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“The Rat’s Rights: ‘Scabby’ Row Tees Up Union Speech Fight”

From Law360.com

A New York labor union may have stopped the National Labor Relations Board official’s bid to stop use of Scabby the Rat, but the fight still isn’t over. While unions may have had a victory with the June 1st ruling, the board’s may still eliminate the precedent allowing use of the inflatable rat.

Jerry Hunter a labor attorney with management-side firm Bryan Cave Leighton Paisner LLP and former general counsel for the National Labor Relations Board under the Bush administration, said employers have “detested” the rat since it was first used about 10 years ago.

“No business has been pleased with a union putting a rat outside of their business,” said Hunter. “Not only is the rat disruptive to traffic and customers, it unfairly labels businesses as abusive toward workers,” he told Law360.com.

An NLRB administrative judge ruled the International Brotherhood of Electrical Workers local didn’t violate the NLRA by deploying the rat outside a Philadelphia hotel. The full board will now have a chance to rule on the matter. Parties have until next week to challenge the judge’s ruling.

Former NLRB Chairman Wilma Liebman has indicated she believes there is a good chance the Board will reverse the precedent as the General Counsel for the NLRB has requested.

Hunter said he’s confident a board ruling outlawing such a protest would survive appeal. While labor unions have some right to speak freely, protests against secondary employers are less protected because they involve commercial speech, he said. “Courts have recognized this, that Congress struck the balance in the [NLRA] on free speech rights based on whether or not the conduct interferes with commerce,” he said.

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