Scabby Lives: NLRB Rejects Attack On The Rat

August 16, 2021 by Andrew Baker

Scabby the Rat – a large, fanged, red-eyed rodent balloon – has become a popular tool for Unions to use to publicize labor disputes, in particular at “secondary” sites where pickets are not allowed. The NLRB and the courts on several occasions have given the OK to Scabby, but perhaps because Scabby is a powerful Union weapon, Trump’s head attorney at the NLRB launched a legal attack on Scabby, arguing that his presence at a secondary employer constitutes unlawful “coercion” of the neutral employer.

But even the Trump Board could not accept this line of argument. Two Trump-appointed Board Members, joined by the lone Democrat on the Board, on July 21 issued a decision declining to overrule prior rulings giving the green light to Scabby.

The decision focused on the significance of the U.S. Supreme Court’s 1988 decision in DeBartolo which ruled that the First Amendment precluded enforcement of the NLRA to ban union handbilling at secondary, neutral locations. Even the Trump appointees had to concede that the same First Amendment protection applies to Scabby, as well as to banners.

Picketing at secondary locations remains off limits, based on quite old Supreme Court precedent determining labor picketing to be something more than mere free speech, something inherently intimidating.

A note of caution is in order regarding the use of Scabby, other inflatable devices, and large banners at secondary sites. If any of these devices is accompanied by a group of confrontational Union supporters, or other intimidating conduct, the Union runs a risk that the NLRB could find the overall conduct unlawfully “coercive.”

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