A giant inflatable rat commonly used by unions at picket sites can continue to see the light of day, a labor regulator has decided.
For decades, the balloon rodent, affectionately known as "Scabby" by labor groups, has been a common fixture at worksites and at union protests, with its snarling fangs and scab-covered belly a reliable signal that a union has a dispute with a nearby company or worksite. The rat, and its lesser-known cousins, a "fat cat" and a "greedy pig," range in size from 6 feet to 25 feet high.
Judges have long held that this menagerie constitutes protected free speech and can be used in public as long as the balloons don't block entrances and exits to a job site.
But under the Trump administration, the National Labor Relations Board seemed poised to exterminate Scabby — or at least clip its inflated tail. Peter Robb, then the general counsel for the NLRB, opined that a union's use of inflatable animals at the site of a business that did not have a direct dispute with a union constituted "illegal picketing" and did not deserve free-speech protections.
The case in question involved the International Union of Operating Engineers Local 150, which is headquartered just outside Chicago. The union had accused MacAllister Machinery of unfair labor practices. The local brought Scabby to a trade show to protest Lippert Components, a supplier to MacAllister. That made Lippert a "neutral" third party to the union's dispute — and, Robb argued, an unfair victim of the union's "confrontational, threatening and coercive" tactics.
These tactics were not protected by the First Amendment, Robb argued, because their end goal — a boycott of Lippert Components — was illegal, and because the union's complaints were "labor speech engaged in with an eye toward a commercial end," and therefore deserving of "lesser" First Amendment protections.
But the NLRB disagreed this week. By a three-to-one decision, the board found that the rat's use fell within the grounds of free speech.
"Indeed, the Supreme Court has repeatedly held that other confrontational — and far more offensive — forms of expressive activity are within the protection of the First Amendment," wrote two of the board's Republican appointees, pointing out to the court's upholding of cross-burning, flag-burning and anti-gay demonstrations. "Surely, if the First Amendment protects this conduct, prohibiting an inflatable rat and stationary banners shaming a secondary employer would raise significant constitutional concerns."
The union praised the decision, saying it was "a long time coming."
"We've held from the beginning that Scabby the Rat has court-tested free speech protection, so we are pleased with the decision today, and particularly the support from members of both parties," Ed Maher, communications director for Local 150, said in an email. "This attack on Scabby was former General Counsel Robb's pet project, and his arguments have been rejected everywhere they've been made. Scabby is a symbol of free speech and we'll never stop fighting for that."