Scabby the Rat Is Under Attack

Hannah Steinkopf-Frank May 16, 2019

On September 17, 2010, "Scabby" was employed by the Local 639 Teamsters union as they try to negotiate their contract in Upper Marlboro, MD. (Photo by Juana Arias/For the Washington Post)

The Trump era presents unions with a range of new threats to their sur­vival, includ­ing the 2018 Janus Supreme Court deci­sion revok­ing the right of pub­lic sec­tor unions to col­lect dues from non­mem­bers. This ero­sion of union pro­tec­tions is being met with large-scale protests and grass­roots orga­niz­ing, from pick­et­ing school teach­ers to strik­ing ride-share dri­vers. But as bat­tles over union rights tran­spire at the local and fed­er­al lev­els, an unex­pect­ed fig­ure has come into focus: a giant inflat­able rodent.

In the late 20th cen­tu­ry, Scab­by the Rat was pop­u­lar­ized in the indus­tri­al Mid­west and grew into a sym­bol of union sol­i­dar­i­ty, show­ing up at protests around the coun­try and the world. Stand­ing as large as 25 feet tall with an aggres­sive facial expres­sion, claws ready to fight and a stom­ach cov­ered in inflamed scabs, Scab­by is an effec­tive tac­tic to force nego­ti­a­tion and draw media cov­er­age while sham­ing those who vio­late strikes. The rat’s con­tin­ued effec­tive­ness is a tes­ta­ment to the impor­tance of work­place orga­niz­ing, par­tic­u­lar­ly in an era of his­tor­i­cal­ly low union par­tic­i­pa­tion. The year 2018 marked the low­est rate of union den­si­ty, or the per­cent­age of union­ized work­ers, since the Bureau of Labor Sta­tis­tics revamped its data report­ing process in 1964.

Now, the Nation­al Labor Rela­tions Board (NLRB), which gov­erns the pri­vate sec­tor, is try­ing to lim­it Scabby’s use as part of a wave of anti-union deci­sions by busi­ness-friend­ly Repub­li­can mem­bers. As a senior NLRB offi­cial recent­ly told Bloomberg Law, the Trump-appoint­ed Gen­er­al Coun­sel Peter Robb wants to find it unlaw­ful to pick­et, strike or hand­bill with the rat present.” (The NLRB did not return requests for com­ment.) The same offi­cial told Bloomberg that Robb hates the rat.”

In Decem­ber, Robb instruct­ed NLRB attor­neys to revive a Scab­by com­plaint in Illi­nois involv­ing Done­gal Exca­vat­ing and Union of Oper­at­ing Engi­neers Local 150. Local 150 spokesman Ed Maher said that despite Repub­li­can con­trol of the NLRB — Repub­li­cans cur­rent­ly hold three of the five Board seats with one vacan­cy — it will be a hur­dle to over­turn Board precedent.

He [Robb] has prob­a­bly spent his career on the side of employ­ers who’ve been tar­get­ed by protests like this,” said Maher. So he prob­a­bly has a very neg­a­tive per­son­al feel­ing toward Scab­by, as indi­cat­ed by that quote [in the Bloomberg article].”

Local 150 Gen­er­al Coun­sel Dale Pier­son esti­mat­ed Scab­by has been used thou­sands of times by the union. On a giv­en day, up to 10 rats might be deployed to work­place pick­ets for issues includ­ing con­tract dis­putes, work­ing con­di­tions, wages and ben­e­fits. Pier­son said Local 150 has faced many chal­lenges from local gov­ern­ments over the years, but Scab­by has passed muster as pro­tect­ed First Amend­ment speech.

Busi­ness­es par­tic­u­lar­ly object to using Scab­by in sec­ondary boy­cotts. In these cas­es, work­ers don’t pick­et their own employ­ers, but instead exert pres­sure through tar­get­ing com­pa­nies con­tract­ed with the busi­ness­es. For exam­ple, pick­et­ing and strik­ing trade unions often place Scab­by inflat­a­bles near busi­ness­es that hire the union employ­er for con­struc­tion pur­pos­es. Unlike in boy­cotts against the pri­ma­ry firm, under the Nation­al Labor Rela­tions Act (NLRA), coer­cive and obstruc­tive actions against sec­ondary employ­ers are not pro­tect­ed activities.

