The National Labor Relations Board (NLRB) had invited briefs on bannering and displays of “Scabby the Rat,” the giant roadside inflatable rat (or other gruesome creature) used in many labor disputes. At issue is the conflicting labor law principles distinguishing between lawful publicity of a dispute and unlawful coercive conduct.
Strikes and PicketingThe National Labor Relations Act (NLRA) protects employees’ right to strike and the right to publicize that strike by peaceful picketing. However, a strike is not a prerequisite to having a picket line. Unions have the right to publicize their issues even without a strike.
Picket lines themselves have a peculiar legal pedigree. Although threatening or coercive behavior is prohibited, the law acknowledges an element of confrontation inherent in a picket line. A picket line’s purpose is to discourage employees and third parties from entering the picketed establishment. The U.S. Supreme Court has held that “picketing is a mixture of conduct and communication.” DeBartolo v. Florida Gulf Coast Building and Construction Trades Council, 485 U.S. 568 (1988). Although the law protects the right to cross a picket line, at least a threshold of fear created is understood by the presence of a lawful picket line. The Court said that picketing, or the conduct element, is the most persuasive deterrent. Unions sometimes direct their members not to cross a picket line, even if it means avoiding doing business with a company, or refusing to perform work. Members of the public sometimes choose not to enter an establishment if it means crossing the line. Employees have the right to decide for themselves.
Employees and unions are not limited to picketing to publicize their issues...
