NLRB Rules Use of “Scabby the Rat” Valid Against Secondary Employer

The National Labor Relations Board (NLRB) has ruled that a union displaying a “Scabby the Rat” inflatable in front of a neutral secondary employer was a valid exercise of their First Amendment rights. However, the court failed to create a distinct rule that determined what was, or was not, a valid exercise of union speech under the National Labor Relations Act (NLRA). This decision may indicate that other, similar protests will become more common against secondary employers in the future.

What Was This Case About?

In International Union of Operating Engineers, Local Union 150 (Lippert Components, Inc.), 371 NLRB No. 8 (2021), the NLRB was asked to consider whether it was valid for a union to display banners and an inflatable rat (known as “Scabby the Rat”) in front of a neutral secondary employer. Specifically, the Scabby the Rat inflatable and the protest banners were used outside a trade show operated by a supplier for the company that the union was protesting. The question was whether these tactics violated Section 8(b)(4) of the NLRA, which make it illegal for a union to “threaten, coerce or restrain” a secondary employer.

What is a Secondary Employer?

The term “secondary employer” is used in the NLRA to refer to any business that is in a business relationship with an employer that is currently the subject of labor organizing (known as the primary employer). As stated previously, the NLRA typically prohibits many kinds of union organizing against secondary employers, such as strikes or boycotts. This is intended to prevent unions from using influence over a primary employer’s business partners, such as their suppliers or distributors, to pressure them into a union contract.

What Did the NLRB Decide?

In a 3-1 decision, the NLRB ruled that the use of the “Scabby the Rat” inflatable rat, as well as several large banners, did not constitute an illegal strike or boycott against the secondary employer. This was based on the notion that the use of the rat and banners was a valid exercise of the union’s First Amendment rights. Without additional coercive or threatening activity, it was mere freedom of expression, and thus not a violation of Section 8(b)(4) of the NLRA.

What Does This Mean For Employers?

In all likelihood, this means that more employers will begin seeing Scabby the Rat and other similar measures in the near future. While the prohibition against secondary boycotts and secondary strikes remains, it is likely that unions will start pushing this line more as time goes on. However, if you are subjected to a potentially illegal secondary boycott as a result of one of your business relationships, you should speak to a lawyer with knowledge of labor and employment law, who can advise you on your best next steps.

The employment law attorneys at Blodnick, Fazio & Clark are skilled and knowledgeable in the areas of business law and commercial transactions.  With offices conveniently located in Garden City, Nassau County, and Babylon, Suffolk County, the firm provides high-quality legal care at reasonable prices. If you require legal assistance concerning business startups, formation, corporate acquisitions and mergers, corporate restructuring, or another business matter, call (516) 280-7105 or fill out our contact form for a free consultation.

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