It turns out that inflatable rodents can be just as unstoppable as their living, breathing cousins.
On Wednesday, the National Labor Relations Board ruled that unions can place large synthetic props, such as rats, which are often used to spread displeasure about employment practices, near a workplace even if the target company is not directly involved in an industrial action.
While the strike of companies dealing with employers in labor disputes – known as a secondary boycott – is illegal under labor law, the board ruled that the use of oversized rats, usually portrayed as ominous creatures with red eyes and fangs, is illegal is picket, but a legitimate attempt to convince bystanders.
Union officials stationed the rat in question, a 12-foot-tall specimen, near the entrance to a fair in Elkhart, Indiana, along with two banners in 2018. A banner accused a company that displayed products there, Lippert Components, of “harboring rat entrepreneurs” – that is, doing business with contractors who do not use union work.
Lippert argued that the use of the rat was illegal coercion as the creature was threatening and should deter people from entering the mess. But the board found that the rat was a protected form of expression.
“Courts have consistently held that banners and inflatable rats fall within the realm of safe speech and not the realm of intimidation and the like,” the ruling reads.
The rise of the rodents, often known as “Scabby the Rat,” dates back to the early 1990s when an Illinois-based company began manufacturing them for local unions to target practices they believed to be suspicious draw attention of non-union workers. The company later began making other inflatable totems, such as fat cats and greedy pigs, for the same purpose.
The working committee had previously blessed rats in a 2011 ruling. But seven years later, his general counsel, Peter B. Robb, tried to reopen the debate.
Mr. Robb, a Trump-appointed employee, issued an internal memo in 2018 arguing that placing a rat near an employer who was not directly involved in a labor dispute was “unlawful coercion” – an attempt to to disrupt the business of a neutral party. His office then intervened on behalf of companies in a handful of cases in which companies tried to prevent unions from using large inflatable items near their facilities.
One of these cases was dismissed while a successor to Mr Robb tried to dismiss another. (A judge has yet to rule on the motion to dismiss this case.)
In Lippert’s pending case, an administrative judge ruled against the company in 2019, arguing that the rat was not a vigil or illegal coercion.
The judge found that the rat and banners put up by members of a local branch of the International Union of Operating Engineers were stationary and did not create a confrontation with passers-by. There is no evidence that the two trade union representatives present marched in front of the fair or that people were not allowed in, the judge wrote. They just seemed to be sitting next to the rat.
The company reached out to the Washington Labor Office, which obtained a public comment last fall on whether to change or lift the precedent.
But board chairwoman Lauren McFerran, a Democratic nomination, concluded that the precedent required the complaint to be dismissed. Two Republican officials said they believed the precedent was flawed, but that the ban on inflatable rats would violate the First Amendment.
A lone Republican representative, William J. Emanuel, argued that the precedent should be lifted.