Continuing its efforts to overturn precedent, the NLRB General Counsel’s Division of Advice has issued a new advice memorandum looking to strike at the most recognizable sign of unionism in urban areas today – – the inflatable rat that is used to signal a labor dispute to the public.

It has been long held by the Supreme Court that while handbilling at a neutral employer’s business is lawful, picketing urging a boycott of the neutral employer is coercive and therefore unlawful.  Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council (DeBartolo II), 485 U.S. 568, 579-80 (1988).

The issue presented with inflatable animals and large banners is whether objects and signs rise to the level of picketing conduct, and not simply free speech.  For years, the National Labor Relations Board has ruled that rats and large banners are elements of free speech that do not rise to the level of “picketing” conduct that would be evidence of unlawful secondary boycott conduct.  In its recent memo, the General Counsel sought to use a case out of Chicago — involving, ironically, a large inflatable cat — to go after this precedent.

In the Advice Memorandum (which was dated December 20, 2018, but was released on May 14, 2019), the General Counsel’s Office directed Region 13 to issue a Complaint against the International Brotherhood of Electrical Workers Local 134, finding that the union violated the “secondary boycott” provisions of the National Labor Relations Act by erecting a large, stationary banner proclaiming a labor dispute with the general contractor as well as a large, inflatable cat clutching a construction worker by the neck, near the entrance of the construction site.

The general contractor was “neutral” as it did not employ electricians directly.  Rather, the “primary” employer was a subcontractor on the job site.  It was undisputed that the union posted agents to hold the banner and used the inflatable cat at the entrance to the construction site, with the aim of forcing the neutral employer to cease using its electrical subcontractor.

The Region was directed to use the case as a vehicle to urge the Board to reconsider its decisions in a trio of decisions that were issued during the Obama administration, which found similar conduct protected and not unlawful “picketing” of a neutral employer under the Act:

  • A union’s posting of agents holding large, stationary banners proclaiming “labor dispute” and “shame on [the employer” in front of neutral businesses (Carpenters Local 1506 (Eliason & Knuth of Arizona), 355 NLRB 797 (2010));
  • A union’s use of a large, inflatable rat in front of a neutral employer was neither picketing nor otherwise coercive (Sheet Metal Workers Local 15 (Brandon Medical Center) (Brandon II), 356 NLRB 1290 (2011)); and
  • Erecting banners at 19 different neutral employers’ premises proclaiming “shame” on them (Carpenters Southwest Regional Councils Locals 184 & 1498 (New Star), 356 NLRB 613 (2011)).

After a lengthy review of the existing precedent, the Division of Advice concluded that the trio of cases struck the wrong balance between speech and picketing activity, and that the General Counsel believed the union’s “activity was tantamount to unlawful secondary picketing, and signal picketing that unlawfully induced or encouraged neutral employees to cease working.”  13-CC-225655 at 1, 14-17.  Alternatively, Advice urged the Region to argue that the conduct “at least constituted unlawfully coercive non-picketing conduct” in violation of the Act.  Id. at 1, 17-18.

Unfortunately, the cat will not actually catch the rat this time.  Since the Memorandum was initially distributed to the parties in late December, the parties settled the unfair labor practice charge.  As a result, this case will not serve as the test case to the Board the General Counsel is seeking.  However, this Memorandum clearly illustrates the General Counsel’s policy on this issue and how Regions likely will be required to interpret the Act and prosecute potential union conduct in similar circumstances.  Given the proliferation of inflatable rats, it may be only a matter of time until the Board gets its chance to review its position.

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Photo of Michael Lebowich Michael Lebowich

Michael J. Lebowich is a partner in the Labor & Employment Law Department and co-head of the Labor-Management Relations Group. He represents and counsels employers on a wide range of labor and employment matters, with a particular interest in the field of traditional…

Michael J. Lebowich is a partner in the Labor & Employment Law Department and co-head of the Labor-Management Relations Group. He represents and counsels employers on a wide range of labor and employment matters, with a particular interest in the field of traditional labor law.

Michael acts as the primary spokesperson in collective bargaining negotiations, regularly handles grievance arbitrations, assists clients in the labor implications of corporate transactions, and counsels clients on union organizing issues, strike preparation and day-to-day contract administration issues. He also has significant experience in representation and unfair labor practice matters before the National Labor Relations Board.

His broad employment law experience includes handling of race, national origin, gender and other discrimination matters in state and federal court. A significant amount of his practice is devoted to counseling clients regarding the application and practical impact of the full range of employment laws that affect our clients, including all local, state and federal employment discrimination statutes, the Fair Labor Standards Act, the Family and Medical Leave Act, and state labor laws.

Michael has substantial experience in a wide variety of industries, including entertainment, broadcasting, newspaper publishing and delivery, utilities and lodging. He represents such clients as The New York Times, BuzzFeed, ABC, the New York City Ballet, PPL, Pacific Gas & Electric, Host Hotels and Resorts, and The Broadway League (and many of its theater owner and producing members).  Michael also has significant public sector experience representing, among others, the City of New York and the Metropolitan Transportation Authority.

Michael is a frequent guest lecturer at Columbia Business School, the Cornell School of Hotel Administration, the New York University Tisch School for Hospitality, Tourism and Sports Management, and is an advisory board member of the Cornell Institute for Hospitality Labor and Employment Relations.

Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.