Does Scabby the Rat cause fear — or is the NLRB inflating the balloon’s power? | Opinion

CHICAGO — Labor Day is always a time to honor the nation’s workforce, but this year, we should also reserve some recognition for Scabby the Rat, the inflatable rodent who for nearly 30 years has served as the universal symbol of a labor dispute. Because, if the Trump administration gets its way, Scabby won’t be around much longer.

The National Labor Relations Board’s general counsel recently argued that Scabby violates a provision in federal labor law that prohibits unions from unfairly pressuring people or businesses not central to an employment fight. The legal issue is whether, perched on hind legs and stretching upward of 25 feet to the sky, the displays “coerce” passersby, suppliers and other neutral businesses to take the union’s side. Put otherwise, if the wobbly rat causes people to think twice about patronizing a business, is that because they’ve been reminded to support workers — or because they’re totally freaked out?

Over the years, judges and the previous labor boards tended to view various pests, pets and other objects that vary from traditional picket signs as tools of persuasion. For the current general counsel, the presence of claws, fangs and fiery eyes “mere feet, and sometimes inches, away” from onlookers adds something much darker to the message.

The key question in the litigation should be “how.” If it’s the fangs, then Count Chocula is presumably off the table. Would Yogi the Bear’s sunny demeanor cancel out his claw problem? Oscar is a lovable grouch, but what about that beady stare? Marshmallows are delicious, but the Stay Puft Marshmallow Man terrorized New York in Ghostbusters.

The reality is that the general counsel will not be forced to account for any of these issues. Labor law has never developed a standard for measuring how any cartoon or prop actually impacts decision-making. This has allowed coercion to be analyzed in abstract based on stories invented by lawyers. That people seem to enjoy the Macy’s Thanksgiving Day Parade — with balloons that include a toothy bulldog and an escaped convict named Tough Guy — is beside the point.

Escape from this cycle is possible. Scabby the Rat, Fat Cat and other floating cartoons are encountered in public by real people. If the legality of inflatable objects rests on how customers or neutral parties react to them, the inquiry should center on what science says actually causes them to flee: fear. Specifically, the labor board could require the general counsel to elicit testimony that Scabby the Rat caused someone to credibly fear a consequence labor protest law prohibits, like confrontation, disruption or violence.

Determining how much fear should be illegal is a difficult question. However, considering the options a person has to reduce or eliminate fright in the moment might help draw a line. In fact, research suggests that the more control over a situation someone perceives, the less fear he or she feels. So, interviews may show that for some people, Scabby is indeed scary. And if people find themselves surrounded, with no escape hatch in sight, that’s coercive. But if they, like everyone else, could easily walk past the display, it’s probably not.

No test is perfect, but the NLRB’s current approach to cartoon balloons risks the agency’s credibility. When my toddler saw Scabby the Rat for the first time, she laughed. And that should count for something.

Michael M. Oswalt is an associate professor at Northern Illinois University’s College of Law, where he teaches labor and employment law. A version of this piece originally appeared in the Chicago Tribune.