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Scabby the Rat is at It Again and Free to Join Union Protests Scabby the Rat is at It Again and Free to Join Union Protests

Scabby the Rat is at It Again and Free to Join Union Protests

To be fair, Scabby itself is very unlikely to have consciously decided to join in with Union protests, or any protests for that matter, as Scabby in this case is a giant, inflatable, red-eyed rat with sharp teeth; incisors anyone?

The National Labor Relations Board (“NLRB”) decided Int’l Union of Operating Eng’rs, Local Union No. 150, N.L.R.B., No. 25-CC-228342 on 7/21/2021, that the International Union of Operating Engineers (“Union”) and other unions were free to utilize “Scabby the Rat” at demonstrations/protests involving businesses that do not employ workers of the Union.
  1. What Happened Here?

    Back in 2018, the Union demonstrated near the entrance of a recreational vehicle (“RV”) trade show in Elkhart, Indiana. The Union did not protest alone. Scabby the rat, a twelve-foot-tall inflatable creature, as well as two large stationary banners, accompanied the Union.

    Scabby and the accompanying banners targeted a business that supplied parts and components for the RV industry (“Company X”) and also did business with an equipment company (“Company Y”). The Union was involved in a labor dispute with Company Y—not the employer who sponsored the trade show, nor Company X—but it sought to force Company X to cease its business relationship with Company Y by demonstrating at a high traffic trade show. Hence, Scabby’s arrival to the scene.

    Specifically, the Union placed Scabby and the banners near the entrance to the trade show— attendees to the show had to drive past the display to park their vehicles. Scabby appeared in the way Scabby usually does—with red eyes, claws, and sharp incisors— and the banners read: “OSHA Found Safety Violations Against [Company Y]” and “SHAME ON [COMPANY X] FOR HARBORING RAT CONTRACTORS.” Union officials were present, but did not shout at, nor confront, trade show attendees.
  1. The Law

    In this case and context, Company X was a “secondary” or a “neutral” employer. Section 8(b)(4) of the National Labor Relations Act (“NLRA”) was enacted by Congress to protect employers from becoming enmeshed in labor disputes that are not their own. Nearly 70 years ago, the Supreme Court recognized that Section 8(b)(4) embodied “the dual congressional objectives of preserving the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes and of shielding unoffending employers and others from pressures in controversies not their own.” NLRB v. Denver Building & Construction Trades Council, 341 U.S. 675, 692 (1951).

    Yet, not all union activities relating to secondary/neutral employers are prohibited. Unions are prohibited from engaging in behavior with the proscribed objective being to “threaten, coerce, or restrain any person.” Section 8(b)(4)(ii)(B). If behavior does not fall within a proscribed category, it may be acceptable.

    The Supreme Court had previously found that peaceful hand-billing, unaccompanied by picketing, while urging consumers to boycott a neutral employer was not violative of Section 8(b)(4). DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U.S. 568 (1988). The Court found secondary picketing of a neutral employer, aimed to achieve its objective through intimidation, violative of Section 8(b)(4). NLRB v. Retail Store Employees Union, 447 U.S. 607 (1980).
  1. The Decision

    The NLRB determined that in this case, the display of Scabby and the banners did not violate Section 8(b)(4)’s secondary boycott provisions based on previous board precedent. See Carpenters Local 1506 (Eliason & Knuth of Arizona, Inc.) 355 NLRB 797 (2010); Sheet Metal Workers Local 15 (Brandon Regional Medical Center), 356 NLRB 1290 (2011). The activity was not deemed to be threatening or coercive.
  2. The Aftermath

    Scabby has long been a divisive figure; reviled by some and lauded by others. For now, Scabby has avoided extermination and may grace (or haunt), a place of employment near you—secondary, neutral, or otherwise.

    It is important to recognize that the NLRB decision involved a 3-1 vote in favor of deciding that Scabby’s appearance in the present case was lawful. Two Republican appointees sided with the lone Democrat appointee, with one Republican appointee dissenting. While much of our society is polarized—at least on this front, the NLRB acted in a bi-partisan fashion.

    Additionally, the NLRB managed to decide this matter utilizing Board precedent, but there are possible First Amendment issues lurking beneath the floorboards, perhaps a discussion for another day.
For more information, contact Cameron Ritsema or the Ice Miller Labor and Employment attorney with whom you most frequently work. 

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.
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