NLRB General Counsel Seeks to Deflate Scabby the Rat

By Bill Pokorny and Erin Walsh - Franczek P.C.

May 20, 2019

Scabby, the gnarly, diseased, inflatable rat, has long been recognized as a symbol of a labor protest.  During the Obama-era, the National Labor Relations Board likened the use of Scabby to peaceful, protected activities such as hand-billing and found that the rat did not have an unlawful, coercive effect. Not surprisingly, that view seems to have changed now that the Board has shifted to Republican control. In a recent advisory memo issued by the Board’s Office of the General Counsel, Scabby was categorized as a coercive symbol that “create[s] a symbolic, confrontational barrier” and is the “functional equivalent” of unlawful picketing. As such, the General Counsel’s memo urges the Board to overturn Obama-era Board precedent and find that a union’s act of inflating Scabby may violate the National Labor Relations Act.

The NLRA prohibits conduct found to “threaten, coerce, or restrain” a secondary employer not directly involved in a primary labor dispute, if the object of that conduct is to cause the secondary employer to cease doing business with the primary employer. In determining what constitutes unlawful “threat[s], coerc[ion], or restrain[t],” the United States Supreme Court has declared that while handbilling at a neutral employer’s business is lawful, picketing urging a boycott of the neutral employer is coercive and therefore unlawful because the mixture of conduct and communication is a deterrent to third persons to enter the premise. Applying this reasoning, the Board and federal courts have long held that inflatables like Scabby fall on the non-coercive side of the spectrum, and/or are symbolic speech protected by the First Amendment.

This memo urges a change to that perspective, emphasizing that Scabby is tantamount to unlawful secondary picketing and signal picketing, which unlawfully induces or encourages neutral employees to cease working and dissuades the public from entering the premises. In the memo, the General Counsel further opined that to the extent that inflating Scabby involves “speech,” it is labor speech and/or commercial speech, which is entitled to lesser First Amendment protection. Although advice memos are merely instructional guidance, the memo demonstrates a tangible a change in perspective.

This advice memo is the second blow to Scabby in 2019. In Constr. & Gen. Laborers’ Union 330 v. Town of Grand Chute, No. 18-1739 (7th Cir. Feb. 14, 2019), the Seventh Circuit upheld a zoning ordinance that authorized town officials to order a union to deflate Scabby without violating the union’s First Amendment rights.  Although the Seventh Circuit recognized that the display of Scabby implicated the First Amendment, it found that the municipality could implement and enforce a nondiscriminatory ban of all private signs on public property and rights-of-way. Importantly, the court found that the ordinance was consistently enforced and did not apply content-based discretion or permit certain messages while prohibiting others. This ruling strengthens local governments standing to enact and enforce regulations, which seek to prevent “eyesores” in a public-right of way, regardless of their labor related purpose or message.

Take Away: So where does this leave Scabby? Local governments can enforce bans on signage and displays such as Scabby when he is located on a public right of way, so long as the enforcement is content and viewpoint neutral and applied consistently. Likewise, private employer may find new support at the Board to challenge Scabby’s presence outside a secondary employer’s the workplace. However, employers should keep in mind that the General Counsel’s memorandum is not law, and that interpretation of the NLRA is ultimately up to the Courts, not just the National Labor Relations Board. Scabby may be a bit deflated, but he’s a resourceful rat and will likely remain a common sight for some time to come.