Law360: Dinsmore's Mark Carter Speaks on Scabby the Rat NLRB Decision

July 26, 2021Quotes & Mentions

Dinsmore labor partner Mark Carter spoke with Law360 last week about the National Labor Relations Board's decision to allow unions to display Scabby the Rat, a huge inflatable rodent, during labor protests. An excerpt of the article is below.

Unions notched a significant win with the National Labor Relations Board's decision allowing them to display Scabby the Rat during labor protests, as experts said the ruling likely puts an end to litigation over the protest icon for the foreseeable future. In a 3-1 decision issued Wednesday, the NLRB said International Union of Operating Engineers Local 150 did not violate the National Labor Relations Act by displaying Scabby.


Mark Carter, a management-side attorney with Dinsmore & Shohl LLP, said litigators on both sides of the labor law bar were hoping the Lippert Components decision would deliver a firmer standard and likely came away disappointed.

"This decision does not provide either unions or employers with a bright line," Carter said. "It simply says because we believe that this could be vulnerable under a constitutional analysis, we are going to effectively defer to make a determination."


Dinsmore's Carter said another possible impact of the decision may come from members John Ring and Marvin Kaplan's concerns about the potential First Amendment implications of the dispute. Carter said if the NLRB strictly adheres to the constitutional avoidance stance Ring and Kaplan took in Lippert Components, it could constrain the decisions and the remedies the board issues in the future.

"It definitely means that practitioners, attorneys representing the various parties before the NLRB, will have another argument that they can advocate based on this decision," Carter said.

Read the full article here.