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Deflate the Rat? Labor Board Asks Court to Stop Union Protest

June 13, 2019, 8:10 PM

The federal labor board is asking a judge to bar Scabby the Rat, the inflatable union protest icon, from being used in picketing of three Staten Island supermarkets.

The National Labor Relations Board is seeking a temporary restraining order against Construction and General Building Laborers’ Local 79 that would bar all protests against the ShopRite stores for five days, including the use of inflatables. The NLRB is investigating whether the union’s protest is operating outside federal labor laws.

Scabby has been a frequent sight at union protests for several decades to call attention to labor disputes or the use of non-union labor. The inflatable rat is distinctive for its bloodshot eyes, sharp teeth, and scab-covered underbelly.

The court hearing in New York is the latest front in a long-running effort by Republican-controlled labor boards to rid the use of inflatables in union protests.

NLRB General Counsel Peter Robb, a Trump administration appointee, has aggressively pursued multiple cases involving inflatable rats, cockroaches and other creatures since taking office. He’s seeking a reinterpretation of federal labor laws that in certain cases would classify the use of inflatables as “unlawful coercion” of businesses that don’t directly employee protesting workers and overrule First Amendment considerations.

Robb declined Bloomberg Law’s request for comment, saying that he can’t discuss ongoing cases.

Bloomberg Law previously reported that Robb was seeking a case that would allow the NLRB to exterminate the use of Scabby and Scabby-like inflatables.

Protesting New Development

The Staten Island case began April 29 when Local 79 “erected multiple large inflatable rats adjacent to the entrance” of a ShopRite store owned by New Jersey businessman Kevin Mannix, according to a complaint issued by the NLRB.

Local 79 is protesting Mannix-owned ShopRite stores due to the opening of a Mannix ShopRite store in a new development built with non-union construction. The new shopping center will open in the fall and features nearly three dozen retailers.

The union has continuously protested at Mannix-owned stores with inflatable rats and an inflatable cockroach. It’s also distributed handbills urging customers to “tell Kevin Mannix to make the right choice” and pay area standard wages and benefits to workers on the new retail center.

“We are disappointed that Construction and General Building Laborers’ Union Local 79 has decided to use ShopRite as the location for its misguided protests, which have nothing to do with us and prompted our formal complaint with the National Labor Relations Board,” Mannix said in a statement to Bloomberg Law.

More Aggressive Stance

The actions by the General Counsel’s office are unlike anything union attorney Tamir Rosenblum has ever seen. He represents Local 79 in the Staten Island case.

Even when the NLRB attempted to limit the use of Scabby during the George W. Bush administration, it never went to court seeking an injunction, he said.

“It’s really, really, super aggressive,” Rosenblum said. “And we’re just scratching our head. Because what are you saying? The law is settled at this point, not just First Amendment law but the extant case that’s governing at the board.”

Rosenblum said he was confident that free speech and labor laws would be on his side. If the Supreme Court ruled that you can’t write broad laws restricting cross burning, how can inflating a giant rat be illegal, he asked.

An attorney representing the grocery stores where the protests are taking place said that the union’s tactics were a classic case of secondary boycott, where a union protests one employer because it does business with another company that’s engaged in a labor dispute.

“A neutral employer should not be dragged into labor disputes,” attorney Robert Pettigrew said. “And in doing so, you’re engaging in unlawful activity. So the tension there is the middle ground in terms of at what point is this conduct no longer protected by the First Amendment and becomes unlawful.”

Board to Get a Say

The injunction in the New York case comes as the NLRB board in Washington has separately begun considering an 11-month old case from Philadelphia that may provide the clearest chance yet for a GOP-controlled board to reinterpret labor law on how unions can protest.

The case involves a June 2017 protest outside of a Philadelphia Fairfield Inn. International Brotherhood of Electrical Workers Local 98 staged a multi-day protest outside the hotel after it underwent renovations using a non-union electrical contractor. The IBEW installed multiple 8- to 12-foot-tall rats outside the entrance of the hotel over the course of the protest and distributed fliers urging a boycott of the property.

The case went before an administrative law judge earlier this year. The judge, in his decision, called out Robb’s office for being focused on the inflatable rats.

The general counsel was “devoted to showing that the placement of the inflatable rats, along with the handbilling, constituted picketing or at least coercion,” Administrative Law Judge Robert Giannasi wrote in his decision. He rejected the general counsel’s arguments and left it to the board to decide if it wants to re-interpret the law.

The case is King v. Construction & General Building Laborers’, Local 79, E.D.N.Y., No. 1:19-cv-03496, 6/13/19.

To contact the reporter on this story: Andrew Wallender in Washington at awallender@bloomberglaw.com

To contact the editor responsible for this story: Terence Hyland at thyland@bloomberglaw.com