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Scabby the Rat Ruling Revives Free Speech Debate at Labor Board

July 23, 2021, 9:31 AM

A federal labor board ruling that green-lighted unions’ use of the inflatable protest symbol known as Scabby the Rat at demonstrations highlights longstanding tension between free speech protections and federal labor law restrictions.

While the First Amendment guarantees U.S. citizens expansive rights to protest where they wish, the Scabby case tested a section of the National Labor Relations Act that makes it unlawful for unions to “threaten, coerce or restrain” those who aren’t directly involved in a labor dispute—in this instance, an RV company that did business with a contractor accused of safety violations.

In a decision released Wednesday, two Republican members of the NLRB joined with Democratic Chair Lauren McFerran to side with free speech—and in the process, turned down an opportunity to limit forms of lawful demonstration for unions. They held that barring use of the gigantic red-eyed rodent balloon at an Indiana trade show as a sign of worker protest may have violated the First Amendment.

Republicans in the majority pointed out that the U.S. Supreme Court has tolerated much more offensive protests, such as flag burning, cross burning, and the Westboro Baptist Church’s anti-gay demonstrations at funerals.

“Surely, if the First Amendment protects this conduct, prohibiting an inflatable rat and stationary banners shaming a secondary employer would raise significant constitutional concerns in the eyes of the Court,” NLRB Republican members John Ring and Marvin Kaplan wrote.

Drawing the Line

Yet the line between lawful protesting and restricted picketing isn’t always clear.

Picketing isn’t protected in the same way as other speech; courts view it as a more aggressive tactic designed to halt an employer’s day-to-day operations, usually during a strike. As such, the NLRA restricts picketing of a neutral third party.

In the Scabby ruling, the board found the union’s display didn’t constitute a picket on its own—basically because Scabby’s use wasn’t threatening enough to be considered coercive. In the decision, the board noted that the two union officials present at the display didn’t shout at or confront trade-show patrons.

Furthermore, wading into a thorny First Amendment issue could have invited review from federal courts.

If the NLRA’s restrictions on secondary picketing were written in a way that prohibits protected speech, then picketing restrictions may be unconstitutional in their entirety, said Risa Lieberwitz, a professor of labor and employment law at the Cornell University School of Industrial and Labor Relations.

“So this saves the statute,” Lieberwitz said, adding: “You avoid having to address the First Amendment issue.”

The debate over free speech at labor gatherings isn’t new, nor is picketing the only area where free speech gets murky in the labor context.

Last year, a federal appeals court in San Francisco declined to hear a union’s First Amendment challenge to picketing restrictions, leading a dissenting judge to say unions’ speech is relegated to “second-class constitutional status.”

The NLRB has also gone after employers for threatening workers via social media, which has given rise to free speech objections, including an ongoing case in federal appeals court in Philadelphia.

The NLRB cited Ben Domenech, publisher of the conservative online magazine The Federalist, last year for tweeting he would send workers “back to the salt mine” if they tried to unionize.

Domenech is appealing the NLRB’s finding that his tweet constituted an unlawful threat, arguing that his speech was his own viewpoint protected under the First Amendment.

Domenech’s lawyer, Aditya Dynar, said in a November statement that the NLRB’s ruling “disregarded sworn employee statements saying that they perceived the tweet as just a joke”

In a brief filed to the U.S. Court of Appeals for the Third Circuit, the NLRB wrote that courts “long ago rejected the argument that an employer can avoid a finding of coercion by simply calling its threat a joke.”

To contact the reporter on this story: Ian Kullgren in Washington at ikullgren@bloombergindustry.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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