Anyone who has ever passed by a labor protest is no doubt familiar with Scabby the Rat—a large inflatable balloon deployed by unions protesting an employer or contractor who uses non-union labor. The rat balloons are usually 12 feet tall (sometimes larger), and are grotesque, featuring large teeth and a scabby stomach.
The National Labor Relations Board (NLRB), under former General Counsel Peter Robb, had sought to prohibit Scabby from being used in protests against someone other than a direct employer. The rationale for this was that placing Scabby in the proximity of someone other than a direct employer was unlawful secondary picketing that is prohibited under the National Labor Relations Act. More specifically, at issue was whether past NLRB decisions in Eliason and Brandon Regional Hospital had set forth a definition of picketing that was too narrow, such that inflating Scabby at a worksite was not considered picketing that would fall within the anti-picketing prohibitions of the NLRA.
Mr. Robb, of course, was fired from his post in January. Under the new General Counsel, the NLRB has reversed its attacks on Scabby. Among the more obvious concerns for limitations on Scabby’s use were First Amendment concerns. Previously, the General Counsel had argued that “there should be no First Amendment protection for the particular confrontational conduct here of using a large inflatable rat and oversized banners in the course of a labor dispute.” General Counsel’s Brief to NLRB. This reasoning may be particularly unavailing to First Amendment scholars, as it is unclear how Scabby would qualify under any of the usual restrictions on the First Amendment—incitement, defamation, fighting words, or obscenity.