Editor's note: The following is excerpted from a longer article in the NJSBA New Jersey Labor and Employment Law Quarterly, February 2020 issue. To read the complete article and others, log in to the Labor and Employment Law Section here.
A few reflections on the weaponization of the First Amendment in public sector labor law and its potential re-weaponization
By Hop T. Wechsler
The irony is that, if opponents of labor have weaponized the First Amendment by expansion in the public sector, the reverse has been true in the private sector, where the scope of First Amendment protection of labor rights has become narrower. For example, Seattle University School of Law professor Charlotte Garden has observed that “labor picketing receives less protection [from the Supreme Court] than other picketing…not because other types of picketing are somehow less coercive, but instead because labor picketing is economic and not of ‘broader social concern.’”[i] Unions are different, in the private as much as the public sector.
Scabby the Rat, the inflatable rat balloon popular at labor protests for almost 30 years,[ii] reflects this narrower First Amendment protection for unions but simultaneously offers an opportunity to re-weaponize the First Amendment for, rather than against, workers. Section 8(b)(4)(ii)(B) of the NLRA states that “it is an unfair labor practice for a labor organization or its agents…to threaten, coerce, or restrain a person engaged in commerce…forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person[.]”[iii] As a result, traditional picketing—carrying picket signs, patrolling back and forth—near a secondary employer’s work site can violate Section 8(b)(4)(ii)(B) if it is deemed to be coercive. Secondary boycotts are thus treated differently in a labor context, where they are unlawful, than in a non-labor context, where they may be protected.[iv]
The inflatable rat is typically deployed at or near secondary employers’ work sites, particularly construction sites using non-union workers. As the NLRB recently explained, “[T]hese types of inflatables are specific signals to the public, to [secondary] employees, that this employer is engaged in an unfair labor practice or has a dispute with [the union] and that is a signal to union members not to go in, and so the union has used rats as a symbol to the public rather than require all of their employees to come and handbill.”[v] “Signal picketing,” a type of picketing by means of which a union “intentionally, if implicitly, directs members not to work at the targeted premises,”[vi] is also unlawful. But symbolic speech is constitutionally protected.[vii]
Is the inflatable rat an unlawful secondary boycott and/or signal picketing or is it constitutionally protected symbolic speech? As always, it depends. In the words of one law review article:
The display of giant rat balloons, meant to pressure neutral employers, may itself amount to the type of picketing prohibited by the secondary boycott rule…On the other hand, the inflatable rat may deserve First Amendment protection when erected on public property. This determination is based on the unique nature of the rat balloon as a tool exclusively used in protests, typically short in duration, and not causing any danger.[viii]
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[i] Charlotte Garden, Labor Values are First Amendment Values: Why Union Comprehensive Campaigns are Protected Speech, 79 Fordham L. Rev. 2617, 2637 (May 2011) (citing Carey v. Brown, 447 U.S. 455, 465-66 (1980) (rejecting an Illinois state statute that permitted labor picketing more broadly than other types of picketing and distinguishing labor picketing from “[p]ublic issue picketing,” which was “an exercise of…basic constitutional rights in their most pristine and classic form” and of “broader social concern”)).
[ii] Sarah Jaffe & Molly Crabapple, The History of Scabby the Rat, Vice (Mar. 7, 2013), available at https://www.vice.com/en_us/article/avnmgp/the-history-of-scabby-the-rat. See also Polly Mosendz, The Constitutional Right of Scabby the Rat, The Atlantic (Oct. 30, 2014), available at https://www.theatlantic.com/politics/archive/2014/10/scabby-the-rat-first-amendment/382131/.
[iii] 29 U.S.C. § 158(b)(4)(ii)(B).
[iv] See, e.g., N. A. A. C. P. v. Claiborne Hardware Co., 458 U.S. 886, 912-13 (1982) (upholding secondary boycott against white merchants by civil rights organizations, noting that “[s]econdary boycotts and picketing by labor unions may be prohibited…[but] [w]hile States have broad power to regulate economic activity, we do not find a comparable right to prohibit peaceful political activity such as that found in the boycott in this case”).
[v] King v. Constr. & Gen. Bldg. Laborers’ Local 79, Laborers Int’l Union of N. Am., 393 F. Supp. 3d 181, 199 (E.D.N.Y. 2019) (quoting Petitioner’s oral argument). See also Laborers’ E. Region Org. Fund & the Ranches at Mt. Sinai Laborers’ E. Region Org. Fund & Concrete Structures, Inc., No. 29-CC-1422, 2005 WL 1467350 (June 14, 2005) (“[T]he rat symbolizes that a nonunion company is working at the targeted jobsite…the rat indicates to the trades working at a jobsite that there is a ‘labor problem’ there”). Of course, the name “Scabby” also refers to nonunion labor. See, e.g., Old Dominion Branch No. 496, Nat. Ass’n of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264, 268 (1974) (citing Jack London’s “The Scab”) (“A scab is a two-legged animal with a corkscrew soul, a water brain, a combination backbone of jelly and glue. Where others have hearts, he carries a tumor of rotten principles…Esau was a traitor to himself; Judas was a traitor to his God; Benedict Arnold was a traitor to his country; a SCAB is a traitor to his God, his country, his family and his class”).
[vi] Carpenters Local 1506 (Eliason & Knuth of Arizona, Inc.), 355 NLRB 797, 805 (2010).
[vii] Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293-94 (1984) (“Expression, whether oral or written or symbolized by conduct, is subject to reasonable time, place, or manner restrictions…Symbolic expression…may be forbidden or regulated [only] if the conduct itself may constitutionally be regulated, if the regulation is narrowly drawn to further a substantial governmental interest, and if the interest is unrelated to the suppression of free speech”).
[viii] Thomas Moyher & Robert T. Szyba, From the Rat to the Mouse: How Secondary Picketing Laws May Apply in the Computer Age, 26 Hofstra Lab. & Emp. L.J. 271, 278 (Fall 2008).