70 SWAG - Click here 

The National Labor Relations Board on Wednesday said an Indiana union had the right to display a 12-foot inflatable rat and inflammatory banners outside a trade show in order to boycott a business that worked with another company involved in a labor dispute.

The board in the 3-1 decision upheld a pair of Obama-era rulings that said displaying banners and large inflatable figures such as "Scabby the Rat" does not violate the National Labor Relations Act's ban on threatening or coercive conduct during union pickets and boycotts.

NLRB Chair Lauren McFerran, a Democrat, wrote that the board in those cases rightly found that the potential infringement of a union's free-speech right precluded a finding that banners and inflatable rats were illegal.

But Republican NLRB Members Marvin Kaplan and John Ring in a concurring opinion said that while the conduct of the International Union of Operating Engineers local involved in the case was lawful, the board decisions issued in 2010 and 2011 were too broad and could shield coercive activities by unions in future cases.

The IUOE, which is represented by in-house counsel, did not immediately respond to a request for comment. Nor did Allyson Werntz and Brian Easley of Jones Day, who represent Indiana-based Lippert Components Inc.

Lippert, which makes components for mobile homes and recreational vehicles, had filed a complaint against the union in 2018 claiming its use of the banners and the rat violated the NLRA.

The union displayed the rat with a banner that read "Shame on Lippert Components Inc for harboring rat contractors" outside of the trade show, according to board filings. Another banner read "OSHA Found Safety Violations Against MacAllister Machinery, Inc," the company involved in a dispute with the union.

An administrative law judge in 2019 disagreed with the company, applying the Obama-era precedent that said unions could use banners and inflatable figures while engaging in so-called "secondary boycotts" of companies that did business with other companies who employed their members.

The office of former NLRB general counsel Peter Robb, an appointee of President Donald Trump, had argued in Lippert's case that inflatables and provocative banners were unlawful because they are expressly designed to intimidate and coerce.

President Joe Biden fired Robb on his first day in office in January. His replacement, Obama-era deputy general counsel Jennifer Abruzzo, was confirmed on Wednesday.

The board last October called for amicus briefs in the case. The IUOE was backed by a coalition of major unions and left-leaning advocacy groups including the American Civil Liberties Union. The U.S. Chamber of Commerce, Associated Builders and Contractors and several other large business groups filed briefs supporting Lippert.

On Wednesday, the board majority said Lippert had not shown that the IUOE's use of the rat and the banners were coercive.

Republican NLRB member William Emanuel dissented, saying the Obama-era precedent was flawed because it applied too narrow a reading of the NLRA's ban on threats and coercion and incentivized unions to engage in conduct that should be prohibited.

"The rat in particular, a dominating physical presence, plainly created a symbolic confrontation," Emanuel wrote.