Wednesday, July 21, 2021: Union Displays of “Scabby the Rat” and Anti-Company Bannering OK Near Neutral Sites
With two Republican Members (Kaplan and Ring) of the National Labor Relations Board (“NLRB” or “Board”) voting with the (currently) lone Democrat Member and Chair of the NLRB (McFerran), the Board upheld its historic precedent allowing even grotesque union public displays attacking a neutral company NOT involved in the union’s “primary” dispute with the company with which the union was in contract. Member Emmanuel, a Republican Member, dissented.
The case had drawn great interest in the employer community because its stark facts revealed a union (Local 150 of the International Union of Operating Engineers: IUOE…near Chicago) bringing a neutral company (Lippert), not involved in disputes with Local 150, directly into the union’s dispute with another company (MacAllister) which was in a contract dispute with Local 150. The Board held, however, that the question was not whether Local 150 sought to or did bring Lippert into Local 150’s dispute with MacAllister. Rather, the question was whether Local 150’s actions violated Section 8(b)(4)(ii)(b) of the National Labor Relations Act (NLRA) [which prohibits actions which “threaten, coerce, or restrain” neutral companies not in a contract dispute with the union].
The three Member Board majority found the use of the displays and banners at issue in this case did not “threaten,” “coerce” or “restrain” Lippert, the neutral company dragged into Local 150’s dispute with MacAllister. The trial record was notably devoid of persuasive evidence that the at-issue displays and banners caused the undue pressure on Lippert which Local 150 had hoped to achieve with its display and banners. You may find the text of Section 8(b)(4)(ii)(b) of the NLRA at 29 U.S. Code Section 158(b)(4)(ii)(b).
NOTE: The five-Member bi-partisan Board is currently short-handed by being down one (Democrat) Member. Accordingly, two of the three Republican NLRB Members were necessary to join Chair McFerran to uphold Board precedent in this controversial area of traditional labor law.
The case is International Union of Operating Engineers, Local Union No. 150 a/w International Union of Operating Engineers, AFL–CIO and Lippert Components, Inc., Case 25–CC–228342L, 371 NLRB 8 (2021) which the NLRB announced by Press Release here.
Background Note: To prevent labor strikes, picketing and boycotts from crippling interstate commerce by rippling potentially nationwide beyond the contracting company in a primary dispute with its union and then secondarily impacting all suppliers to that contracting company, the NLRA prohibits, among many other things, “secondary boycotts.” These are union boycotts aimed at neutral suppliers not in a dispute with the union to pressure the neutrals to pressure their customer (the company in a “primary” dispute with which the union is in contract). Secondary boycotts are illegal because they are not aimed at just the target company in contract with the disgruntled union exercising its economic rights the NLRA statutorily protects. Specifically, the Board has historically interpreted Section 8(b)(4)(ii)(B) of the NLRA to prohibit a union from undertaking actions which “threaten, coerce, or restrain” neutral companies not in contract dispute with the union.
The question before the Board was whether the use of what the Dissent described as an “imposing” “Scabby the Rat” inflatable balloon along with the use of a banner attacking Lippert for doing business with MacAllister (with which the union had a primary dispute) constituted unlawful secondary protest activity because it unlawfully threatened, or coerced or restrained Lippert’s willingness to do business with MacAllister.
While the First Amendment rights of unions to voice their opinions about companies haunted and colored the background of this case, the Board ducked the constitutional issue by not reaching it. Instead, the three-Member majority dismissed Lippert’s Petition to the Board finding that they were “…not persuaded that the inflatable rat must be deemed intimidating and coercive within the meaning of Section 8(b)(4) because of its size or appearance. To be sure, the rat symbolically expressed the Union’s contempt for MacAllister as a “rat”—and for Lippert for doing business with MacAllister. But any impact achieved by the application of this label is a result of ‘mere persuasion,’ not proscribed intimidation. Simply put, to find a violation under the circumstances here would put the Board squarely at odds with decades of precedent interpreting Congress’ intent in enacting Section 8(b)(4)(ii)(B).”
So, ironically, while the union won this case, it is because the Board found the union’s efforts to threaten, to coerce and to restrain Lippert to have failed. This brings into question the continuing practical utility to unions of “Scabby the Rat” or banner attacks on neutrals, even when well-placed, as was this inflatable and their accompanying banners. [Indeed, one of the authors of this WIR has seen his children react with glee and pleasure at the sight of Scabby the Rat on street corners thinking it part of a Disneyland display or that the Macy’s Day Thanksgiving parade had finally come to San Jose].
Here is how the majority framed the legal question before the Board:
“The question presented in this case is whether the [International Union of Operating Engineers, Local Union No. 150 a/w International Union of Operating Engineers, AFL–CIO] union violated Section 8(b)(4)(ii)(B) of the National Labor Relations Act by displaying a 12-foot-tall inflatable rat and two stationary banners measuring 8 by 3.75 feet near an entrance to a recreational-vehicle (RV) trade show hosted by Thor Industries, an RV manufacturer. This display targeted Lippert Components, a company that supplied components for Thor’s RVs and that did business with MacAllister Machinery. The Union had a labor dispute with MacAllister, not with Lippert or Thor; its objective was to force Lippert to cease doing business with MacAllister.” [fn omitted]
Dissenting Member Emanuel put a bit more color on the facts of the case:
“The facts in this case are undisputed. The Union had a primary labor dispute with MacAllister Machinery, Inc. (MacAllister), and had no primary dispute with the Charging Party, Lippert Components, Inc. (Lippert). Lippert, which rents equipment from MacAllister, is a major supplier of components to the recreational vehicle industry. The Union took aim at Lippert at one of the largest trade shows in the United States for recreational vehicles, held in Elkhart, Indiana. The 4-day trade show was hosted by Thor Industries, a prominent American manufacturer of recreational vehicles. Thor Industries is one of Lippert’s largest customers, annually purchasing approximately $800 million worth of goods from Lippert. The trade show provides a platform for suppliers to the recreational vehicle industry to display their products. Lippert’s products and services were displayed at the Recreational Vehicle Hall of Fame in Elkhart, and the trade show spanned the grassy area on either side of the Hall of Fame. At the entrance to the trade show, the Union erected an imposing 12-foot inflatable rat, replete with red eyes, fangs, and claws. Adjacent to the giant rat, the Union displayed two large banners, each measuring about 8 feet by 4 feet. One of the banners declared “Shame on Lippert Components, Inc., for Harboring Rat Contractors.” The other banner read, “OSHA Found Safety Violations Against MacAllister Machinery, Inc.” Two union representatives were posted next to the display at all times. The Union maintained the rat-and-banner display, along with its two attending representatives, for the 4 full days of the trade show, commencing approximately at 9:30 a.m. and lasting until about 5 p.m. each day. Attendees of the trade show drove past the giant inflatable rat and two banners to park in the grassy field near the Hall of Fame.”
How We Got Here
What’s the History on Scabby?
For over 40 years, New York City unions have used rats as a symbol of protest. Employees who used to replace union employees during a labor strike were historically called “rats” (or “scabs”), explaining the origins of the rodent. The first reference in print of using an inflatable rat at a union protest appeared in a 1976 New York Times article about a sanitation worker strike. Big Sky Balloons & Searchlights in Plainfield, Illinois (about 45 miles south west of Chicago) created the current line of (now) six Scabby the Rat sizes and demeanors for a Chicago brick workers’ union in 1990. [Before you rush to your keyboard to order your own rat off of Amazon, please know that Big Sky sells six sizes of the balloons for between $2600 and $9300 (not including tax, shipping, insurance and accessories)].