The Fate of the Inflatables?
By: Erin Krejci
Scabby the Rat. You may not be on a first name basis, but chances are you have seen him hanging – or floating – around near the entrance of a business or jobsite. Scabby is a giant inflatable balloon rat. He stands anywhere from 12 to 20 feet tall and is known for his snarling teeth, blistering belly, sharp claws, and bloodshot eyes. Scabby earned his fame for appearing alongside picketing union workers.
Corporate Fat Cat is often by Scabby’s side. He is also an oversized balloon and is known for his slick suit and tie, smug smirk, and the cigar dangling precariously from his mouth. Sometimes, Fat Cat has his paws clasped tightly around the neck of a (balloon) construction worker. For decades, Scabby and Fat Cat have been used to make the public aware of labor disputes.
Scabby and Fat Cat are no strangers to the courts and have been the subject of many lawsuits from business and property owners as well as local government entities. Though Scabby and Fat Cat have faced numerous legal challenges over the last 30 or so years, the efforts to exterminate them have been largely unsuccessful. However, that may soon change. Scabby and Fat Cat seem to have some vocal enemies in high places. Indeed, on May 14, 2019, the National Labor Relations Board General Counsel’s office issued an advice memo seeking to put a stop to them and deflate the union icons for good.
Congress enacted the National Labor Relations Act (NLRA) in 1935 to protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices.
Section 8 of the NLRA defines a set of prohibited actions by employers, employees, and unions, known as an unfair labor practices. Among other things, Section 8 prohibits conduct by a labor organization that is found to “threaten, coerce, or restrain” a secondary employer that is not directly involved in a primary labor dispute, if the objective of that conduct is to cause the secondary employer to cease doing business with the primary employer.
Over the years, there has been extensive debate about what constitutes “threats, coercion, or restraint.” Under existing precedent, picketing that seeks a consumer boycott of a secondary employer has been found to be coercive under the NLRA and, therefore, unlawful. However, stationary handbilling with the same objective has generally not been found to rise to the level of coercion, and has instead been largely deemed to be protected symbolic speech.
The National Labor Relations Board, or NLRB, is the independent federal agency charged with enforcing United States labor law in relation to collective bargaining and unfair labor practices. It supervises elections for labor union representation and can investigate and remedy unfair labor practices.
The NLRB is governed by a five-person board and a General Counsel, all of whom are appointed by the President with the consent of the Senate. Board members are appointed to five-year terms and the General Counsel is appointed to a four-year term. The General Counsel acts as a prosecutor and the Board acts as an appellate quasi-judicial body from decisions of administrative law judges.
The NLRB and Inflatables During the Obama Years
During Obama’s presidency, the NLRB was comprised of a majority of Democratic appointees. In 2010 and 2011, the NLRB issued a series of decisions that restricted the circumstances under which a union could be found to have engaged in threatening, coercive, or restraining behavior and seemingly afforded Scabby the Rat and Corporate Fat Cat certain protections.
In Carpenters Local 15006 (Eliason & Knuth of Arizona, Inc.), 355 NLRB No. 159 (2010), the NLRB determined that stationary bannering at a secondary employer’s premises was not unlawful conduct. The NLRB determined that a union could post agents in front of the neutral employer’s premises and that such agents could hold banners stating that there was a “labor dispute” and even declaring “shame” on the employer. The NLRB determined that such conduct was not “picketing” and opined that the carrying of picket signs and some sort of “persistent patrolling” were necessary to establish a violation of section 8 the NLRA. The NLRB specifically noted that the stationary bannering at issue was allowable because it did not block ingress or egress to the neutral business.
In Sheet Metal Workers Local 15 (Brandon Regional Medical Center), 356 NLRB No. 162 (May 27, 2011), the NLRB extended the rationale relied upon in Carpenters Local 15006. The NLRB determined that positioning Scabby the Rat near a neutral business, in this case a hospital, was not unlawful because it was neither picketing, nor coercive. The NLRB noted that the Scabby display was not “confrontational conduct” because the union members did not physically or verbally accost those entering or departing the hospital, did not block access to the hospital facility, and did not otherwise interfere with the hospital’s operations. Scabby himself was located 100 feet from the hospital’s front door, which the NLRB found to be a “significant distance” away.
The majority determined that Scabby “was symbolic speech”. The majority specifically noted that “[Scabby] certainly drew attention to the Union’s grievance and cast aspersions on [the contractor], but  nothing in the location, size or features of the balloon  were likely to frighten those entering the hospital, disturb patients or their families, or otherwise interfere with the business of the hospital.”
The NLRB and Inflatables Now
In an advice memo dated December 20, 2018 (but released to the public on May 14, 2019), the NLRB’s General Counsel’s office urged the NLRB to overturn the Obama-era protections afforded to Scabby and Fat Cat and conclude that the deployment of the inflatables is “tantamount to traditional picketing and moreover constituted signal picketing.”
The Advice Memorandum was issued in a matter involving International Brotherhood of Electrical Workers, Local 134. Region 13 of the of the NLRB submitted the case to the General Counsel for non-binding legal guidance as to “whether the union violated Section 8(b)(4)(i) and/or (ii)(B) by erecting a large, stationary banner proclaiming a labor dispute with the general contractor, as well as a large, inflatable cat clutching a construction worker by the neck, near the entrance to a construction site.”
The Advice Memorandum issued by the General Counsel’s office concluded that the union activity – namely the use of inflatables and stationary banners – was tantamount to unlawful secondary picketing and urged the Board to issue a complaint charging the union with a violation of the NLRA. The General Counsel’s office contends that large banners and inflatables at the entrances of neutral businesses seek to dissuade the public from entering through illegal “coercive” conduct, rather than permissible “persuasive” communication.
The Advice Memorandum characterized the Fat Cat inflatable as “intimidating” and the banner as “misleading,” and determined that both are the “functional equivalent of a picket sign.” According to the Advice Memorandum, the inflatables and banner created a “symbolic, confrontational barrier” to anyone seeking to enter the site. The Memorandum opined “that any member of the public needing to transact business at the site would – upon encountering a large, frightening cat gripping a worker by the neck, and a large banner proclaiming “LABOR DISPUTE: SHAME SHAME” – most likely stay away from the construction site due to a desire to avoid confrontation, rather than because of the strength of the Union’s message or to engage with the Union agents in an effort to understand their grievances.” The Advice Memorandum emphasized that at least two individual employees at the site refused to report work in response to the union activities.
The General Counsel’s office concluded that First Amendment concerns were not implicated because the First Amendment does not shield unlawful secondary picketing.
The Fate of the Inflatables?
According to the NLRB’s docket, the International Brotherhood of Electrical Workers, Local 134 matter is not ripe for further action because an informal settlement was reached by the parties in February 2019. This means that – for now – the Obama-era precedent affording Scabby and Fat Cat certain protections remain in place. However, the Advice Memorandum raises serious concerns regarding the fate of the inflatables, Scabby the Rat and Corporate Fat Cat. Given the General Counsel’s public stance on the issue, it is likely that if and when another dispute arises involving inflatables or stationary banners, the General Counsel’s office will again recommend that the NLRB revisit the prior precedent and try to deflate Scabby and Fat Cat for good.