* NLRB yesterday…
In a decision issued today in Lippert Components, Inc. 371 NLRB No. 8 (2021), the National Labor Relations Board found that a union did not violate the National Labor Relations Act by displaying a 12-foot inflatable rat with red eyes, fangs, and claws (“Scabby the Rat”) and two large banners, one targeting a neutral employer (Lippert Components), near the public entrance to a trade show. The prior General Counsel had alleged that the display of these items was unlawfully coercive, arguing that the Board should overrule precedent. The Board had earlier issued a notice and invitation to file briefs on that question.
Three members of the Board joined in an opinion dismissing the complaint. In her separate concurrence, Chairman McFerran expressed her belief that the outcome of this case was required by Board precedent. In their separate concurrence, Members Kaplan and Ring agreed that the complaint must be dismissed here to avoid creating a possible conflict with the First Amendment, but expressed disagreement with some aspects of prior precedent. Member Emanuel, dissenting, would have found the banner and rat display to violate the Act.
The decision is here.
* The case was filed against Local 150 of the Operating Engineers. From the union…
Wednesday afternoon, the National Labor Relations Board (NLRB) released a 3-1 decision dismissing the Lippert Components lawsuit that sought to limit unions’ use of “Scabby the Rat” and other inflatables in labor disputes.
The case initiated over the International Union of Operating Engineers Local 150’s use of an inflatable rat to protest Lippert’s Components at the entrance of a trade show in September 2018. An NLRB administrative law judge dismissed the case in 2019, but former NLRB General Counsel Peter Robb intervened, believing that the use of inflatable rats is unlawfully coercive and that NLRB and court precedent should be overturned to restrict their use. Robb, appointed by former President Trump, initiated and revived several lawsuits against unions who had used inflatable rats in strikes and public demonstrations.
Wednesday’s decision upheld Scabby’s longstanding free speech protection, stating that Lippert’s opinion that the display was “embarrassing does not outweigh the First Amendment rights of the union.” Over the past 20 years, federal courts and the NLRB have found that inflatable rats are protected tools of free speech and are afforded First Amendment rights.
“We are pleased with this decision, and have believed since the outset that Scabby’s rights would be affirmed, as they have been time and time again for 20 years,” said James M. Sweeney, President-Business Manager of the International Union of Operating Engineers Local 150. “An attack on Scabby the Rat is an attack on workers’ right to free speech, and we must all stand united against such attacks. The use of these rats draws public attention to employers’ crimes and mistreatment of their employees, and so it is no surprise that powerful interests would want to ban their use, but we will never stop fighting to protect workers’ voices – or Scabby’s.”
Local 150 pioneered the use of the inflatable rat, commissioning the very first one in 1988. Local 150 member Lou Mahieu was awarded a jacket for submitting the name “Scabby” in a 1989 naming contest, held by the union in its member newspaper.