Labor Unions, Free Speech, and Secondary Boycotts: "Scabby the Rat," New NLRB Positions

A live 90-minute CLE webinar with interactive Q&A


Wednesday, November 6, 2019

1:00pm-2:30pm EST, 10:00am-11:30am PST

Early Registration Discount Deadline, Friday, October 11, 2019

or call 1-800-926-7926

This CLE webinar will educate attorneys who represent labor and management about the First Amendment rights of labor unions and the limits on those rights. These issues have been highlighted in both legal and general news in the past few months because of the ongoing battle over whether unions may place "Scabby the Rat," a large inflatable animal, at picket sites.

Description

This CLE webinar will educate attorneys who represent labor and management about the First Amendment rights of labor unions and the limits on those rights. These issues have been highlighted in both legal and general news in the past few months because of the ongoing battle over whether unions may place "Scabby the Rat," a large inflatable animal, at picket sites.

Answering the question "Who is Scabby the Rat?" depends on perspective. A union attorney will explain that Scabby is an effective and protected medium of expression which allows a union to express displeasure with the actions of management symbolically.

A management attorney would emphasize Scabby's "sharp claws, perpetual snarl, and menacing demeanor" to explain that Scabby is meant to pressure management through an illegal secondary boycott, or argue that Scabby violates local zoning laws. (Big Sky Balloons considers Scabby to be a profitable product, selling for $2,600 to $9,300 each.)

All agree that Scabby presents cutting edge issues concerning the free speech rights of a labor union and the limitations on those rights under applicable labor law. The question turns on the NLRA's ban on secondary boycotts. What kind of union conduct constitutes picketing? What is threatening or coercive?

As explained by the NLRB, "The NLRA protects the right to strike or picket a primary employer--an employer with whom a union has a labor dispute. But it also seeks to keep neutral employers from being dragged into the fray. Thus, it is unlawful for a union to coerce a neutral employer to force it to cease doing business with a primary employer. That is only one aspect, however, of a complex legal picture."

Though the NLRB has in the past allowed Scabby at protests, changes in the composition of the Board may foretell a shift in that position. However, even if the NLRB changes its interpretation of the NLRA, the issue will remain in litigation. For example, in June 2019, a New York federal judge denied an NLRB attempt to enjoin the display of Scabby.

Listen as our nationwide panel of labor and employment experts identifies and examines the issues surrounding Scabby and union-free speech, as well as presents strategies for either rodent extermination, or species protection, depending on perspective.

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Outline

  1. Analysis of competing legal issues
    1. Right to free speech
    2. Prohibition on secondary boycotts
  2. Application of legal analysis to the ongoing situation: "Scabby the Rat"
  3. Future pathways
    1. Changes in NLRB actions (and possible changes back after 2020)
    2. Role of the courts

Benefits

The panel will review these and other critical matters:

  • Legal principles concerning free speech and boycotts
  • History and detail regarding Scabby
  • Practice going forward in a changing legal environment

Faculty

Devlin, Michelle
Michelle L. Devlin

Atty
Littler Mendelson

Ms. Devlin represents management in labor and employment law matters, including labor management relations under the...  |  Read More

Tuzzo, Adam-Paul
Adam-Paul John Tuzzo

Atty
Littler Mendelson

Mr. Tuzzo has successfully represented employers in labor arbitrations and matters before the National Labor Relations...  |  Read More

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