No more ‘Scabby’? A Philly case means Trump’s NLRB could outlaw the ubiquitous union rat

Are inflatable rodents “legitimate communication” or “unlawful coercion”?

Inflatable union rats were set up at 6th and Chestnut for weeks before the developer filed an injunction against them.

Inflatable union rats were set up at 6th and Chestnut for weeks before the developer filed an injunction against them.

Michaela Winberg / Billy Penn
michaelawinberg-square-crop-feb2018

The block next to Independence Mall for the past two weeks has been host to seven giant inflatable rats, looming along both sides of the sidewalk.

In Philadelphia these days, “Scabby the Rat” is so commonplace that residents usually walk by without missing a beat.

“Sometimes people think it just means that the building has rats,” Ken Devenny, a former picket line captain with the Roofers Local 30 union, told Billy Penn outside the Public Ledger Building on Monday.

But as of Tuesday afternoon, the blow-up critters were gone — and you might never see them again.

Heights Advisors, developer of the Public Ledger Building at 6th and Chestnut, recently filed an injunction against the unions that brought out the rats, on grounds that they constitute unlawful picketing.

It’s the most recent salvo in an ongoing countrywide battle over the inflatable characters, which are a common tactic used by building trades and other unions to draw attention to contractors who use non-union labor. The fight over whether and how they’re legal has been in and out of court for decades.

By the end of this year, the National Labor Relations Board might outlaw Scabby entirely — thanks to a Philly protest that happened 16 months ago.

“[This NLRB case is] a really big deal,” said Wally Zimolong, the lawyer representing the Heights Advisors and also the owners of the building at the heart of the year-ago protests. “The rats have been around for quite some time. They’ve been common.”

The question the NLRB must decide: Is the ubiquitous union critter a form of “legitimate communication” or “unlawful coercion”?

The union rat has become ubiquitous on Philly sidewalks.

The union rat has become ubiquitous on Philly sidewalks.

Michaela Winberg / Billy Penn

Bullhorns struck down, rats still pending

Hardly a cloud was in the sky above Philadelphia when Local 98 unknowingly opened the door to a potential national policy change regarding union action.

On a sunny, 80-degree day in June 2019 at the the Marriott-owned Fairfield Inn on 13th Street near Spruce, building trades staffers blew up an 8-foot-tall union rat to protest the hotel’s use of a non-union company to complete renovations.

The next day, they set up two rats — which took up so much space that they had to move hotel-owned tables and chairs to accommodate. The day after that, the union brought out a bullhorn.

That’s when the Fairfield Inn threw up a flag. Since they were a neutral employer — meaning they didn’t pay any non-union employees directly, just the contractors that hired them — they argued the giant-rats-and-bullhorn combo was a form of illegal picketing.

“Picketing directed at a neutral employer is always an unfair labor practice,” lawyer Zimolong said. “Where the cases arise is trying to figure out, well, what does picketing mean?”

An administrative judge for the NLRB ruled in May 2019 that the bullhorns were extra — and indeed a form of illegal picketing. But the rats, in all their scabby, yellow-teethed glory, were fine.

That’s not shocking, since administrative judges are generally instructed to go along with precedent. So the Fairfield Inn, via Zimolong, kicked the case up to the NLRB. That gave the five-member board the power to actually change the standard if they so choose.

The board could totally illegalize the bloated rodent outside the sites of any neutral employers. Or they could side with the Obama-era NLRB, allowing the inflatables under almost any circumstance.

NLRB: It has a ‘threatening and coercive effect’

Observers believe there’s a good chance that the current NLRB, full of conservative members appointed by President Donald Trump, will likely rule differently than the board of yesteryear. The office already wrote in a July 2019 brief that the inflatable rat has a “threatening and coercive effect.”

If they lose the right to inflate, at least one union rep feels it’ll be a major problem.

“The rats represent area standards and wages,” Local 30’s Devenny said. “That’s your constitutional right. It’s a protest, so we have that right.”

Representatives from other unions did not return multiple requests for comment.

Since the Trump was elected, there have been rat-related inquiries all over the country. The issue has come up in New York and Chicago, but the NLRB declined to consider those cases, handing both over to district court, where local judges ruled in favor of the unions.

But Philly’s Fairfield Inn case is actually being heard by the NLRB itself. When the board rules, it will set the new precedent.

“The question now is how far will the board go?” Zimolong said. “By the extent of their order, they’re establishing the parameters of if and when the rat can be employed.”

Whatever the decision, either side could appeal, after which the case would go to the Third Circuit Court and eventually, if needed, to the U.S. Supreme Court. Per Zimlong, an initial NLRB ruling is expected before the end of 2019.

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