By: Nicholas Wogan
Since its creation in 1989, the inflatable character known as Scabby the Rat has been an enduring symbol to express labor unions’ dissatisfaction with their employers. However, a recent legal effort has threatened to put an end to these displays, wherein proponents argued that the displays are unfairly coercive to employers and therefore a violation of the National Labor Relations Act.[1]
Involved in this effort was Peter Robb, Trump-appointed former counsel of the NLRB who was fired by President Biden.[2] Robb’s termination by the President after refusing to resign was a historical first and suggested a political shift within the NLRB.[3] The success or failure of this recent challenge to popular union displays would help measure the extent of that shift.
On July 21st, in International Union of Operating Engineers, Local Union No. 150 (Lippert Components, Inc.), the NLRB upheld precedent and dismissed the complaint in its 3-1 decision, defending unions’ right to use Scabby the Rat and similar displays.[4] In separate concurring opinions, the Board relied on its previous decisions in Eliason & Knuth and Brandon Regional Medical Center, which established that similar displays were constitutionally protected free speech and were therefore not in violation of the National Labor Relations Act.[5] In his opinion, Chairman McFerran described what he saw as a central flaw of the dissent’s reasoning: “Member Emanuel’s contention that in this case non-speech intimidation predominates over any expressive element . . . is simply contrary to overwhelming court precedent, which protects a wide range of expressive activity, including offensive speech.”[6]
Specifically, this case centered on labor unions’ use of Scabby outside a tradeshow to antagonize Lippert Components, a “secondary” employer that did business with “primary” employer MacAllister Machinery.[7] The unions hoped to pressure Lippert into ending its business relationship with MacAllister.[8] NLRB members Kaplan and Ring noted in their opinion that, although section 8(b)(4) of the NLRA sought to protect secondary employers from undue coercion or threats by unions, past Supreme Court decisions made clear that this section was not to be given “broad sweep,”—particularly when First Amendment rights were in conflict.[9] Members Kaplan and Ring also pointed out how tradeshow attendees entering the venue were not threatened or confronted by union protesters, countering opposing arguments that the display was threatening.[10] Moreover, they explained that describing Lippert management as a “rat” was mere persuasion rather than intimidation, however embarrassing the company might find it.[11]
This decision represents a clear win for labor unions, providing greater freedom for unions to socially pressure not only their direct employers, but also other companies within their employers’ ambit.
[1] See Sarah Jones, Big, Ugly Hero to Workers Spared Execution, Article in Intelligencer, N.Y. Mag. (July 21, 2021), https://nymag.com/intelligencer/2021/07/nlrb-rules-that-scabby-the-rat-may-live.html.
[2] Id.
[3] See Andrey T. Tomkiw & M. Abigail Graves, Biden Fires NLRB General Counsel Peter Robb, Nat’l L. Rev. (Jan 26, 2021), https://www.natlawreview.com/article/biden-fires-nlrb-general-counsel-peter-robb.
[4] Int’l Union of Operating Engineers, Loc. Union No. 150 a/w Int’l Union of Operating Engineers, Afl-Cio & Lippert Components, Inc., 371 N.L.R.B. No. 8 (July 21, 2021).
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
