Scabby the Rat Is Under Attack

In the late 20^th 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 21^st 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.”