The National Labor Relations Board (NLRB) has asked for the parties and amici to submit briefs answering four questions in a case involving a union’s display of a large inflatable rat, commonly called “Scabby the Rat,” and two large banners on public property near the entrance of a neutral employer’s site. International Union of Operating Engineers, Local Union No. 150 (Lippert Components, Inc.), 370 NLRB No. 40 (Oct. 27, 2020). NLRB Chairman John F. Ring and Members Marvin E. Kaplan and William J. Emanuel joined in issuing the “Notice and Invitation to File Briefs.” Member Lauren McFerran wrote a dissent.

The Notice and Invitation to File Briefs requests answers to the following questions:

1. Should the NLRB adhere to, modify, or overrule existing precedent?
2. If the NLRB should modify or overrule existing precedent regarding what conduct constitutes proscribed picketing under National Labor Relations Act (NLRA) Section 8(b)(4), what should that standard be?
3. If the NLRB should modify or overrule existing precedent regarding its standard for determining what non-picketing conduct is otherwise unlawfully coercive under Section 8(b)(4), what should the standard be?
4. Why would finding that the conduct at issue in the case violated the NLRA under any proposed standard not result in a violation of the union’s rights under the First Amendment to the United States Constitution?

Unions have displayed large (10-feet high or more) Scabby the Rats alongside large banners on public property as part of numerous “secondary” protests aimed at businesses doing business with employers with whom the unions have labor disputes. The unions’ goals have been to pressure the secondary employers to cease doing business with the primary employers to pressure the primary employer to (for example) change its labor relations practices. In general, secondary picketing or other actions are illegal under the NLRA; primary actions are not.

Under existing precedent, such displays outside neutral employers’ facilities, even when accompanied by requests that the public not patronize the neutral employer, have been determined to be lawful under the NLRA. The NLRB has decided the stationary banners or a 16-foot inflatable rat did not constitute unlawful “secondary” picketing or otherwise coercive secondary conduct that did not directly disrupt or threaten to disrupt the neutral employer’s operations. Eliasson & Knuth, 355 NLRB 797 2010); Brendan Regional Medical Center, 356 NLRB 1290 (2011). These precedents could be overruled based on the answers the NLRB receives to its questions.

Briefs by amici may not exceed 25 pages and must be filed with the NLRB in Washington, D.C., on or before December 28, 2020.

This post was also written by Richard F. Vitarelli & Mei Fung So.