Scabby the Rat Lives and Joins Secondary Protests

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Ballard Spahr LLP

On July 21, 2021, in a 3-1 decision, the National Labor Relations Board (“NLRB”) ruled that a union does not violate federal labor law with the display of the infamous “Scabby the Rat,” and other similar inflatable symbols, at workplaces that do not employ those union’s workers.   Former NLRB General Counsel Peter Robb, a Trump appointee, had long attempted to kill off Scabby, arguing that using the balloons at secondary protests was an unlawful attempt to threaten and coerce neutral parties.  However, two Republican NLRB members, John Ring and Marvin Kaplan, joined Democratic Chair Lauren McFerran to dismiss the case.  Ring and Kaplan based their decision on First Amendment grounds, while McFerran’s concurrence explained that NLRB precedent required the dismissal.

Several federal court opinions had previously given Scabby a reprieve, determining  that unions’ use of inflatable rats and other balloons at protests is protected under the First Amendment.

The matter stems from a 2018 demonstration featuring Scabby by the Operating Engineers Local 150 in front of an RV trade show.  The union was engaged in a dispute with a company that did business with an RV supplier.

The NLRB’s decision makes it easier for Scabby and other similar inflatable symbols or balloons to appear at any employer’s workplace.  In the event such union demonstrations arise, employers should consult with labor counsel for further advice.

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