Trump NLRB poised to exterminate Scabby the Rat

The National Labor Relations Act (NLRA) has special provisions that limit the pressure tactics a union can use in trying to force an employer to recognize the union. One of the major limitations is a prohibition against unions attacking companies that are uninvolved in the labor dispute and don't have a dog in the hunt.

Prior incarnations of the National Labor Relations Board (NLRB) have decided that a union's deployment of large inflatable rats and banners against noninvolved "secondary" employers usually doesn't run afoul of this prohibition. These well-worn but still-catchy union tactics are intended to make members of the public think twice before patronizing the secondary employer and thereby pressure it to drop the primary employer. Recently, however, the Trump NLRB has made a move—precipitated by a motion from its conservative General Counsel—suggesting that a change is in the wind, at least until the Trump NLRB loses its majority.

Background

While unions under the NLRA generally have a right to engage in a broad range of concerted activities, the rules are more circumscribed and limited when unions seek to represent workers at nonunion employers. The key statutory provision in that context is NLRA Section 8(b)(4), which protects neutral secondary employers against union conduct aimed at coercing them—through a "secondary boycott"—to cease doing business with the primary employer.