Trump tries to deflate Scabby the Rat
NLRB takes issue with ‘menacing’ union protest balloon
By Ted Cox
The Trump administration is hunting down rats — and free-speech union protests at the same time.
Under President Trump, the National Labor Relations Board has switched positions and come out against Scabby the Rat — an inflatable figure usually about 10 feet tall typically used to shame businesses in union protests.
As the Chicago Tribune reported this week, the figure was developed at the request of the local Bricklayers Union in 1990 by Big Sky Balloons in Plainfield. But it’s since become a common figure at union protests across the nation. Big Sky makes them in sizes ranging from 6 to 25 feet tall, and it sells two or three a month, on average, at prices ranging from $2,600 to $9,300. It also makes inflatable figures of cockroaches, “Fat Cats,” and “Greedy Pigs.”
A “scab,” of course, is an old union term meaning someone who tries to replace a worker who’s on strike or been illegally removed by a business.
Under the Obama administration, the NLRB defended the use of Scabby the Rat in union protests. But under Trump the NLRB has now filed a brief on a case in Philadelphia stating that “their use is unlawful … and not protected under the First Amendment.”
NLRB General Counsel Peter Robb submitted the brief last month. It took issue with a chief administrative law judge’s May ruling that Scabby the Rat was legal over three days of protests last summer staged by the International Brotherhood of Electrical Workers outside the Fairfield Inn in Philadelphia.
Robb argued the judge was wrong to allow Scabby the Rat, as “the activity here is confrontational conduct that is tantamount to secondary picketing,” meaning picketing that threatens the hotel business and the Libertine Restaurant on site rather than the union’s primary target.
“Use of inflatable rats at or near a neutral’s business entrance, whether or not considered picketing, is confrontational, threatening and coercive,” Robb wrote. They were therefore illegal, “because they are being used specifically to menace, intimidate and coerce in aid of an unlawful purpose — a secondary boycott,” he added, and “had an intimidating, menacing and coercive effect, causing customers to avoid these businesses.”
Electrical workers were picketing a business that had handled renovation of the hotel, but Robb found that the protest threatened the business of the hotel itself and the Libertine Restaurant.
Robert Bruno, professor of labor and employment relations at the University of Illinois at Urbana-Champaign, where he’s director of the Project for Middle Class Renewal, said those arguments were specious. “The use of inflatable balloons by unions during labor disputes has been for decades and should remain clearly protected First Amendment speech,” he said Friday. “Stationary balloons are peaceful examples of expressive activity and not remotely forms of picketing or coercive activity. The NLRB general counsel’s description of the inanimate cartoon-looking fixtures as menacing is a transparent attempt to deny workers their right to speak truth to power.”
The New York Times reported last week that the NLRB was taking issue with inflatable shaming balloons in a handful of cases across the nation and with an Obama administration ruling that their use did not constitute picketing. That followed established case law in which “judges and courts have consistently found that the rat did not constitute picketing, a regulated and restricted action, and was instead a protected form of free speech.” The Times pointed out the five-member NLRB has a Republican majority under Trump, and Robb is a Trump appointee.
Union lawyers, of course, have argued similarly that the balloons do not constitute picketing — primary or secondary — and are protected under the First Amendment as free speech. The Times quoted Jerry Gozdyra, an organizer with Local 1 of the Union of Bricklayers and Allied Craftworkers in New York, as saying, “This is just a balloon! How intimidating could it be?”
“It seems the board’s general counsel has little regard for the speech rights of citizens, when spoken as workers,” Bruno said with added emphasis. “It seems the counsel’s position is more about trying to pick the winner in a labor-management dispute than it is about interpreting the (National Labor Relations Act) or Constitution.”