How A Beloved Giant Rat Won Free Speech Rights

Acy Wartsbaugh, an organizer from the International Union of Operating Engineers Local 150, and a couple of construction workers are protesting on a sidewalk in Chicago in late July. They're flanked by a 12-foot-tall inflatable rat named "Scabby." It has pointy teeth, red eyes and depictions of oozing, pus-filled scabs on its belly.

According to a recent decision from the National Labor Relations Board, this giant rat — and its brethren across the country — now have free speech rights, too. Giant inflatable rats have been used for decades as a widely recognized symbol of a labor dispute, but last year, the board signaled it could be persuaded to outlaw their use in certain situations.

Wartsbaugh's union, the Local 150, claims it invented Scabby to protest labor issues almost three decades ago. The term "scab" is slang used by unions to describe strikebreakers.

It started with a simple rat drawing on a protest sign. It elicited so many questions from passersby that the union started making rat costumes for members to scamper around in. The costumes were hot and impractical. So they commissioned giant inflatables, inspired by ones on used car lots surrounding the union hall.

These days, Wartsbaugh says, most people love Scabby. Despite its appearance, union members frequently take Christmas card photos with it, and countless more take selfies when they spot it in the wild.

But the people who hate the rat tend to really, really hate it.

Wartsbaugh says this one has been run over, graffitied with blue paint — Wartsbaugh jokes it was "Smurfed" — and even stabbed.

"One location we were at, an irate lady came out and started stabbing it with a butcher knife," he says. "There's scars right here on the rat where it's been stitched back up to make it work again, but she was going to town, trying to kill Scabby."

Inflatable rat as "the iconic symbol of a labor dispute"

Wartsbaugh says his union members are proud of those scars. It's why they request this particular inflatable animal, even though the union also deploys inflatable cats and pigs. No matter the character, they have the same goal: to draw attention to a company with which the union has a dispute.

"It's the iconic symbol of a labor dispute," Wartsbaugh says. "When they see the rat, without even knowing what's going on, most people understand that it's a labor dispute."

But in this case, Scabby the Rat had been positioned in front of a business, LG Construction, that has little to do with the union's main dispute.

A banner in front of the rat shows the union's real issue is with an entirely different business called Brophy Excavation. The Local 150 wants to shame LG Construction for doing business with Brophy Excavation.

For years, firms have been crying foul about using giant inflatable animals in that way. They say it's unfair and puts them in the crossfire between the union and a totally different company.

"Scabby the Rat has free speech rights"

Philip Miscimarra is a former chair of the National Labor Relations Board. He calls it a "miniature Supreme Court" for labor law. He says the board had always ruled that it's fair to use Scabby just about anywhere. But that changed a bit in late 2020.

"The board, a couple of months ago, solicited briefs and telegraphed the possibility that the board might revisit this area, and view these issues differently," he says.

So Miscimarra wrote a brief on behalf of retail businesses. In it, he argued that installing a giant inflatable rat outside any shop only serves to scare off customers.

"Whether or not you like large inflatable rats, the underlying message is, there's a dispute that these people are having with the party that is directly behind the rat," he says.

Ed Maher with the Local 150 argued that these inflatables should be allowed to roam free under the First Amendment.

"Scabby the Rat has free speech rights," he says. "This is a protected symbol of free speech, pure as that."

After months of deliberation, the NLRB sided with the union on the issue in a 3-1 ruling. In the majority decision issued last month, it says that because the Supreme Court upheld "far more offensive" actions like cross burning and anti-homosexual signs at military funerals as free speech, a giant rat should be protected, too.

That means, for now, Scabby and his inflatable friends can be used as part of a protest wherever unions want. Coupled with a more union-friendly presidential administration, it could be the first in a series of wins for labor.

Even so, Miscimarra says, the inflatable rat's fate could be appealed. If that happens, Maher says his union will be ready for the fight.

"We'll always fight for Scabby," Maher says. "We're fighting for any worker's just most basic right to go out and say, 'I've got something to say, come listen to me.' If this big inflatable rat will encourage people to come listen to him, good."

Maher says they'll continue to deploy Scabby and other huge inflatables because they work. They help draw attention to the labor issues the union wants to focus on.

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