Death to Scabby: Trump’s Labor Counsel Wants To Outlaw Inflatable Rat
Bloomberg Law, Jan. 22, 2019
Scabby the Rat stands 12 to 30 feet tall, teeth bared and claws raised aggressively, with hungry, bloodshot eyes. The giant rodent’s sickly-looking underbelly refers to the ‘scab’ pejorative sometimes used by unions against strikebreakers, making it a global symbol of worker protest.
Courts and the National Labor Relations Board have issued rulings over three decades holding that the inflatables are permitted under federal labor laws or are symbolic speech protected by the First Amendment. But the NLRB’s current general counsel, Peter Robb, has had enough of the rat—to the point that since April 2018 he’s been looking for a case he can use to exterminate it, according to sources familiar with his thinking.
“GC hates the rat,” a senior NLRB official who asked not to be named due to the sensitivity of the issue, told Bloomberg Law. Robb “wants to find it unlawful to picket, strike or handbill with the rat present.”
Robb and the agency didn’t respond to requests for comment. NLRB Chairman John Ring also declined to comment.
The general counsel took an unusual course in December when he directed agency attorneys to revive a complaint by an Illinois excavation company that the NLRB previously dismissed. Labor advocates say the push to make Scabby an outlaw is consistent with other recent moves by the general counsel favoring businesses.
“I think the general counsel has been attempting to generate cases to give this board the opportunity to opine on the Obama board’s overreach and overturning of decades of precedent,” Michael Lotito, a management lobbyist at Littler Mendelson’s Workplace Policy Institute, said. “People think everything he’s doing has some preordained agenda behind it, but maybe he’s just fulfilling his responsibility to bring controversial cases to the board for resolution.”
Rat Inspires Mixed Feelings
It’s not clear what about Scabby so gets under Robb’s skin. But before coming to the NLRB in November 2017, Robb spent years representing a large employer association in the elevator industry.
Unions for years have used the rat balloons to protest contractors who use non-union labor—known as secondary picketing, said Scott Gore, a management-side attorney at Laner Muchin. Gore represents the excavation company that filed the complaint the board revived.
“It’s one of those meddlesome things that all management lawyers really hate,” Marshall Babson, a former Democratic NLRB member who represents businesses for Seyfarth Shaw, told Bloomberg Law.
Lotito said business owners tend to be “offended” when worker groups use the rat inflatables. “They just fundamentally don’t think it’s consistent with the ‘f’ word—it’s just not fair.”
The Scabby character is well-known to labor advocates, having been around picket lines and protests since 1990. He even has 8,000 Twitter followers.
“Scabby has a venerable history in the labor movement by now,” said Charlotte Garden, a constitutional and labor law professor at Seattle University School of Law. “You can see it from far away, and one thing you’ll know when you see Scabby the Rat is there’s a labor dispute here.”
Advancing Different View
The National Labor Relations Act generally allows confrontational actions against a secondary employer while drawing a line at actions deemed “coercive,” in terms of forcing a business to stop working with another employer. The First Amendment grants a separate, much broader right to speak and communicate, by means as various as refusing to talk or spending money.
The board’s previous decision finding the Scabby balloons lawful came in a case where a federal court had already decided that even staging a mock funeral isn’t coercive under labor laws.
A Democrat-majority board under President Barack Obama also held that the First Amendment can apply to picketing activity.
Robb is now advancing a different view.
Board attorneys who filed for an injunction on behalf of Gore’s client acknowledge those earlier rulings. The union’s picketing “would be lawful” under current precedent, but those cases “were wrongly decided” and “should be overruled,” they wrote in a later motion.
A federal judge in Illinois is considering the board’s motion for an injunction against Local 150 of the International Union of Operating Engineers. The case was filed on behalf of Donegal Services LLC and Ross Builders, Inc.
Beyond First Amendment
A number of observers said the general counsel can rely on an argument laid out in the dissenting opinion in the case about the mock funeral.
“In it’s simplest terms, the argument was that it violates the secondary boycott provisions of the act to engage in that kind of behavior because it’s much more like picketing” than hand-billing or passing out flyers, according to Brian Hayes, a former NLRB member who co-authored the dissent.
The NLRB could prohibit certain kinds of worker protests by holding that use of the inflatables in conjunction with other acts amounts to “coercive’ picketing under the NLRA. Such a ruling could be overturned by a judge who interprets the statute differently.
The general counsel is also arguing that use of the inflatables is unlawful in most circumstances, even if a court decides to apply the First Amendment.
“Even if this conduct was not tantamount to picketing, it was nevertheless unlawfully coercive and not shielded by the First Amendment because the Union was engaged in labor and/or commercial speech, both of which are entitled to lesser constitutional protection,” attorneys said in the motion for an injunction in the excavation company’s case.
Labor advocates say that argument is unlikely to succeed.
“I think they’d be dead on First Amendment grounds because it’s been weaponized by the right to free businesses from regulation,” said David Rosenfeld, a labor attorney at Weinberg Roger & Rosenfeld. “The fight there lately has been about using the First Amendment to reduce regulations on the grounds that they impact speech—and labor can weaponize it to the same extent.”
“It’s totally possible that one of the great ironies of Robb’s tenure as general counsel is it could result in a Circuit Court or even the U.S. Supreme Court finding that the First Amendment protects union protests beyond what they’ve said before, including the rats and banners,” Garden said.