Chicago-born “Scabby the Rat” and his hulking, inflatable peers will live to fight the boss another day.
In a 3-1 decision issued Wednesday, the National Labor Relations Board ruled that Scabby’s towering presence at union protests is protected speech that does not violate labor law against “coercive” behavior.
Writing for the majority, NLRB Chair Lauren McFerran pointed to Supreme Court rulings in free speech cases in upholding Obama-era labor board rulings that protected Scabby and his inflatable cousins. Courts long have allowed protests that included messages far more repulsive than the ones conveyed by a giant, scabrous rodent, McFerran wrote.
“We are not persuaded that the inflatable rat must be deemed intimidating and coercive ... because of its size and appearance,” wrote McFerran, a Democratic appointee to the board.
In a concurring opinion, Republican NLRB board appointees Marvin Kaplan and John Ring agreed that it was legal for an Indiana-based local of the International Union of Operating Engineers to install a 12-foot Scabby outside an Elkhart, Indiana, RV trade show to protest a supplier of an RV company. But, they said, Obama-era rulings by the board on such displays were overly broad.
Board member William Emanuel, a Republican, was the lone dissent, finding that erecting an “imposing 12-foot inflatable rat, replete with red eyes, fangs, and claws” violated labor law against coercive behavior targeting a secondary employer, since the union’s dispute was with a supplier of the company they were picketing at the trade show.
The ruling came as no surprise to union leaders, said Ed Maher, spokesman for IUOE Local 150, which claims to have created the first Scabby in 1988.
The District 1 Council of the International Union of Bricklayers also lays claim to creating Scabby, who, along with peers “Greedy Pig” and “Fat Cat,” have been fixtures at union protests across the nation for more than 30 years. The official Scabby is manufactured in suburban Plainfield by Big Sky Balloons.
“There are two decades of local governments and employers testing whether inflatable rats in Chicago and elsewhere are protected speech, and Scabby always wins,” Maher said. “Scabby is an effective tool, and he’s a target because he’s effective.”
Exterminating Scabby had been a personal vendetta for Peter Robb, an employer-side labor attorney who was appointed NLRB general counsel under President Donald Trump and removed from his post the day Joe Biden was inaugurated. Robb has pressed the NLRB to fight a ruling by an administrative law judge in favor of Scabby, claiming the presence of the giant rat was illegally coercive. Robb’s replacement asked the board to dismiss the case, calling it a waste of agency resources.
Scabby and other inflatables draw attention to strikes and protests in a way that picketers do not, Maher said.
“Scabby is eye-catching, to say the least,” he said. “People see him, they think ‘Something is wrong here,’ and maybe they will try to find out what it is that’s wrong.”