Federal labor law protects neutral (secondary) employers from becoming entangled in labor disputes between another (primary) employer and unions.  For most of the past decade, however, the NLRB has allowed unions to set up various displays – including an inflatable rat (otherwise known as “Scabby”) and an inflatable “fat cat” – near neutral employers’ premises or work sites with relative impunity.Management & Labor Report - Default Social Share Image

A recent memo from the NLRB’s Division of Advice signals a change in position of the Board’s prosecutorial arm.  The memo concerned  a construction site in Chicago where a union placed agents with a large banner and a large inflatable cat clutching a construction worker by the neck.  The banner and inflatable cat indicated that the union had a labor dispute with the general contractor (primary) on the project, even though the electrical subcontractor (secondary) was the entity truly targeted by the union.

The purpose the banner and rat was to try to force the general contractor to use an employer, i.e., subcontractor, that was a signatory to the union’s collective bargaining agreement.  Due to this purpose, labor law limited the methods at the union’s disposal to protest the general contractor.  As such, the union was prohibited from engaging in picketing, which has a technical meaning in this context and was limited to patrolling an area or creating a physical barrier at the work site.  The union was also prohibited from engaging in coercive conduct that is tantamount to picketing, which has, in past Board decisions, included the use of extremely loud megaphones or even by way of a signal to others of an invisible picket line.

Under a line of Board cases from 2010 and 2011, the activity involving the banner and the rat have been lawful as non-picketing activity which is not otherwise coercive.  The banner and the rat have been considered to be stationary objects, even when accompanied by union agents, that do not create a physical or psychological barrier that would affect the business of the neutral employer.

The new Advice memo indicates that the Board’s General Counsel will urge reconsideration of Board precedent in this area.  In the memo, the Division of Advice found that the banner and the inflatable cat strangling a construction worker was tantamount to picketing or constituted signal picketing.  Whether it is actually picketing, or just a signal standing in for picketing, the conduct coerces employees, suppliers, or vendors from entering the site to work for or do business with the neutral electrical subcontractor general contractor.  Based on this reasoning, the Division of Advice ordered that a complaint be issued. and instructed NLRB attorneys handling the case to argue for the reversal of precedent on this topic.

Does this mean that Scabby the rat is dead?  Can unions no longer use banners and inflatable animals to protest?  The answer is no.  Scabby is likely alive and well, at least for now.  The NLRB itself would need to overturn the applicable precedent; the position of the Division of Advice is not precedential nor sufficient to change the NLRB’s position.  In fact, a NLRB Administrative Law Judge recently found that a union acted lawfully by using an inflatable rat, passing out handbills, and using a bullhorn at high volume when targeting a neutral employer on a construction site.

And even if the NLRB agreed with the General Counsel’s new position, the holding could be limited to conduct including both a banner and an inflatable object at the same time, where the inflatable animal used here was shown straggling a construction worker – an act of physical violence.  If unions contain their activity to one “prop” at a time, or at least just use Scabby the rat without any depictions of violence, they will be in a better position to maintain the status quo on secondary activity.  The case will now progress to the complaint stage, which, if not settled, may eventually bring the case before the Board.  For now, Scabby the rat and the Fat Cat live on.

Andrew MacDonald is an associate in the firm’s Labor and Employment Department, resident in its Philadelphia office.