The National Labor Relations Board, the federal government’s main labor law enforcement agency, may limit a favorite tactic unions employ against employers: inflating giant rats and cats and leaving them in front of work sites.
Twice in the past year, the board’s General Counsel Office has said that the inflatable animals can constitute a form of picketing by unions, an activity that has long been subject to strict regulations.
NLRB’s Brooklyn regional office sought in June to block a construction union local from putting inflatable rats and cockroaches in front of a Staten Island supermarket, arguing it amounted to a prohibited form of picketing. The union had sought to stop the store’s owner from doing business with another employer the union had a dispute with. A judge blocked the NLRB’s request, and the case is ongoing.
A December advice memo from the NLRB’s DC headquarters regarding a similar Chicago case argued that the balloon of a giant cat outside a construction site also represented a form of prohibited picketing. That case involved a union leaving an inflatable “fat cat” outside a company that used a subcontractor the union had a dispute with. The union and the employer subsequently reached an informal settlement in the case in February.
In both cases, the NLRB argued that the issue was that the unions were picketing an employer other than the one they were really locked into a dispute with. Picketing such “secondary employers” has long been prohibited. The cases were novel because the board argued that it was the balloons that constituted the picketing. Unions commonly use such tactics. The rat is affectionately known as “Scabby” to unions and is known to appear at worksites across the country.
Federal law regarding union picketing is complicated and limits it in several ways. Unions seeking to represent workers, for example, can only picket for 30 days and then must stop and attempt to organize the workers. Once a union election is held, the union cannot picket for another year. Picketing for the purpose of getting an employer to pay area-standard wages can be done indefinitely, but unions have to stipulate that they are not trying organize the workers when they do it.
The NLRB’s December memo argued that in the Chicago case the “Union’s conduct here was tantamount to traditional picketing” because the giant inflatable cat created “a symbolic, confrontational barrier.” Among other things, the cat included a large banner stating “Labor Dispute: Shame Shame” when the union’s conflict was not with the employer at the site but a subcontractor it had employed. That was “misleading,” the memo argued.
The memo also argued that the inflatable animal could also constitute a form of “unlawful coercion” because it was “an intimidating, violent cat strangling a construction worker.” Jayme Sophir, associate general counsel for the NLRB’s Division of Advice, wrote the December memo. She retired from the NLRB at the end of July.
