It turns out that inflatable rodents may be as unstoppable as their living, breathing cousins.
The National Labor Relations Board ruled on Wednesday that labour unions can place large synthetic props such as rats near a work site even if the targeted company is not directly involved in a labour dispute. Rats are commonly used to communicate dissatisfaction with employment practises and can be used to communicate dissatisfaction with a company’s policies.
Even though picketing companies that do business with employers involved in labour disputes — known as a secondary boycott — is prohibited under federal labour law, the National Labor Relations Board determined that the use of oversized rats, which are typically depicted as ominous creatures with red eyes and fangs, is not a picket but rather an acceptable effort to persuade bystanders.
Union officials had placed the rat in question, a 12-foot-tall specimen, near the entrance of a trade show in Elkhart, Indiana, in 2018, along with two banners, to draw attention to the event. Among the charges levelled against Lippert Components, which was exhibiting products at the event, was that it was “harbouring rat contractors” — that is, doing business with contractors who did not use union labour.
Lippert argued that the use of the rat constituted illegal coercion because the creature was menacing and was intended to deter people from entering the trade show, which was prohibited by law. The board, on the other hand, determined that the rat was a protected form of expression.
According to the ruling, “Courts have consistently found that banners and inflatable rats fall within the realm of protected speech, rather than that of intimidation and the like.”
The rise of the rodents, also known as “Scabby the Rat,” can be traced back to the early 1990s, when an Illinois-based company began manufacturing them for local unions looking to draw attention to what they considered to be questionable practises, such as the use of nonunion labour, among other things. Later, the company expanded its product line to include other inflatable totems, such as fat cats and greedy pigs, for the same purpose.
In 2011, the National Labor Relations Board gave its blessing to rats in a decision. However, seven years later, the organization’s general counsel, Peter B. Robb, attempted to reopen the discussion.
Mr. Robb, a Trump appointee, wrote an internal memo in 2018 arguing that erecting a rat near an employer who was not directly involved in a labour dispute constituted “unlawful coercion” — an attempt to disrupt the business of a neutral party — and thus violated the law. His office then intervened on behalf of the corporations in a handful of cases in which the corporations sought to prevent labour unions from erecting large inflatable paraphernalia near their workplaces.
One of those cases was dismissed, and a successor to Mr. Robb attempted to have another case dismissed as well. (A decision on the motion to dismiss that case has not yet been reached by a judge.)
The company was found in contempt by an administrative law judge in 2019, who ruled that the rat did not amount to either a picket or illegal coercion. The case was brought by Lippert.
The judge observed that the rat and banners, which had been erected by members of a local branch of the International Union of Operating Engineers, were stationary and did not cause any confrontation with onlookers or pedestrians. As the judge pointed out, there was no evidence that the two union representatives who attended the trade show marched in front of the event or prevented people from entering the venue. They appeared to be doing nothing more than sitting next to the rat.
After filing an appeal with the National Labor Relations Board in Washington, which solicited public comment last fall on whether it should modify or overturn the precedent, the company was successful.
However, the board’s chairman, Lauren McFerran, a Democrat who was appointed to the position, determined that precedent required dismissal of the case. However, two Republican appointees stated that while they believed the precedent to be flawed, they believed that prohibiting inflatable rats would be a violation of the First Amendment.
Bill Emanuel, a Republican appointee who was the only one to speak out, argued that the precedent should be overturned.