NLRB Deflates Fat Cat and Scabby
By Kevin M. Mosher • May 23, 2019
If you have not seen them before, Fat Cat and Scabby the Rat are symbols unions often use to demonstrate that a company and its management team (the fat cat) are lining their pockets with their workers’ efforts or, in the case of Scabby, employing nonunion workers (scabs) instead of union workers. Since the 1990s both have been symbols synonymous with union tactics to pressure companies into paying higher wages and benefits to its workers, to recognize the union, or to pressure nonunion workers into not crossing picket lines. In general, they are pretty effective symbols at illustrating the union’s frustration with the targeted company.
A legal issue arises whether the use of these symbols at nonunion sites constitutes picketing. Unions regularly argue the use of these symbols is protected free speech. Under the NLRA, however, if the activity is considered picketing it may be unlawful if it is deemed a secondary boycott – i.e. picketing one employer to force a different employer to cease working with the targeted company – or signal picketing, which seeks to unlawfully induce or encourage nonunion employees to stop working with the targeted company.
In the situation recently addressed by the NLRB, the union notified one company (Summit Design and Build) it would picket and/or handbill at a location where it was building a residential complex because one of Summit’s sub-contractors (Edge Electrical) was not paying standard area wages. A week later the union placed a large sign reading “Labor Dispute: Shame Shame” above “Summit Design and Build.” Nearby was a large inflatable cat squeezing a pretend electrical worker ….
During the Obama Administration, the NLRB considered the use of Fat Cat and Scabby to be protected speech, by narrowing the definition of what was picketing and, therefore, what might be unlawful picketing. In the Obama NLRB decisions the agency found picketing was limited only to situations where the union’s agents carried picket signs while patrolling. In a recent advice memo, the NLRB’s General Counsel diverged from the Obama NLRB decisions and this narrow definition of picketing, finding instead that the use of Scabby the Rat and the Fat Cat are, in fact, instances of picketing andpotentially unlawful.
While this advice memo indicates a serious shift away from the NRLB’s earlier position on picketing it is not the final say on the subject. Ultimately the NLRB will likely take this issue up and make a substantive ruling instructing its Regional Directors on how they should view the union’s use of Scabby the Rat and Fat Cat.
Scabby the Rat!
Thompson Coe and myHRgenius Tip of the Week is not intended as a solicitation, does not constitute legal advice, and does not establish an attorney-client relationship.