“Scabby the Rat” and “Corporate Fat Cat”…beware.  A recent National Labor Relations Board (“NLRB” or the “Board”) Advice Memorandum has suggested that the use of oversized inflatable rats may constitute illegal secondary picketing. 

In the Advice Memorandum released May 14, 2019, the Board’s General Counsel pressed the Board’s Chicago office to issue a Complaint against an IBEW local (the “Union”) that used the inflatable balloon of “Corporate Fat Cat” (symbolizing the Employer) choking a construction worker at a neutral employer’s job site.  The Union also distributed handbills and displayed a banner in an attempt to force the general contractor to pressure a subcontractor to pay the “area standard” wages and benefits.  The Union did not have a primary labor dispute with the general contractor, to which the banner and balloon were directed. 

The U.S. Supreme Court long has held that handbilling (as opposed to picketing) at a neutral employer’s business is lawful, protected activity.  Three Board decisions issued during President Obama’s terms in office applied the same reasoning towards bannering and inflatable balloons.  In those cases, the NLRB concluded that a stationary banner was only a form of communication and not picketing, which is a combination of communication and conduct.  The Board’s reasoning extended to inflatable rats/cats; absent patrolling and/or blocking ingress or egress to a jobsite, the inflatables constitute lawful Union speech against a neutral.

Here, the General Counsel disagreed.  In the Advice Memorandum, he opined that the banner was a “functional equivalent” of a picket sign, and by having it next to a “frightening,” “large, hostile looking cat,” the Union was picketing a neutral employer, which is a violation of Section 8(b)(4) of the National Labor Relations Act (“NLRA”).  The General Counsel further explained, “The [Chicago region] should use this case as a vehicle to urge the Board to reconsider its decisions in [the three Obama Board cases] and conclude that the Union’s conduct here was tantamount to traditional picketing and moreover constituted signal picketing.”  The General Counsel further posited that the banners used “were knowingly false” and not protected by the First Amendment.

Since the parties informally settled the unfair labor practice charge, the Board will not have an opportunity to reconsider those earlier decisions.  Likewise, advice memorandums, by their very nature, are non-binding in all other cases and only serve to provide guidance to local NLRB offices.  Labor watchers anticipate that the current Board is looking for an opportunity to “pop” the use of inflatable rats at the work sites of neutrals.