WASHINGTON—Scabby the Rat is protected by the First Amendment even when directed at a neutral party, the National Labor Relations Board ruled July 21.
In a 3-1 vote, the NLRB held that displaying the 12-foot inflatable rodent with gutter-gray skin and red inflamed-sore eyes qualified as “expressive conduct,” not a threat, and thus did not run afoul of the Taft-Hartley Act’s ban on secondary boycotts.
Mason Tenders District Council general counsel Tamir Rosenblum told LaborPress he was happy that the NLRB had ruled in favor of the union involved, but “disappointed that the board isn’t making free-speech principles applicable to labor.”
“Why is a frickin’ balloon full of hot air even a question?” he asked.
The ruling dismissed a complaint filed in 2018 by Lippert Components, a recreational-vehicle parts manufacturer, against International Union of Operating Engineers Local 150. The union had posted Scabby near the entrance to the parking lot for an RV trade show in Elkhart, Indiana, along with two banners reading “SHAME ON LIPPERT COMPONENTS, INC., FOR HARBORING RAT CONTRACTORS” and “OSHA Found Safety Violations Against MacAllister Machinery, Inc.”
Lippert regularly rented equipment from MacAllister, which was in a dispute with Local 150 over safety. The company filed an unfair labor practice complaint against Local 150 after its in-house lawyer described the inflatable rat as “quite menacing in its appearance” and “intended to be scary.”
NLRB Administrative Law Judge Kimberly Sorg-Graves dismissed the complaint in July 2019, stating that “the Board has affirmed cases involving similar-looking inflatable rats and found that they were not likely to frighten, disturb, or prevent business from occurring.” Lippert appealed that ruling to the national board.
The national board’s decision also covers Scabby’s feline sibling, Fat Cat, which sports a 19th-century plutocrat’s cigar, vest, and potbelly, and clutches a moneybag in one paw and a construction worker in the other.
The decision turned on where the rat stands on the spectrum between handing out flyers directed at a neutral employer, which NLRB and court precedents have held is free speech, and picketing that employer, which is proscribed as confrontational.
NLRB chair Lauren McFerran, the one Democrat on the board, stated that previous cases had set a precedent that merely “displaying banners or an inflatable rat near the entrance of a neutral employer” does not “threaten, coerce, or restrain” the neutral party in violation of the Taft-Hartley Act. Trump appointees Marvin E. Kaplan and John F. Ring both concurred, but argued that while the rat was legal as “mere persuasion,” the board could forbid other actions by unions even if they didn’t directly disrupt the secondary employer’s business.
Trump appointee William J. Emanuel dissented, arguing that the rat was “a dominating physical presence” and was “not meaningfully distinguishable” from picketing, coercive because it “sets up a confrontation by creating a line that is not to be crossed.”
The NLRB is “defaulting into a different standard for labor,” Rosenblum says. Labor speech’s level of persuasiveness isn’t the relevant question, he argues: Current political-speech precedents hold that it’s legal for the Ku Klux Klan to burn a cross, as long as it doesn’t make a direct threat to any other person.
“This shows how marginalized labor is, that the Klan has more free speech,” he says.
The NLRB dismissed several similar complaints against unions earlier this month. Peter Robb, its Trump-appointed general counsel who was fired by President Joseph Biden on Jan. 20, had made stamping out Scabby something of a personal crusade. In 2019, Robb sought an injunction against Laborers Local 79 to stop it from protesting outside the site of a Staten Island supermarket being constructed with nonunion labor. He claimed that it was illegal for the union to use the rat, other balloons of any kind, chants, whistles, or a bullhorn during a rally on a public sidewalk.
Rosenblum was one of the lawyers representing Local 79 in that case.
The Texas AFL-CIO praised the ruling. “If you’ve seen Scabby or Fat Cat, you know how quickly they inflate — and how quickly they deflate their targets by creating an environment for protest by working people,” it said in a statement.