’s display of a 16-foot “Scabby” at a secondary employer site did not constitute unlawful picketing and was not coercive and, thus, did not violate the NLRA.

Citing then-current Board law, the majority explained that picketing that seeks a consumer boycott of a secondary employer is generally unlawful, but stationary handbilling aimed at the same goal is not and is therefore protected speech. The rat display was lawful because the union agents operating the rat display were stationary, the majority reasoned. And while non-picketing conduct may still violate the Act if it causes disruption of the secondary employer’s operations, there was no evidence of such a coercive effect here—no confrontational element, no intimidation or blocking of entrances. The rat did not frighten or intimidate and was, in the end, “symbolic speech” protected by the First Amendment and permissible under NLRA Section 8(b)(4)(ii)(B).

On the heels of the Board decision, a regional director likewise determined that a bricklayer’s local did not violate the NLRA when it placed an inflatable rat near a common entrance in connection with lawful area-standards picketing. In a 2011 advice memo, he found that the union was involved in lawful primary activity at the site, thus its use of the rat was protected, and also noted that the rat is constitutionally protected expression—and so recommended dismissal of a nonunion masonry contractor’s Board charges against the union.

Scabby on the run. The NLRB’s current, assertive stance in opposition to Scabby, however, is problematic for unions. In a recently issued Advice Memorandum, the NLRB General Counsel’s office favored a broader interpretation of “picketing” and rejected the Obama Board’s more rigid definition, concluding that a union’s inflatable “fat cat” amounted to unlawful secondary boycott activity. The memo also emphasizes that in the labor relations sphere, “the government has a substantial interest in justifying some restraints on First Amendment freedoms.” Therefore, the general counsel instructed the Board’s regional offices to issue secondary boycott complaints in cases where a union brings Scabby (or any other inflatable friend) to a labor protest.

Most recently, not content to remedy the violation after the fact, an NLRB regional director has attempted to prohibit a union from erecting Scabby in the first place. Addressing an ongoing labor dispute at a supermarket site in New York, NLRB regional director Kathy D. King filed a motion for a temporary injunction seeking an immediate bar on the union’s use of an inflatable rat and inflatable cockroach, which the union is erecting daily at or near the store premises, ostensibly in protest of employer unfair labor practices.

The 10(l) petition seeks to enjoin Construction & General Building Laborers’ Local 79’s rat display pending resolution of a secondary boycott charge against the union. Contending that the union is engaged in economic coercion and trying to impermissibly enmesh a neutral employer in the ongoing dispute, the regional director argues that a final Board order won’t suffice to undo the otherwise irreparable harm resulting from the union’s conduct.

“Orwellian?” The union replied that the regional director’s bid for injunctive relief is based on a “novel theory that is contrary to current Board law, which holds that a union’s use of the inflated rat is lawful.” The union noted that district courts have routinely upheld the use of the rat displays on First Amendment grounds.

“The Regional Director is not merely advancing a ‘novel’ legal theory, she is advocating an Orwellian one,” according to the union. “It would mean that a federal administrative agency (the NLRB) can police the content of the undisputedly peaceful messages to which the public gets exposed as people go about their daily lives. It would mean that a federal agency could ban certain highly expressive images—like the inflated rat or maybe so too the inflated cockroach—because the balloons may cause the public to think thoughts [the employer] and the government do not want them to, such as how unfairly the economy treats workers.”

The court has postponed a decision on the TRO motion, but a ruling—one that might well seal Scabby’s fate—is imminent.

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