Scabby the Rat
is still alive and well.
The beloved inflatable rodent, a fixture at labor protests
in the United States
for decades, was saved from extinction
on Wednesday when the National Labor Relations Board
ruled that its use in labor disputes was legal.
The NLRB case could have effectively banned Scabby's presence outside businesses because the rat was so off-putting and intimidating that it was "unlawfully coercive." However, the board ultimately ruled in favor of the International Union of Operating Engineers Local 150, which had deployed the 12-foot rat outside an Indiana
RV trade show in 2018.
Due to the negative publicity generated by Scabby, the target of the union's protest, RV parts supplier Lippert Components, filed a complaint with the labor board. However, in a 3-1 decision, the board ruled to dismiss the complaint, stating that to do otherwise would violate the union's First Amendment
“[T]he courts have consistently deemed banners and inflatable rats to fall within the realm of protected speech, rather than that of intimidation,” the board’s chair, Lauren McFerran, wrote in her decision, citing NLRB precedent.
The decision appears to put an end to former President Donald Trump
's anti-Scabby campaign.
Republican board members typically side with businesses in contentious cases, but McFerran was joined in her opinion by two GOP
members: Marvin Kaplan and John Ring. Republican William Emanuel
dissented, ruling that the use of Scabby violated the National Labor Relations Act.
The decision appears to put an end to former President Donald Trump's war on Scabby. The Trump-appointed NLRB general counsel, Peter Robb, had wanted to ban Scabby's use under certain conditions. The general counsel acts as a quasi-prosecutor, bringing cases before the board on behalf of unions
In the Lippert case, Robb argued that Scabby's deployment was illegal because Lippert Components was a "neutral" employer, meaning that the union's members did not work
for Lippert but for a business that had a relationship with Lippert. Posting Scabby at the RV show amounted to an illegal "secondary boycott," according to Robb.
Because of the gravity of the situation, the labor board invited interested parties to submit briefs arguing for or against Scabby's legality.
Unions were concerned not only about their beloved Scabby, but also about broader First Amendment rights during labor protests, and Robb had filed at least one other complaint against a union over the use of an inflatable rat.
President Joe Biden
fired Robb on his first day in office, at the urging of unions, and replaced him with Peter Sung Ohr, a longtime NLRB official. Ohr quickly moved to withdraw the Scabby-related complaints pursued by his predecessor, calling them a "waste of valuable agency resources."
Biden’s nominee to replace Ohr as general counsel, union attorney Jennifer Abruzzo, was confirmed by the Senate
on a party-line vote of 51-50, with Vice President Kamala Harris
casting the tie-breaker. Republicans
were outraged that Biden fired Robb before his term was up, and not a single Republican senator voted in favor of Abruzzo’s nomination as general counsel.
Biden has already nominated two new board members, and Democrats
could take control by the end of the summer.