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Scabby the Rat Can Join Union Protesters, Divided NLRB Says (1)

July 21, 2021, 6:25 PM; Updated: July 21, 2021, 9:21 PM

The National Labor Relations Board approved a union’s use of a large, fanged, red-eyed rodent balloon known as Scabby the Rat at a protest, rejecting a bid by the agency’s Trump-era top lawyer to exterminate the rat.

The NLRB’s 3-1 ruling Wednesday allows unions to continue using Scabby and similar balloons in demonstrations at businesses that don’t employ those unions’ workers. The board turned aside former General Counsel Peter Robb’s argument that featuring the inflatable rat at such secondary protests is an unlawful attempt to threaten and coerce neutral parties.

The decision marks a major step in closing out Robb’s personal crusade against Scabby, an iconic symbol at union demonstrations that he was said to “hate.” Acting NLRB General Counsel Peter Sung Ohr, who was tapped to lead the agency’s legal arm after Robb’s Inauguration Day ouster, asked the board in February to shut down the Scabby case as well as a similar one involving the rat, calling them a “waste” of agency resources.

Several federal court decisions—including opinions from at least two circuit courts—have said unions’ use of inflatable rats at labor protests is protected by the First Amendment. The board during the Obama administration also signed off on the legality of protest balloons.

Scabby’s trip to the NLRB stems from an International Union of Operating Engineers Local 150’s demonstration in 2018 near the entrance of an RV trade show in Elkhart, Ind. Local 150 had a labor dispute with a company that did business with RV supplier Lippert Components Inc. The company, which now goes by Lippert, brought an unfair labor practice charge against the union.

The NLRB invited the public to weigh in on the case last fall. The board received more than 20 briefs, with a large share coming from unions representing construction workers.

Bipartisan Majority

Republican NLRB members John Ring and Marvin Kaplan joined Chair Lauren McFerran, the board’s sole Democrat, to dismiss the case Wednesday. The majority said that Local 150’s use of both Scabby and two stationary banners was lawful under the National Labor Relations Act.

McFerran wrote a concurrence saying NLRB precedent demanded the dismissal. She cited the board’s 2010 ruling in Carpenters Local 1506 (Eliason & Knuth) and its 2011 decision in Sheet Metal Workers Local #15 (Brandon Regional Hospital), which upheld unions using banners and a rat balloon at secondary demonstrations, respectively.

Ring and Kaplan said in a second opinion that the case had to be tossed to avoid conflicts with the First Amendment, noting that the U.S. Supreme Court has protected more offensive displays than a balloon rat, such as flag burning and the Westboro Baptist Church’s funeral protests. But they disagreed with some aspects of board law as improperly narrowing federal labor law’s shields against coercion.

Member William Emanuel, a Republican who’s set to leave the board near the end of August, dissented. He said the union’s use of Scabby and banners at the trade show violated federal labor law.

Charles Kiser, an associate general counsel with Local 150, said the union is “obviously elated for Scabby.” The board took longer to rule in the case than the union had anticipated, which might have been a product of the time needed to form the bipartisan majority, he said.

Lippert didn’t immediately respond to telephone and email requests for comment.

The case is Int’l Union of Operating Eng’rs, Local Union No. 150, N.L.R.B., No. 25-CC-228342, decision 7/21/21.

(Updated with additional reporting throughout. )

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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