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Scabby The Rat On The Chopping Block

For decades, unions have used Scabby the Rat as a protest symbol. The giant inflatable rat is most commonly used by unions to protest on job sites where contractors are employing non-union labor. The use of the rat has come under scrutiny over the years, as courts and the NLRB have weighed in on whether the rat is unlawfully coercive secondary picketing, or whether it is a lawful exercise of a union’s free speech rights.

NLRB General Counsel Peter Robb has advocated for the former interpretation of Scabby’s legal status. Robb has signaled that Scabby’s days are numbered and the current NLRB seems to be moving in that direction. 

This year, however an ALJ ruled that the use of the 12-foot inflatable rat was not coercive where it was used to protest alleged safety violations of a secondary employer. The NLRB announced this week that it is inviting public briefs in that case, asking the public if it should restrict the use of Scabby. This Board has taken the same approach in the past, soliciting public briefing before issuing employer-friendly decisions. A decision could come next year on Scabby’s fate. 

© 2020 BARNES & THORNBURG LLPNational Law Review, Volume X, Number 302
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About this Author

Thomas Payne Labor and Employment Attorney Barnes Thornburg Law Firm Indianapolis
Associate

Thomas Payne is an associate in the Indianapolis office of Barnes & Thornburg, where he is a member of the Labor and Employment Department.

Prior to joining Barnes & Thornburg full time, Thomas served as a summer associate in the firm’s Indianapolis office. He also gained experience as a pro bono law clerk for the Indiana Office of the Attorney General and for the Honorable Lance Hamner of the Johnson County Superior Court.

With an eye toward becoming a lawyer, Thomas began his education at Purdue University,...

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