A win for Labor. The times they are a-changing. Eric
Daily Business
Briefing<https://www.nytimes.com/live/2021/07/21/business/economy-stock-market-news?action=click&pgtype=Article&module=&state=default®ion=header&context=breakout_link_back_to_briefing>
The National Labor Relations Board grants a reprieve to inflatable rats.
[https://static01.nyt.com/images/2019/07/30/nyregion/21economy-briefing-rat/merlin_99087196_8d13a36f-c81a-4e0a-ac1c-776ab97112ee-articleLarge.jpg?quality=75&auto=webp&disable=upscale]
[The National Labor Relations Board ruled that the use of oversized, inflatable
rats is a permissible effort to persuade bystanders. One of the rats was
featured in a Labor Day parade in New York.]
The National Labor Relations Board ruled that the use of oversized, inflatable
rats is a permissible effort to persuade bystanders. One of the rats was
featured in a Labor Day parade in New York.Credit...Kirsten Luce for The New
York Times
[Noam Scheiber]<https://www.nytimes.com/by/noam-scheiber>
By Noam Scheiber<https://www.nytimes.com/by/noam-scheiber>
* July 21, 2021
It turns out that inflatable rodents may be as unstoppable as their living,
breathing cousins.
On Wednesday, the National Labor Relations Board ruled that unions can position
large synthetic props like
rats<https://apps.nlrb.gov/link/document.aspx/09031d45834c7505>, often used to
communicate displeasure over employment practices, near a work site even when
the targeted company is not directly involved in a labor dispute.
While picketing companies that deal with employers involved in labor disputes —
known as a secondary boycott — is illegal under labor law, the board ruled that
the use of oversized rats, which are typically portrayed as ominous creatures
with red eyes and fangs, is not a picket but a permissible effort to persuade
bystanders.
Union officials had stationed the rat in question, a 12-foot-tall specimen,
close to the entrance of a trade show in Elkhart, Ind., in 2018, along with two
banners. One banner accused a company showcasing products there, Lippert
Components, of “harboring rat contractors” — that is, doing business with
contractors that do not use union labor.
Lippert argued that the rat’s use was illegal coercion because the creature was
menacing and was intended to discourage people from entering the trade show.
But the board found that the rat was a protected form of expression.
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“Courts have consistently deemed banners and inflatable rats to fall within the
realm of protected speech, rather than that of intimidation and the like,” the
ruling said.
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The rise of the rodents, often known as “Scabby the Rat,” dates to the early
1990s, when an Illinois-based company began
manufacturing<https://www.vice.com/en/article/avnmgp/the-history-of-scabby-the-rat>
them for local unions intent on drawing attention to what they considered
suspect practices, such as using nonunion labor. The company later began making
other inflatable totems, like fat cats and greedy pigs, for the same purpose.
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The labor relations board had previously blessed rats in a 2011 ruling. But
seven years later, its general counsel, Peter B. Robb, sought to reopen the
debate.
Mr. Robb, a Trump appointee, issued an internal
memo<https://www.nlrb.gov/case/13-CC-225655> in 2018 arguing that erecting a
rat near an employer that was not directly involved in a labor dispute amounted
to “unlawful coercion” — an attempt to disrupt the business of a neutral party.
His office subsequently intervened on behalf of the companies in a handful of
cases in which firms sought to block unions from deploying large inflatable
paraphernalia close to their facilities.
One of those cases<https://www.nlrb.gov/case/29-CC-241297> was dismissed, while
a successor to Mr. Robb sought to
dismiss<https://www.nlrb.gov/case/04-CC-223346> another. (A judge has yet to
rule on the motion to dismiss that case.)
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In the case brought by Lippert, an administrative law judge ruled against the
company<https://local150.org/wp-content/uploads/2019/07/Lippert.pdf> in 2019,
arguing that the rat did not amount to a picket or illegal coercion.
The judge noted that the rat and banners, which were erected by members of a
local branch of the International Union of Operating Engineers, were stationary
and did not create confrontation with passers-by. There was no evidence that
the two union representatives present marched in front of the trade show or
blocked people from entering, the judge wrote. They appeared to merely sit
beside the rat.
The company appealed to the labor board in Washington, which solicited public
comment<https://www.nlrb.gov/news-outreach/news-story/nlrb-invites-briefs-on-bannering-and-displays-of-scabby-the-rat>
last fall on whether it should modify or overturn the precedent.
But the board’s chairman, Lauren McFerran, a Democratic appointee, concluded
that precedent required dismissing the complaint. Two Republican appointees
indicated that they considered the precedent flawed but that banning inflatable
rats would violate the First Amendment.
A lone Republican appointee, William J. Emanuel, argued that the precedent
should be overturned.
Noam Scheiber is a Chicago-based reporter who covers workers and the workplace.
He spent nearly 15 years at The New Republic magazine, where he covered
economic policy and three presidential campaigns. He is the author of “The
Escape Artists.” @noamscheiber<https://twitter.com/noamscheiber>