Scabby the Rat, for now, will stay in the picture.
A U.S. District Court Judge last week declined to issue a preliminary injunction that would have obliged members of Construction and General Building Laborers’ Local 79 to stop picketing and other activities at a Staten Island ShopRite under construction and at other stores belonging to the same owner.
The union and its lawyers are battling the National Labor Relations Board in Federal court after the ShopRite’s owner, Kevin Mannix, filed a complaint with the agency when the site was picketed by Local 79, which was protesting the construction company’s use of non-union crews.
In his July 1 order, Judge Nicholas G. Garaufis said, in essence, that prohibiting picketing activities and the displaying of an inflatable rat and cockroach would violate the First Amendment, as well as the “applicable law that binds the NLRB.”
Citing that law, known as Brandon II, the Judge wrote in his 32-page decision that “[A] rat balloon...must be viewed as an 'expressive activity' protected by the First Amendment.”
“The NLRB has consistently held that expressive conduct, such as a stationary banner, the distribution of leaflets, and the use of an inflated rat to ‘shame’ a secondary employer does not violate” that rule, Judge Garaufis wrote.
Mr. Mannix’s complaint claimed that Local 79’s actions, including the rat display and the passing out of flyers at other ShopRite locations he owns on Staten Island, were illegal since the union has no valid beef with him because he is not the construction workers’ direct employer. The union has been passing out flyers denouncing Mr. Mannix’s hiring of GTL Construction, which the local says is paying its workers less than prevailing wages.
The store’s complaint alleged Local 79 “engaged in picketing, including blocking the sidewalk, using bullhorns to amplify shouting, distributing handbills, chanting, and blowing whistles” and erected an inflatable cockroach and an inflatable rat at the construction site to publicize its dispute with GTL and with the owner of the lease.
The complaint said the local’s representatives also worked to persuade workers at other stores owned by Mr. Mannix “to refuse to handle goods or perform services and threatened, restrained and coerced” Mr. Mannix and others.
The NLRB’s Regional Director of Region 29, which serves Brooklyn, Queens, Staten Island, and Nassau and Suffolk Counties, subsequently sought a preliminary injunction that, if granted, would have prohibited Local 79 from engaging in activities the NLRB argued amounted to unfair labor practices, including some it claimed were “threatening” or coercive.
Judge Garaufis was steadfast in his disagreement, saying that “there is no evidence” either that the ShopRite employees refused to work because of the union’s action or that the local representatives “in any way induced or encouraged” those employees to refuse to work, “let alone that such inducement or encouragement was coercive.”
During a June 27 rally at Federal Hall, several speakers, including the union’s lawyer, Tamir Rosenblum, said the NLRB’s General Counsel, Peter Robb, and, by extension, the Trump Administration, were using the skirmish on Staten Island as a proxy clash in a bid to sabotage the labor movement by curtailing unions’ long-recognized free-speech rights.
Mr. Rosenblum at the rally said that while the court fight with NLRB lawyers was ostensibly about organized labor’s right to picket, it also is representative of the government’s effort to suppress speech and viewpoints with which it disagreed.
“Workers and labor unions have the same rights under the First Amendment as any other protesting group, and we can’t let that change. Judge Garaufis’s ruling this week renewed our faith in the federal judicial system’s ability to uphold and defend the right of workers and unions to use peaceful speech and assembly in the Trump era,” he said in a statement following the Judge’s order. “That’s no small thing, at a time when the Trump administration continues to threaten our democracy and undermine working people throughout the country.”
The union’s lawyers will next argue their position during an administrative hearing at the Brooklyn offices of the National Labor Relations Board later this month.
Mr. Rosenblum, however, suggested that Scabby the Rat was likely to be in the forefront of a long dispute between unions and their representatives, and the Federal government.
Speaking on July 3, he said that although the union expected setbacks as the case moved through the courts, particularly if the NLRB, as expected, amends board law, he believed the union would prevail because “the First Amendment won’t have changed.”
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