Court pokes Laborers lawsuit equating rat balloon and free speech

Sources: U.S. Court of Appeals for Seventh Circuit, Chicago; Littler Mendelson P.C., San Francisco; CP staff

A federal appellate court recently determined that enforcement of a Grand Chute, Wis., sign ordinance prompting removal of a 12-ft. inflatable rat—staged on public right-of-way and targeting a masonry contractor performing work at auto dealership—did not violate the First Amendment rights of Construction and General Laborers’ Union Local 330, Menasha, Wis.

Concrete Products file photo

The union deployed “Scabby” in early April 2014 on a frontage road across from Kolosso Toyota, but after three days was informed by the Grande Chute code enforcement officer that use of the rat balloon would have to cease per the town’s sign ordinance. Laborers’ Local 330 sued in U.S. District Court, contending the ordinance violated the First Amendment because it distinguished among signs on the basis of content. The District Court ruled in Grand Chute’s favor, concluding that the ordinance was content-neutral, applied in an even-handed manner, and left the union with alternate means to convey its message. Local 330 petitioned the Seventh Circuit for review, primarily in hopes of recovering damages rooted in paying members to assist in Kolosso Toyota picketing and expending organizing staff resources to maintain the protest.

“Scabby has survived employer attempts to eradicate union inflatables on the grounds that the rodent constitutes unlawful picketing, an unlawful secondary boycott, or violates local zoning laws,” notes Michelle Devlin, an associate in the New Haven, Conn., office of leading labor relations counsel Littler Mendelson. “This ruling creates a glimmer of hope for employers in what has otherwise been a frustrating and ineffective battle to curb an annoying union tactic.”