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Scabby the Rat Heads to Showdown as NLRB Weighs Protest Limits

Oct. 27, 2020, 8:16 PM

The National Labor Relations Board will review the circumstances under which unions can display a massive inflatable rat at protests, despite court findings that its use is protected by the First Amendment.

The announcement follows a campaign against “Scabby"—a symbol used by unions at demonstrations for decades—by NLRB General Counsel Peter Robb. The general counsel, who is said to loathe the image of the rabid rodent with bloodshot eyes and bared teeth, has advocated for banning its use when workers are protesting someone other than their direct employer.

In a party-line vote, NLRB said it will solicit public briefs on whether it should restrict the use of Scabby through an active case, International Union of Operating Engineers, Local Union No. 150. An administrative law judge in July ruled that the union didn’t unlawfully coerce workers when it displayed a 12-foot inflatable rat and two large protest banners on public property, a view that’s been affirmed by federal courts in similar cases.

The case involves a union in Elkhart, Ind., that used Scabby to protest outside an RV show in 2018. The demonstration was seemingly aimed at Lippert Components, an RV supply company, over alleged safety violations involving a contractor. While there was some disagreement over whether the union could picket both companies—and the host of the RV show—the ALJ found that the displays “in no way caused a confrontation” that would have wrongfully intimidated customers.

‘Unlawful Secondary Picketing’

In 2018, Robb’s office called for a complaint against a Chicago-area union for using Scabby at a construction-site protest. The union in that case wasn’t protesting the construction company itself, but an electrical contractor who allegedly wasn’t paying standard wages and benefits for the area.

Because the union didn’t have a primary labor dispute with the construction company, use of the rat “was tantamount to unlawful secondary picketing,” Robb’s office argued. The General Counsel’s office also argued that the demonstration—which included the image of a fat cat clutching a construction worker by the neck—was “unlawfully coercive” to other workers.

Robb’s position is at odds with opinions from at least two circuit courts that have said unions’ use of inflatable rats at labor protests is constitutionally protected free speech. The board during the Obama administration also signed off on the legality of protest balloons.

Last year, a federal judge ruled against an NLRB request to ban use of an inflatable rat at a protest of three supermarkets in Staten Island, N.Y. It’s unclear whether the board’s Republican majority will follow Robb’s request to limit use of the rat on a larger scale.

Scabby has been a regular presence on picket lines for at least 30 years, often in the form of a towering parade-like balloon. Its official Twitter feed has more than 8,000 followers.

The likeness is not only directed at employers, but also at workers who choose not to participate in union protests. The rodent’s scabbed underbelly references non-union workers who replace workers on strike, pejoratively known as “scabs” in union circles.

The call for briefs was backed by the board’s three Republican members: William Emanuel, Marvin Kaplan, and Chairman John Ring. Democratic member Lauren McFerran dissented.

The case is International Union of Operating Engineers, Local Union No. 150, N.L.R.B., 25-CC-228342, 10/27/20.

With assistance from Robert Iafolla

To contact the reporter on this story: Ian Kullgren in Washington at ikullgren@bloombergindustry.com

To contact the editors responsible for this story: Bernie Kohn at bkohn@bloomberglaw.com; John Lauinger at jlauinger@bloomberglaw.com

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