Orga­nized labor rep­re­sen­ta­tives argue that under NLRA reg­u­la­tions, unions are held to stricter guide­lines con­cern­ing free speech pro­tec­tions than pri­vate sec­tor busi­ness or oth­er protest­ing enti­ties. Local 150 Gen­er­al Coun­sel Pier­son said recent­ly-set First Amend­ment prece­dent, such as the 2010 Cit­i­zens Unit­ed and 2017 Mas­ter­piece Cakeshop deci­sions, sug­gest a dou­ble stan­dard is being exer­cised against unions for con­tent- and speak­er-based discrimination.

If the West­boro [Bap­tist] Church can pick­et vet­er­ans’ funer­als — Amer­i­can ser­vice peo­ple who’ve been killed in Iraq or Afghanistan — because they’re protest­ing gays in the mil­i­tary, we can’t put up an inflat­able rat?” said Pier­son. And by the way, what’s coer­cive about the inflat­able rat? Let’s remem­ber he’s full of air. He does­n’t talk. I mean, he’s a balloon.”

Rut­gers Uni­ver­si­ty law pro­fes­sor James Pope said lim­its placed on sec­ondary boy­cotts for orga­nized labor efforts impact unions’ effec­tive­ness, as these sorts of actions are essen­tial labor tac­tics. He high­light­ed the Coali­tion of Immokalee Work­ers, a com­mu­ni­ty-based orga­ni­za­tion of farm­work­ers who have led suc­cess­ful sec­ondary boy­cott cam­paigns against major fast food com­pa­nies for using their employer’s tomatoes.

Not very many peo­ple have strong strike pow­er any­more, but if you’re a work­er who can be eas­i­ly replaced, sec­ondary boy­cotts are often cru­cial,” he said. Scab­by the Rat is often deployed at loca­tions where the protest can’t be lim­it­ed to the par­tic­u­lar employ­er that you have in dis­pute with.”

Pope said Gen­er­al Coun­sel Robb is try­ing to move that line over and say things that used to be con­sid­ered more like leaflet­ing, more like pure speech, are now going to be con­sid­ered more like mixed speech and con­duct,” which the NLRA does not pro­tect. Seat­tle Uni­ver­si­ty con­sti­tu­tion­al and labor law pro­fes­sor Char­lotte Gar­den said that if a case reach­es the fed­er­al courts, it might bring the NLRB and the con­ser­v­a­tive-dom­i­nat­ed Supreme Court into conflict.

Cre­at­ing a new oppor­tu­ni­ty for the Court to con­front the sort of cramped First Amend­ment treat­ments that [unions] get might actu­al­ly result in an expan­sion of union First Amend­ment rights,” Gar­den said, adding that the court has been fair­ly absolute about peo­ple’s rights to engage in activ­i­ties like pick­et­ing. It’s hard to imag­ine how or why there would be a par­tic­u­lar carve out for unions.”

As the deci­sion over Scab­by and oth­er union prac­tices play out, look­ing at the rat’s his­to­ry reveals how the NLRB and labor law has always been enmeshed with par­ti­san politics.

Local 150 first had humans dress in rat cos­tumes (which proved too hot and uncom­fort­able) and devel­oped Scab­by in the fall of 1988 to iden­ti­fy unscrupu­lous con­trac­tors to the pub­lic,” said spokesman Maher. They held a nam­ing con­test for Scab­by (the win­ner com­ing from the prac­tice of scab” labor) and main­tained a fleet of rat patrol” cars paint­ed yel­low. Around the same time, the Illi­nois-based Dis­trict Coun­cil 1 of the Inter­na­tion­al Union of Brick­lay­ers and Allied Craft­work­ers start­ed using inflat­able rats, as detailed in a 2013 Vice fea­ture by Sarah Jaffe. Scab­by was brought to life by Big Sky Bal­loons and Search­lights, which has since cre­at­ed oth­er union fig­ures like the Fat Cat,” Greedy Pig” and Bull Dog Bul­ly.” Dis­trict Coun­cil 1 Pres­i­dent James Allen said Scab­by is more effec­tive than the pick­et­ing signs they tra­di­tion­al­ly relied on.

No one real­ly paid much atten­tion,” said Allen. But when you blow up a 14-foot rat, it gets the pub­lic’s atten­tion and also gets the contractor’s atten­tion or the developer’s atten­tion and they don’t like it.”

