On Wednesday, the National Labor Relations Board decided to defend a union's right to display banners and "a 12-foot inflatable rat with red eyes, fangs, and claws" known as Scabby that often shows up at picket lines to ward off scabs. The move upholds a precedent established by the Obama administration in 2011 that protected this sacred right after a union was accused of “unlawful” activity for placing Scabby outside a trade show in Elkhart, Indiana.
The union in question was in the middle of a labor dispute with Indiana-based MacAllister Machinery. The demonstration was to pressure Lippert Components, a separate "secondary" or "neutral" employer, from working with them. Lippert filed a complaint, alleging they were unlawfully dragged into the labor dispute despite being a neutral party. As two NLRB members note in a concurring opinion, labor law protects such employers "from being enmeshed in labor disputes not their own" so the question here was whether or not Scabby and the banners constitute a violation of that protection.
The two banners on display at the union action quite clearly read "OSHA Found Safety Violations Against MacAllister Machinery, Inc." and "SHAME ON LIPPERT COMPONENTS, INC., FOR HARBORING RAT CONTRACTORS." The decision noted that two union workers were next to Scabby and the banners, but they did not threaten or "shout, chant, or verbally confront trade-show patrons."
“The display of the banners and inflatable rat was clearly expressive activity, conveying the Union’s message that MacAllister had committed OSHA violations and was a 'rat contractor,' that Lippert should be ashamed to do business with it, and, implicitly, that MacAllister’s alleged conduct should be opposed by abstaining from doing business with Lippert,” the ruling explains in its footnotes early on.
Members of the board soundly put down the notion that this constituted unlawful activity, with separate concurring opinions ranging from the position that prior precedent made this decision an easy one to the assertion that the First Amendment protected the actions.
As NLRB members Marvin Kaplan and John Ring:
Indeed, the Supreme Court has repeatedly held that other confrontational—and far more offensive—forms of expressive activity are within the protection of the First Amendment. See Texas v. Johnson, 491 U.S. 397 (1989) (flag burning); Virginia v. Black, 538 U.S. 343 (2003) (cross burning); Snyder v. Phelps, 562 U.S. 443 (2011) (anti-homosexual demonstration near service member’s funeral featuring signs reading, among other things, 'Fags Doom Nations' and 'Thank God for Dead Soldiers'). Surely, if the First Amendment protects this conduct, prohibiting an inflatable rat and stationary banners shaming a secondary employer would raise significant constitutional concerns in the eyes of the Court. Moreover, that Lippert found the Union’s display 'embarrassing' does not outweigh the First Amendment rights implicated here.
The lone dissenting vote, from Member William J. Emanuel, maintained that bothScabby's presence and the banners were problematic.
“My colleagues, by affirming Brandon and Eliason & Knuth, ensure that displays of banners and giant, inflatable rats directed at neutral employers will be deemed lawful, including in this case. Such coercive secondary conduct will predictably proliferate, but today’s decision leaves targeted neutral employers without recourse," Emanuel wrote. "Aggrieved neutral employers will continue to petition the Board seeking relief from secondary coercion. The Board’s response today is to state, in effect, 'too bad.'”
Too bad indeed, for employers embroiled in labor disputes and for scabs who cross picket lines to collect a paycheck. It looks like Scabby isn't going anywhere any time soon.