Scabby Is Protected

By Gerard Morales

In a recent case, the National Labor Relations Board (“NLRB” or “Board”) confronted the issue of whether the display of an inflatable rat (“Scabby”) and banners by a labor union, at the entrance of a neutral site, constituted an unfair labor practice in violation of the secondary boycott prohibition in the National Labor Relations Act (“Act”). Lippert Components Inc., 371 NLRB No. 8 (2021).

In essence, the union had a dispute with a contractor (primary employer) of Lippert Components (secondary or neutral employer). In furtherance of its dispute, the union displayed Scabby and several banners at the entrance of Lippert’s RV show. Lippert filed unfair labor practice charges against the union alleging that such display constituted a secondary boycott, prohibited under the Act, because, by displaying Scabby and the banners at the entrance of Lippert’s show, the union was expanding its dispute with the primary employer to a neutral employer that had no stake in the dispute. Lippert claims that the fact that, as the neutral employer, it used the products or services of the contractor/primary employer did not exempt the union’s demonstration at Lippert’s entrance from the secondary boycott prohibition of the Act.

In its decision, the Board explained that not all union activity having a secondary objective (enmeshing a neutral party in the union’s dispute) is prohibited. In essence, in order to constitute unlawful secondary boycott, it must be shown that the union’s conduct “threaten, coerce, or restrain any person.” Citing well-established jurisprudence, the Board held that Scabby’s display did not meet the “threaten, coerce or restrain” requirement. In the Board’s view, Scabby’s display is like hand billing or bannering, which seek only to persuade, and is therefore permitted under the Act. As such, it is qualitatively different from traditional picketing that “aims to achieve its objective predominantly through intimidation.” See e.g., Eliason & Knuth, 355 NLRB 797 (2010); DeBartolo Corp. v. Florida Trades Council, 485 U.S. 568 (1988).

This decision is significant to employers as it should be expected that unions may use displays, such as inflatable rats, with frequency as part of their organizing campaigns.