Allen described Scab­by as the union’s head mas­cot,” and recalled ral­lies where trade unions came togeth­er, dis­play­ing upwards of 25 Scab­bys. But he said Dis­trict Coun­cil 1 no longer uses the inflat­able in instances that don’t legal­ly qual­i­fy as pri­ma­ry pick­et­ing, such as ban­ner­ing or dis­trib­ut­ing infor­ma­tion to the pub­lic, known as handbilling.

In 2011, the NLRB under Chair­man Wilma Lieb­man ruled that dis­play­ing Scab­by at sec­ondary employ­ers was pro­tect­ed under the NLRA. The Board’s opin­ion in Sheet Met­al Work­ers Local 15 stat­ed, “[Scab­by] cer­tain­ly drew atten­tion to the Union’s griev­ance and cast asper­sions on [the con­trac­tor], but we per­ceive noth­ing in the loca­tion, size, or fea­tures of the bal­loon that were like­ly to fright­en those enter­ing the hos­pi­tal, dis­turb patients or their fam­i­lies, or oth­er­wise inter­fere with the busi­ness of the hospital.”

The Oba­ma-era NLRB cement­ed pro­tec­tions for many employ­ees such as grad­u­ate stu­dents. In 2015, the Board also secured a vic­to­ry for unions when it expand­ed the def­i­n­i­tion of joint employ­er” under the Act. The rul­ing there­by extend­ed statu­to­ry rights to employ­ees to engage in bar­gain­ing with con­trac­tors, who often attempt to skirt lia­bil­i­ty in dis­putes through webs of sub­con­tract­ing and oth­er sec­ondary employ­ment relationships.

But now, the Trump-appoint­ed NLRB threat­ens these advances. Grad­u­ate stu­dents at the Uni­ver­si­ty of Chica­go, Yale and Boston Col­lege with­drew their case wor­ried the Trump-appoint­ed NLRB would over­turn prece­dent. Last year, the NLRB reversed the joint employ­er” rule, but the U.S. Court of Appeals for the D.C Cir­cuit affirmed the Oba­ma rule, stat­ing Board mem­ber William Emmanuel did not recuse him­self despite a poten­tial con­flict of interest.

Among union advo­cates, the recent shock of media cov­er­age has brought renewed sup­port for Scab­by. The hash­tag #SaveScab­by made the rounds on social media. Pop­u­lar Twit­ter account @ScabbyTheRat shared, Three hours after find­ing out #NLRB coun­sel Peter Robb intends to get rid of me, I picked up over 1.5% MORE fol­low­ers. Biggest sin­gle day ever. I’ve got­ta ask: is there any­thing more reli­able than the eter­nal incom­pe­tence of Trump appointees?”

The per­son behind @ScabbyTheRat wish­es to stay anony­mous. In an email inter­view they said they help work­ers find local unions and use Scab­by to stand up for the for­got­ten peo­ple who cre­ate all the value.”

For decades work­ing peo­ple have known Scab­by as an inter­na­tion­al sym­bol of protest, of their right to self-defense,” they wrote. On Twit­ter, I’ve lent my own nat­ur­al voice to the account, and I think the voice works in part because I’m a work­ing-class tech­ni­cian by trade and a free­lance writer.”

Moshe Mar­vit, a lawyer and fel­low with The Cen­tu­ry Foun­da­tion, said no mat­ter how the Board rules on Scab­by, his fate could end up in the fed­er­al courts, which are increas­ing­ly filled with Trump-appoint­ed judges. But whether Scab­by is con­sid­ered a coer­cive form of pick­et­ing or a beloved fig­ure of col­lec­tive action pro­tect­ed as free speech, he’s cement­ed him­self in the 21st cen­tu­ry union debate.

What [Scab­by] sig­nals is that there is a labor dis­pute here, so I think that employ­ers, busi­ness­es they sim­ply don’t want that,” Mar­vit said, adding, Peo­ple feel real affec­tion toward the rat because it says some­thing. It’s a sign of pow­er that they can do this. I think that’s why Trump’s NLRB is now try­ing to con­sid­er ban­ning it because it gives work­ers a form of power.”

Han­nah Steinkopf-Frank is a Chica­go-based free­lance writer and pho­tog­ra­ph­er. Her work has appeared in the Chica­go Tri­bune, Atlas Obscu­ra, Bitch Media, the Colum­bia Jour­nal­ism Review, JSTOR Dai­ly and Paper Mag­a­zine, among others.
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