Judge Upholds Labor’s First Amendment Right To Deploy ‘Scabby The Rat’ In ShopRite Dispute

New York, NY – “Scabby The Rat” will not be silenced! For the second time in as many months, a federal judge has upheld Construction & General Building Laborers Local 79’s First Amendment right to use the inflatable cartoon character in an ongoing labor dispute on Staten Island. 

For months, Local 79 has been employing “Scabby The Rat” and his balloon cohorts to protest the construction of a Mannix Family Market-owned ShopRite being built nonunion on Hylan Boulevard. 

Kevin Mannix, owner of Mannix Family Market, however, balked at all the attention Local 79’s protest was generating and sought the NLRB’s help in putting a stop to it. 

But on Monday, just day’s ahead of ahead of this year’s 4th of July celebrations, U.S. District Judge Nicholas Garaufis ruled that the supermarket owner’s beef doesn’t “outweigh the First Amendment implications of restricting a union’s ability to publicize labor conflicts-nor do they justify adopting a ‘novel and unprecedented application of the statute.”

As Law360.com reports, Judge Garaufis further ruled “A regular display of inflatable rats and a cockroach on a public street, peaceful and limited handbilling, and a single, peaceful, stationary, hour-long rally in mid-May … do not constitute picketing, lack the ‘essential element of coercion,’ and do not otherwise rise to the level of ‘threats, coercion, or restraints’ necessary to find a violation.”

The NLRB had argued that Local 79’s use of “Scabby The Rat” constitutes an illegal “secondary boycott” — or a protest that hurts a “neutral employer’s” business in an attempt to confront a direct employer. 

Large corporations routinely use such legal stipulations to seriously hamper a union’s ability to fight back on behalf of workers. The ongoing strike against Charter Communications is just one example of how the prohibition against so-called “secondary boycotts” can stymie unions.

That said, Judge Garaufis further determined “there is no evidence that Mannix employees ever refused to perform services for reasons related to the protest activity by Local 79,” and “there is no evidence that Local 79 representatives in any way induced or encouraged employees to refuse to perform services for Mannix or the Mannix-owned stores, let alone that such inducement or encouragement was coercive.”

Last week, Local 79 took the historic steps of Federal Hall on Wall Street to denounce the NLRB’s efforts to put the kibosh on “Scabby The Rat” as an unbridled attack on free speech rights enshrined in the First Amendment. 

“You run that game on us, you will run that on everybody,” Local 79 attorney Tamir Rosenblum said. “You will run that on people talking about immigration, about gay rights, about environmental rights, about African-American rights — about any single community — all of us.”

Local 79’s battle against the new Hylan Boulevard ShopRite supermarket being constructed nonunion is expected to continue.  

“This is going to go on for awhile and while I am confident in the legal team we’ve got working on this…there is one weapon which is our best weapon,” Rosenblum added. “And it starts now — and that is our  collective voices. They need to know that they cannot shut us up.”

According to Rosenblum, Local 79 was expecting the decision to go its way after seeing how well court arguments had gone over the last two weeks.

“But it was nonetheless extremely gratifying and gave us newfound faith in the federal judicial system to get a decision that so clearly and powerfully articulated what was wrong with the efforts of Trump’s National Labor Relations Board General Counsel to enjoin the union’s peaceful speech and assembly,” he said in a follow up email.

Rosenblum further stressed that the issue before the Court was actually not whether the union’s protests were legal, but whether it was even “reasonable” for the NLRB general counsel to claim otherwise.

“The judge found it was not,” Rosenblum said. “We are likely still going to have to deal with them moving forward on the underlying administrative claims they filed against us, which would now be proceeding in total disregard of a Court’s admonitions as to how outside the constitution they are behaving. But yesterday’s ruling is, all the same, a terrific first decision in what will likely be a very drawn-out legal battle.”