By: Grace E. Hurney
In a recently released Advice Memorandum, the National Labor Relations Board’s (NLRB) Division of Advice indicated that use of inflatables by a Union at an employer’s entrance can be a violation of the National Labor Relations Act (NLRA).
For those unfamiliar with these creatures, Scabby the Rat is a red-eyed, ghastly inflatable cartoon rat that can reach up to 30 feet tall that is deployed by unions to draw public attention to labor-management disputes. His given name is meant to reference the derogatory term “scab,” which unions use to describe individuals who work during a strike in order to help break it. Similarly, Fat Cat is a large inflatable cat, dressed in a suit with cigar in mouth, a haughty look on his face, and grasping in one outstretched fist a bag of money, and in the other, a construction worker.
In 2018, the Union notified the Employer that the Union would be engaging in handbilling and picketing at one of the job sites in an effort to pressure a subcontractor to increase wages and benefits. True to their word, the Union deployed Fat Cat and hoisted a large yellow banner reading “LABOR DISPUTE: SHAME SHAME” with the Employer’s name printed beneath the words, and distributed handbills indicating that the Union was in a labor dispute with the Employer. The Union admitted that its activity was aimed at the Employer despite not having a labor dispute with the Employer.
The Memorandum stated that the banner alone was the “functional equivalent” to a picket sign, as well as being misleading because the Union’s dispute was actually with the subcontractor and not the Employer. Fat Cat—described as a “large, hostile-looking cat”—was “tantamount to picketing” as the banner and inflatable in tandem “created a symbolic, confrontational barrier” to all who sought to enter the construction site. “Thus, the region should argue that the union’s erection of a stationary banner that misleadingly proclaimed a labor dispute with [Employer], as well as its use of a large, inflatable cat clutching a construction worker by the neck violated” the NLRA.
While this wasn’t the most noteworthy memorandum to hit the airwaves, it is still important, as it advocates a departure from the previous NLRB decisions under the Obama administration that adopted a narrower definition of activity that qualifies as secondary picketing.