Labor & Employment

Scabby the rat attends a protest

Scabby attends a protest in New York City in March 2018. Photo by nyker / Shutterstock.com.

The National Labor Relations Board is seeking briefs on whether it should limit union workers’ right to use Scabby the giant inflatable rat at some protests over the use of nonunion labor.

The board is asking whether it should modify or overrule NLRB decisions that permit the rat to be used in “secondary protests” at businesses other than workers’ employers, report Law360 and Bloomberg Law. Unions have fewer protections at secondary protests, but NLRB precedent says large banners and Scabby are not the kind of protest tactics that amount to the kind of coercive conduct that is banned, according to the Law360 story.

NLRB general counsel Peter Robb has called for banning Scabby at secondary protests. He is said to hate Scabby’s fierce look, according to Bloomber Law: bloodshot eyes and bared teeth.

The only Democrat on the NLRB board, Lauren McFerran, maintains Robb’s views should be rejected because they can’t be squared with the First Amendment or with a settled understanding of provisions in the National Labor Relations Act.

“Like the pied piper of Hamelin, the general counsel now offers to rid the field of labor relations of a supposed rat problem—yet here, too, following the piper’s lead may result in dire consequences,” she wrote. If the majority ultimately adopts Robb’s views, “the First Amendment would be in as grave a danger as the unfortunate children of Hamelin.”

The NLRB is seeking briefs in a pending case in which a union displayed a 12-foot inflatable rat and two large banners on public property near the entrance of an RV trade show in Indiana. The display was intended to shame an RV supply company, Lippert Components, accused of “harboring rat contractors.” An administrative law judge had ruled for the union.

Scabby has been a fixture during labor disputes at construction sites for 30 years, the Chicago Tribune reports. The maker of the rat balloon is a suburban Chicago company run by Mike and Peggy O’Connor.

Peggy O’Connor told the Tribune that production has not stopped during the COVID-19 pandemic. The company sells two to three inflatable rats a month at prices ranging from $2,600 to $9,300. “We have not stopped production, nor will we,” she said. “It’s a First Amendment [right] that you could practice your freedom of speech and freedom to advertise and freedom to try to make money.”