Donald Trump has not always had the coziest of relations with the National Labor Relations Board. Back in November of 2016, the NLRB forced him to recognize the union formed by his employees at the Trump International Hotel Las Vegas, even though he really, really, really didn't want to.

But ever since the NLRB has been under his purview, he's done with it what he's done with nearly every other government agency: hired people diametrically opposed to the agency's entire purpose to run it. Example? Peter Robb, the Trump-appointed general counsel for the NLRB has a long history of advocating for management and against unions. He has spent a pretty big chunk of his tenure searching for pro-union rulings to overturn and taking away adjudication powers from civil servants across the country in order to grant those powers to an all-Republican, all-anti-labor panel in DC.

One of the things Robb has been trying to do since April 2018 is to take down his arch-nemesis, Scabby the Rat. And Robb finally sees a chance to do that with a recent labor dispute between the International Brotherhood of Electrical Workers and a Chicago construction firm. First, he's going to declare Scabby the Rat -- which is a large balloon in the shape of an adorable scabby rat -- illegal.

The union is currently in a dispute with Edge Electric over wage and benefits issues. Edge was contracted by a construction company, Summit Design + Build, so the union set up a yellow banner reading "LABOR DISPUTE: SHAME SHAME" and a large inflatable Fat Cat holding a construction worker by the neck in front of a construction site. Upon seeing the giant inflatable cat and the banner, two workers turned around and went home, because as we all learned when we were children (yes?), you don't cross a picket line.

As a result of this, Summit Design + Build filed a complaint to the NLRB. It was settled, but Robb's office went ahead and sent out a memo asking that the board reconsider its rulings in several prior Scabby-related cases and find that our friend the balloon rat, and other inflatables, are "tantamount to unlawful secondary picketing, and signal picketing that unlawfully induced or encouraged neutral employees to cease working, or at least constituted unlawfully coercive non-picketing conduct."

Just To Give You Some History Here...

Our First Amendment rights for labor unions are not in great shape. A provision of the extremely bad anti-labor 1947 Taft-Hartley Act (written in response to the strike waves of 1945 and 1946) bans unions from "coercive" picketing in front of "secondary employers" — i.e. companies that hire non-union contractors. So they can't do a full-on picket line, but they can stand there as "observers" (which is why you'll often see them wearing signs that say "observer") and hand out informative flyers. This was the same act, by the way, that banned unions from participating in general strikes, banned closed shops, allowed states to pass right to work laws, prohibited unions from engaging in sympathy strikes and secondary boycotts of other corporations that are screwing over their workers, and, until 1965, required union workers to sign oaths swearing that they weren't commies. Not to mention a whole host of other bad shit I do not have the time to get into.

Basically, the law considers speech from organized labor to be "commercial speech," differentiating it from speech from private citizens.

Traditionally, although management hates Scabby, Scabby has not been considered "coercive," largely because he is stationary and doesn't block an entrance. This was settled back in 2011 in a case called Southwest Regional Council of Carpenters (New Star General Contractors, Inc.).

The NLRB held that hanging a banner outside in front of the "secondary" employer's worksite with this clear purpose of simply shaming the "secondary" employer does not constitute what is known as "signal picketing" (sending a signal or inducement to workers at the "secondary" employer to engage in any kind of work stoppage or slowdown), nor does it constitute any kind of an unlawful threat, restraint or coercion against the "secondary" employer.

In this case, the NLRB found that because the bannering did not actually result in any workers seeing the banner and then summarily turning around and going home, that it was lawful. Thus, the two workers in the Summit case actually doing that is what Robb sees as his "proof" that the inflatable created an unlawful barrier.

But Back To The Issue At Hand!

The memo basically states that because the inflatable was effective, it is illegal.

[T]he Union here did not simply seek to persuade the public about the justice of their cause by disseminating information in a non-confrontational manner such as a handbill, but rather sought to dissuade anyone from entering the site through intimidation and coercion. The Region should emphasize 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. Indeed, the efficacy of the Union's approach was demonstrated by the refusal of two other subcontractors to perform work on three of the days the Union stationed its agents at the construction site.

That seems like some bullshit, and it is.

This isn't the first time this year that the NLRB has tried to take down Scabby, either. In June, they attempted to get a judge to issue an injunction to stop a months-long protest against a Shoprite supermarket for using non-union construction labor on account of the fact that they were using Scabby and several inflatable cockroaches in said protest. Robb tried to get the judge to rule that the use of the inflatables was a form of "unlawful coercion," rather than simply a delight to children everywhere, and failed.

Via Bloomberg Law:

U.S. District Judge Nicholas Garaufis denied the request July 1, siding with LIUNA affiliate Construction & General Building Laborers Local 79.

"As a threshold matter, the court notes that Local 79's 'peaceful use of stationary, inflatable rats and a cockroach to publicize a labor protest is protected by the First Amendment,'" Garaufis wrote in his decision.

The judge went a step further, warning the NLRB that a federal court enjoining expressive conduct would be "untenable" and "raise serious constitutional concerns."

If the NLRB attempts to ban the use of Scabby entirely — as this memo suggests they hope to do — they can almost definitely expect a First Amendment lawsuit from unions around the country. Whether or not we can trust that whatever judge or judges get the case are as wise as Judge Garaufis ... well, that's a crap shoot.

But if we really want to make sure that the First Amendment rights of workers are protected, what we're going to need to do is fix that damn Taft-Hartley Act. While attempts to repeal or amend the Act fell flat during the Carter and Clinton administrations, the Democratic Party is a hell of a lot less wimpy than it used to be, and getting rid of this bullshit could and should become a bigger priority for future candidates.


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Robyn Pennacchia

Robyn Pennacchia is a brilliant, fabulously talented and visually stunning angel of a human being, who shrugged off what she is pretty sure would have been a Tony Award-winning career in musical theater in order to write about stuff on the internet. Follow her on Twitter at @RobynElyse


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