New NLRB acting attorney backs off lawsuit against Scabby the Rat

Peter Sung Ohr, the acting general counsel of the National Labor Relations Board (NLRB), is seeking to withdraw complaints alleging that unions illegally displayed a giant inflatable rat known as Scabby the Rat outside a Philadelphia hotel and an RV trade show in Indiana. Ohr is asking the NLRB to let him withdraw the complaints, Law360 reported.

The previous general counsel, Peter Robb, a management-side labor lawyer appointed by former President Trump, tried to muzzle Scabby the Rat as soon as he took office. He found his chance in a case involving Operating Engineers Local 150. The union set up Scabby the Rat and two large banners on public property near the entrance of an RV exhibition to publicize the union’s complaint with RV parts manufacturer Lippert Components and its use of nonunion contractors. The company filed a complaint with the NLRB.

Scabby the Rat has faced multiple court challenges over the years, but has always won on First Amendment protection of symbolic speech. So, based on past precedent, an administrative law judge dismissed the charge.

But Robb challenged that decision, so the Board, in a party-line vote, began soliciting public briefs on whether it should restrict or ban the use of Scabby the Rat. The case was pending when Joe Biden unseated Trump for president. One of Biden’s first actions was to remove Robb from the NLRB.

In a motion released earlier this month, NLRB lawyers said the complaint against the union for using Scabby “undermines current Board law and is not in the public interest.” The union’s actions were legal, and pursuing the case would amount to “a waste of valuable agency resources.”

This is good news for Operating Engineers Local 701, which oversees a “Rat Tracker” in the Portland metropolitan area.

“Displays and public appeals like ours are protected by both the First Amendment and the National Labor Relations Act, according to several federal court cases and National Labor Relations Board decisions,” Local 701 Business Manager Jimbo Anderson told the Labor Press. “We’re exercising our First Amendment rights to raise awareness about family wage jobs and apprenticeship programs.”

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