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Union Gets Pass on Scabby But Not Picketing Violation, NLRB Says

Sept. 28, 2021, 11:47 PM

The National Labor Relations Board ruled that a union unlawfully picketed a Chicago-area construction firm, but dismissed charges related to the union’s use of banners and the giant inflatable rodent known as Scabby the Rat at other demonstrations.

The case against International Union of Operating Engineers Local 150 was one of several that the NLRB’s Trump-era general counsel had queued up in his unsuccessful quest to get Scabby outlawed. The board on Tuesday applied its July ruling that affirmed unions’ right to display banners or protest balloons at businesses that don’t employ those unions’ workers.

The decision underscores Scabby’s safe place at labor protests while also highlighting a limitation on unions’ ability to pressure employers into recognizing them as workers’ bargaining representatives.

The case stems from Local 150’s pressure campaign on construction company Donegal Services LLC. Local 150 sought to represent Donegal workers after the company declined to voluntarily join the union’s existing multi-employer collective bargaining agreement in late 2017.

The union picketed at Donegal’s facility and featured Scabby during protests at companies with businesses connections to the construction outfit, like a limestone quarry and a landfill.

In Tuesday’s decision, the NLRB said that Local 150 violated federal labor law by picketing Donegal for more than the permissible amount of time. A union can only picket an employer for 30 days if it hasn’t filed a recognition petition and is aiming to force that company to recognize the union as workers’ exclusive bargaining agent.

But the board dismissed allegations related to the union’s protests at the other companies.

Local 150 General Counsel Dale Pierson said the ruling is important by making clear that the use of banners and inflatable protest symbols are protected by the First Amendment and the National Labor Relations Act. The decision marks the third time since July that the board has authorized Local 150’s use of Scabby.

Donegal’s lawyer, Scott Gore of Laner Muchin Ltd., declined to comment, saying he hadn’t had a chance to read the ruling.

The case is Int’l Union of Operating Eng’rs, Local 150, N.L.R.B., Case 13-CP-227526, Decision 9/28/21.

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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