November 2, 2020

NLRB Wants Input On Labor Union Protest Practices

What kind of props and signs should be allowed at labor union protests? The National Labor Relations Board (NLRB) is posing that question to the public in a new call for comment.

As the ABA Journal reported, the NLRB “is seeking briefs on whether it should limit union workers’ right to use Scabby the giant inflatable rat at some protests over the use of nonunion labor.” The NLRB has asked whether it should modify or overrule NLRB decisions that permit the rat to be used in “secondary protests” – protests at businesses where the labor union members do not work.

Specifically, the NLRB wants to know:

  • Whether it should adhere to, modify, or overrule precedent allowing Scabby the Rat and similar props and signs;
  • Whether it should alter its standard for determining what conduct constitutes proscribed picketing and what should the standard be?
  • Whether it should alter its standard for determining what non-picketing conduct is otherwise unlawfully coercive and what should the standard be?
  • If finding that the conduct at issue in this case violated the National Labor Relations Act under any proposed standard will not result in a violation of the respondent’s rights under the First Amendment?

Labor unions typically have fewer protections at these secondary protests, but NLRB precedent also indicates large banners and props like a large, inflatable rat “are not the kind of protest tactics that amount to the kind of coercive conduct that is banned.” However, NLRB general counsel Peter Robb has called for banning Scabby at secondary protests due to its “fierce look.” ‘

The NLRB is currently considering a case in which a labor union displayed Scabby and two large banners on public property near the entrance of a trade show, accusing one supply company of “harboring rat contractors.” An administrative law judge previously has ruled in favor of the union.

The Metals Service Center Institute’s partners at the Coalition for a Democratic Workplace plan to file a brief in this matter.

Click here to see the NLRB’s announcement and for more information about how to submit comments.