The saga of Scabby the Rat continues with the transition of the Biden administration and the recent unceremonious ouster of now-former General Counsel Robb. The debate focuses on whether the presence of Scabby, the large inflatable rat, and large banners at the site of a neutral secondary employer constitute lawful secondary protest activity or is unlawful picketing or coercive conduct.

In International Union of Operating Engineers, Local Union 150 (Lippert Components, Inc.), the union erected a large, inflatable rat and two stationary banners at the public entrance of a trade show. The evidence established that Lippert Components, Inc., was a neutral, secondary employer and not directly involved in a labor dispute with the union. Relying on the decisions of Carpenters Local 1506 (Eliason & Knuth of Arizona), and Sheet Metal Workers Local 15 (Brandon Regional Medical Center), the Administrative Law Judge (ALJ) found that the rat and the banners did not constitute unlawful picketing of a secondary employer because the display lacked the “essential element of confrontation” necessary to establish proscribed picketing under the National Labor Relations Act (NLRA). The ALJ further concluded that the evidence established that displaying the rat and the banners at the trade show was not unlawfully coercive because the conduct did not cause nor could it reasonably cause a disruption of the secondary employer’s operations.

The Trump administration position

Former General Counsel (GC) Robb was decidedly in favor of exterminating the rat, and to that end, Counsel for GC Robb filed a brief urging the Board to 1) reverse the ALJ’s decision in Lippert Components, Inc., and 2) overturn Board precedent under Eliason & Knuth of Arizona, and Brandon Regional Medical Center, the seminal cases upholding as lawful the use of the inflatable rat and large banners in secondary protests.

Additionally, former GC Robb and the Republican-controlled Board issued an order inviting parties and amici to submit briefs addressing the lawfulness of overturning precedent, reversing the Lippert Components, Inc., decision, creating new standards for secondary protest conduct, and the effect of the foregoing on First Amendment rights. The filing deadline was January 11, 2021, but a decision has not been issued by the Board. as of the date of this post.

The Biden administration position

Biden designated Peter Sung Ohr to serve as Acting General Counsel of the NLRB on January 25, 2021. On February 2, 2021, Counsel for Acting General Counsel Ohr filed with the Board a Motion to Remand or, alternatively, to Dismiss the Complaint in Lippert Components, Inc., arguing that the union’s conduct in Lippert Components Inc., was consistent with Board and federal court precedent and therefore, lawful.

The motion likely will be placed on hold until the dispute over the Acting GC’s authority that arose as a result of  Robb’s termination is resolved. In turn, the delay in a decision on the Acting GC’s motion will delay the issuance of a final Board decision in Lippert Components, Inc.  Regardless of the procedural maneuvers, the inevitable outcome remains the same; Scabby, the Rat, will survive yet again.

Tracey Oakes O’Brien, Legal Content and Knowledge Manager, is a co-author of this content.