Bloomberg Law
July 2, 2019, 4:17 PM

NYC Scabby Protest Survives Court Challenge by Labor Board

Andrew Wallender
Andrew Wallender

A rotating menagerie of inflatable rats and an inflatable cockroach can continue to stand outside a trio of Staten Island grocery stores as part of a union’s protest, a federal judge ruled.

The National Labor Relations Board, the federal agency that enforces U.S. labor laws, had asked the court to issue a preliminary injunction that would put an end to a monthslong protest by a New York construction union. The labor organization is speaking out against the use of nonunion labor in the building of a new ShopRite grocery store.

U.S. District Judge Nicholas Garaufis denied the request July 1, siding with LIUNA affiliate Construction & General Building Laborers Local 79.

“As a threshold matter, the court notes that Local 79’s ‘peaceful use of stationary, inflatable rats and a cockroach to publicize a labor protest is protected by the First Amendment,’” Garaufis wrote in his decision.

The judge went a step further, warning the NLRB that a federal court enjoining expressive conduct would be “untenable” and “raise serious constitutional concerns.”

Union attorney Tamir Rosenblum said Local 79 agreed with the decision and found it “really well-reasoned.”

An NLRB representative couldn’t be immediately reached for comment.

NLRB General Counsel Peter Robb, a Trump administration appointee, is seeking a reinterpretation of federal labor laws that in certain cases would classify the use of inflatables, including the iconic Scabby the Rat, as “unlawful coercion” of businesses that don’t directly employ protesting workers and overrule First Amendment considerations.

No Violation Found

The federal judge refused to find merit in the NLRB’s injunction request, saying that facts suggest Local 79 isn’t in violation of the National Labor Relations Act.

The union didn’t engage in picketing or coercive activity, Garaufis said. Picketing a secondary employer is forbidden under federal labor laws and the NLRB sought to get the union’s actions recognized as such.

Despite the labor board’s federal court setbacks, the case is still working its way through the agency. An administrative law judge is expected to look at the case in mid-July, according to Rosenblum.

After an ALJ reviews the case, it can then be brought before the board in Washington for review. Board review could yield a change in interpretation of how federal labor laws apply to inflatable animals during secondary protests.

Another case involving the use of an inflatable rat in Philadelphia is already before the board and could be looked at as soon as this summer, making new board law possible even sooner.

Uphill Battle for NLRB

Garaufis’ decision rebutting the NLRB’s case is likely to have only made it more likely that an ALJ would side with the union, Rosenblum said.

The NLRB is now going to go against the union with a set of facts that a judge told them isn’t even reasonable, according to the union attorney.

“The board can decide what it wants,” Rosenblum said. “This judge has basically written a decision that very clearly elucidates why it is that this project that the Trump general counsel is engaged in is just manifestly illegal under the constitution.”

Last month, Senior District Judge Frederic Block denied the NLRB’s effort to get a temporary restraining order against Local 79, adding another defeat for the agency’s general counsel. The judge didn’t issue a memorandum explaining how he reached his conclusion.

The case is King v. Construction & General Building Laborers’ Local 79, E.D.N.Y., No. 1:19-cv-03496, Memorandum & Order Issued 7/1/19.

To contact the reporter on this story: Andrew Wallender in Washington at

To contact the editors responsible for this story: Cynthia Harasty at; Martha Mueller Neff at