Scabby the Rat lives to see another day.
The beloved inflatable rodent, a staple of U.S. union protests for decades, survived a near-extermination on Wednesday when the National Labor Relations Board ruled that Scabby’s use in labor disputes was legal.
The case before the NLRB could have effectively barred Scabby’s presence outside the companies on the grounds that the rat was so off-putting and intimidating that he was “illegally coercive.” But the board ultimately ruled in favor of the International Union of Operating Engineers, Local 150, which deployed the 12-foot rat outside of an Indiana RV trade show in 2018.
The target of the union protest, recreational vehicle parts supplier Lippert Components, has filed a complaint with the labor board over bad publicity by Scabby. But in a 3-1 decision, the board decided to dismiss the complaint, saying doing otherwise could infringe the union’s First Amendment rights. (The board usually has five members, but one seat is vacant.)
“[T]Courts have always considered inflatable banners and rats to be the realm of protected speech, rather than intimidation, ”Board Chair Lauren McFerran wrote in her decision, saying her position was consistent to the precedent of the NLRB.
The decision appears to end the war against Scabby that began under former President Donald Trump.
Republican board members often side with the business in contentious cases, but McFerran was joined by two GOP members in her opinion: Marvin Kaplan and John Ring. The other board member, Republican William Emanuel, dissented, arguing that Scabby’s use violated national labor relations law.
The decision appears to end the war against Scabby that began under former President Donald Trump. Trump-appointed NLRB general counsel Peter Robb had wanted to ban the use of Scabby in certain circumstances. The Advocate General acts as a quasi-prosecutor and brings cases on behalf of unions and employers to the board.
In the Lippert case, Robb argued that the deployment of Scabby was illegal because Lippert Components was a “neutral” employer, meaning that union members did not work for Lippert but for a company that had a relationship with Lippert. In Robb’s argument, posting Scabby at the motorhome show amounted to a “secondary boycott. “
Due to the importance of the case, the labor council invited interested parties to submit briefs arguing for or against Scabby’s legality.
The unions were concerned not only about their beloved Scabby, but also the broader First Amendment rights during union protests. Robb had filed at least one other complaint against a union for the use of an inflatable rat.
In an unprecedented move, President Joe Biden fired Robb at the behest of the unions on his first day in office. Biden replaced Robb on a temporary basis with Peter Sung Ohr, a longtime NLRB official. Ohr quickly decided to withdraw the Scabby-related complaints pursued by his predecessor, saying it was a “waste of valuable agency resources. “
Biden’s candidate to replace Ohr as general counsel, labor lawyer Jennifer Abruzzo, was confirmed by the Senate on Wednesday in a 51-50 vote, with Vice President Kamala Harris playing the decisive role. Republicans were furious that Biden ousted Robb before Robb’s term ended, and not a single GOP senator voted in favor of appointing Abruzzo as general counsel.
Biden has already appointed two new members to the five-person board and may cede control to the Democrats by the end of the summer.
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