The giant inflatable rodent set up by unions outside of New York City construction projects is getting challenged in court. An advice memo from the general counsel at the National Labor Relations Board says inflatables, including famed Scabby the Rat, should be illegal for unions to use in protest. As Gothamist reported, Peter Robb, the President Donald Trump-appointed general counsel for the NLRB, said the big balloons like Scabby are “coercive” and “unlawful.”
Unions have used rats as a symbol of protest for more than 40 years, with the term “rats” or “scabs” describing those who replace union workers during a labor strike.
While the first reference in print to a union protest involving an inflatable rat can be traced to a 1976 New York Times article, Scabby the Rat as we know it today got its start in 1990. Illinois-based company Big Sky Balloons and Searchlights is credited with designing Scabby’s iconic beady red eyes and buck teeth for a Chicago-based bricklayer and allied craftworkers union. The company now sells other inflatables like “fat cats,” “greedy pigs,” and “union bugs.”
In December, Robb asked attorneys with the board to revive a complaint previously dismissed by the NLRB, as Bloomberg Law reported earlier this year. During a labor dispute in Chicago, representatives from the union set up a “large, inflatable fat, 10 to 15 feet tall, clutching a construction worker by the neck,” the memo reads.
The company, Summit Design + Build, filed a complaint with the NLRB, which was eventually settled. But, according to Gothamist, Robb used this complaint to argue that inflatables create a “confrontational barrier to anyone seeking to enter or work.” He argues banners and balloons like Scabby should qualify as commercial speech and be subject to regulation, and ultimately be considered “unlawful secondary picketing.”
An ongoing protest on Staten Island is also part of the NLRB’s fight against inflatables. Last month, the owner of a ShopRite filed a complaint with the board about two Scabby the Rats that were set up outside of the store. The board asked a federal judge to issue a preliminary injunction to end the protest; U.S. District Judge Nicholas Garaufis denied the request on July 1, according to Bloomberg.
Garaufis called the protest “peaceful” and protected by the First Amendment, ruling in favor of Construction & General Building Laborers Local 79. But despite the rejection, the case will continue on, with an administrative law judge expected to examine it this month.
Union attorney Tamir Rosenblum told Bloomberg: “This judge has basically written a decision that very clearly elucidates why it is that this project that the Trump general counsel is engaged in is just manifestly illegal under the constitution.”
If the administrative law judge does find the inflatables to be secondary picketing, illegal under federal labor laws, the decision would reverse previous rulings. In 2011, under President Barack Obama’s administration, the board ruled that Scabby represents a form of symbolic speech guaranteed by the First Amendment. And in 2014, a federal judge in Brooklyn backed the right of a local union to use the rat in protest.
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