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Scabby the Rat May Live, Says the NLRB

Perhaps you’ve seen it: A gigantic, inflatable, plastic, fanged, red-eyed, and beclawed rat, nicknamed Scabby, that unions sometimes deploy when protesting non-union businesses. Former NLRB General Counsel targeted Scabby for extermination, contending that using it in that manner ran afoul the National Labor Relations Act’s prohibition against threatening or coercive secondary activities. Last week, however, a Board majority voted that Scabby could live on.

In Lippert Components, Inc., 371 NLRB No. 8 (2021), three members – Lauren McFerran, John Ring, and Marvin Kaplan – joined in an opinion holding that a union did not violate that NLRB by displaying Scabby and two large banners near the public entrance of a trade show at which a neutral employer was present.

In a separate concurrence, Chairman McFerren pinned her vote on Board precedent.

In today’s decision, a majority of the Board agrees that the display of the banners and inflatable rat at issue here do not violate Section 8(b)(4)(ii)(B) of the National Labor Relations Act, and that the complaint should be dismissed. I believe that this outcome is dictated by the Board’s decisions in [Carpenters Local 1506 (Eliason & Knuth of Arizona), 355 NLRB 797 (2010), and Sheet Metal Workers Local 15 (Brandon Regional Medical Center), 356 NLRB 1290 (2011)], which held that such displays, under analogous circumstances, did not violate the Act’s secondary boycott provisions. The Board must follow its own precedents, and those precedents are directly applicable in this case.

In a separate concurrence, Members Kaplan and Ring agreed that dismissal was warranted to avoid First Amendment complications.

Congress enacted Section 8(b)(4) to protect neutral employers from being enmeshed in labor disputes not their own. . . . As important as this protection of neutral employers is, however, the Supreme Court has made clear that enforcement of the Act’s proscriptions of secondary activity can conflict with First Amendment rights. Decades of binding Supreme Court precedent direct us on where the line must be drawn between constitutionally protected persuasion and expressive activity, on the one hand, and threats, coercion, and restraint rightly subject to interdiction. In our view, this precedent compels the conclusion that the rat-and-banner display at issue here does not fall within the ambit of Section 8(b)(4)’s prohibitions. Accordingly, we concur in dismissing the complaint.

Member Emanuel, however, would have found a violation.

My colleagues, by affirming Brandon and Eliason & Knuth, ensure that displays of banners and giant, inflatable rats directed at neutral employers will be deemed lawful, including in this case. Such coercive secondary conduct will predictably proliferate, but today’s decision leaves targeted neutral employers without recourse. Such a result cannot be squared with the Board’s obligation to defuse and channel industrial strife toward legitimate conduct under the Act. To the extent Chairman McFerran deems Brandon and Eliason & Knuth as setting forth an immutable Constitutional line, I respectfully disagree. . . . Board Members Schaumber and Hayes, who vigorously dissented in Eliason & Knuth, aptly predicted that the Board’s approach in this area ‘substantially augments union power, upsets the balance Congress sought to achieve, and, at a time of enormous economic distress and uncertainty, invites a dramatic increase in secondary boycott activity.’ . . . This prediction is no less true today than when made a decade ago. Aggrieved neutral employers will continue to petition the Board seeking relief from secondary coercion. The Board’s response today is to state, in effect, “too bad.”


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