By Don McIntosh
Scabby the Rat is 12 feet tall and has red eyes, fangs, and claws. It may be scary looking, but the beloved union inflatable is not an outlaw, the National Labor Relations Board (NLRB) has ruled.
In 2018, Peter Robb, the Trump-appointed top lawyer at the NLRB, argued in legal filings that Scabby is illegally “coercive” when used to shame a neutral party to a labor dispute. But Joe Biden fired Robb the day he took office, and on July 21 Robb’s case against Scabby was dismissed in a 3-1 decision of the Board.
Scabby’s legal trouble began in September 2018 in Elkhart, Indiana. There, Operating Engineers Local 150 was in a dispute with a company called MacAllister Machinery, and an RV parts maker, Lippert Components, was renting MacAllister’s equipment. Local 150 decided to let the world know.
Outside a trade show hosted by the huge RV manufacturer Thor Industries, Scabby showed up accompanied by two Local 150 reps and two eight-foot banners. One banner said, “Shame on Lippert Components for Harboring Rat Contractors.” The other said “OSHA Found Safety Violations Against MacAllister Machinery.” The rat, banners, and reps stayed there all day long, all four days of the trade show.
It was embarrassing, a Lippert executive told his in-house attorney. And as the attorney later complained in a charge filed with the NLRB, the rat was “quite menacing in its appearance” and was “intended to be scary.”
Seriously? The union reps and their rat were on public land bordering the road. They didn’t block entry or exit. They didn’t cause disruption, stop traffic, make loud noises, or even approach patrons or employees. They just stood there, rat and reps, with banners, making a point. Something called the First Amendment is supposed to protect that, Scabby’s supporters argued. As the case progressed, more than two dozen labor organizations filed legal briefs in support of Scabby, including the AFL-CIO, North America’s Building Trades Unions, Bricklayers, Carpenters, Operating Engineers Laborers, SEIU, United Association of Plumbers and Fitters.
Robb argued that for Local 150 to show up with Scabby was unlawful because Lippert was a “neutral” employer―the union’s members didn’t work for Lippert. Thus having Scabby at the RV show amounted to an illegal “secondary boycott.”
That would go against previous interpretations of the law, Board members wrote in dismissing the case.