According to Bloomberg, Trump’s General Counsel appointee to the NLRB has been looking for a way to make Scabby illegal since April of 2018. One source told them “GC hates the rat.” Robb “wants to find it unlawful to picket, strike or handbill with the rat present.” Before coming to the NLRB, Robb was a management-side lawyer and helped President Ronald Reagan break the PATCO strike.

Scabby has been a symbol of job actions since the early 90’s. Standing anywhere from 12 to 30 feet tall, Scabby is often put outside of employers offices or job sites when they fail to fairly negotiate or refuse to use skilled union labor. Not only is it an attention getter, but it also allows everyone in the community to know that the employer is a rat and may be using scab labor.

In December, Robb ordered agency attorneys to reopen a complaint by an Illinois excavation company over the use of the inflatable rat. The case, which was under Democratic control at the time, found that the use of a rat or other inflatables were protected under the First Amendment. However, now that the board is in the hands of Trump’s political appointees that ruling could change.

Observers say that Robb and the attorneys who want to limit the use of inflatables will argue that inflatables violate the secondary boycott provisions of the NLRA and to engage in that kind of behavior because it’s much more like picketing, than hand-billing or passing out flyers. Attorneys who filed a motion for an injunction against Scabby said: “Even if this conduct was not tantamount to picketing, it was nevertheless unlawfully coercive and not shielded by the First Amendment because the Union was engaged in labor and/or commercial speech, both of which are entitled to lesser constitutional protection.”

The reality is that bosses don’t like the use of inflatable rats, fat cats, and pigs, because they embarrass the bosses and the company. While someone can drive past an informational picket or a group passing out flyers and miss the message, they will see a giant inflatable rat. Everyone knows that these props are an effective tool at getting the bosses to sit down and work with the union.

One positive could come out of this case though. At least one labor scholar Charlotte Garden, a constitutional and labor law professor at Seattle University School of Law, told Bloomberg that there is a strong possibility that if this case goes to trial, the courts will end up finding that rats and banners are protected speech, which would strengthen unions ability to use them to pressure employers into doing what is right.