Issue link: https://digital.copcomm.com/i/1151081
12 CINEMONTAGE / Q3 2019 GET TING ORGANIZED Captain Ahab's cetological obsession. The General Counsel, according to a senior NLRB official quoted anonymously in Bloomberg Law earlier this year, "hates the rat." Months ago, Robb reportedly instructed NLRB lawyers to find cases that could be used to overturn a 2011 ruling protecting unions' use of Scabby. Earlier this summer, he tried and failed to get a judge to bar a union from deploying inflatable rats outside of several Staten Island supermarkets. Robb will likely prevail, though, before a management- friendly Board in a case involving the International Brotherhood of Electrical Workers (IBEW) and its demonstration outside of a hotel in Philadelphia last summer. At issue is the question of whether the balloon's presence effectively constitutes an illegal secondary boycott. (The hotel didn't directly employ individuals represented by IBEW, but was under fire from the union for using a non-union contractor.) An administrative law judge ruled in favor of Scabby, but that case now heads to the Board for review, and the General Counsel's office has submitted a brief full of points intended to puncture the rat's legal defenses. If this brouhaha sounds more than a little bit silly, it is. We're talking about a high-ranking government official on a crusade against a cartoon balloon. It is as if Inspector Javert had opted to pursue not Jean Valjean, but instead Pepé Le Pew. Absurdities aside, however, the fight has real implications for how we think about the rights of workers to push for better working conditions. I never went to law school, and chances are most of you didn't either. But anybody with a middle school education knows that the First Amendment guarantees freedom of expression. And Scabby, with his exaggerated snarl and beady, hate-filled eyes, is clearly expressive. In short, Scabby is speech. Any move by a government agency to prohibit non- violent protest would run afoul of this first principle in the Bill of Rights, right? No, say the NLRB's lawyers. Their argument turns on subtle distinctions between speech and conduct, between protest and picketing, between persuasion and coercion. An op-ed imploring employers to pay a living wage would be well and good, but a non-violent demonstration outside of a company hiring non-union contractors is breaking the law — at least if an oversized cartoon rodent is involved. Ultimately, Robb and others who would outlaw Scabby are able to make straight-faced arguments to curb peaceful protest because US labor law is in fact rooted not in the First Amendment's guarantees of liberties, but instead in the Constitution's Commerce Clause, the language authorizing Congress to regulate trade. Indeed, the opening paragraphs of the National Labor Relations Act (NLRA), the legal underpinning for collective bargaining in the private sector, make explicit that the law "safeguards commerce from injury, impairment or interruption, and promotes the flow of commerce by removing certain recognized sources of industrial strife and unrest." Although the text of the NLRA makes passing reference to the freedom of association, those individual and collective freedoms are not its focus. Instead of asserting that workers have a fundamental and inalienable right to come together to advance their shared interests, the law makes the more prosaic case that efficient collective bargaining keeps the gears of the economy well-oiled. CONTINUED ON PAGE 14 CONTINUED FROM PAGE 10 Guild National Organizer Rob Callahan, right, and Orga- nizer Preston Johnson with Scabby on the Shahs of Sun- set picket line in Los Angeles. Photo by Ron Garcia