Especially in New York, where Local 79 Construction and General Building Laborers is located, getting busy pedestrians to take notice is a challenge for Kraft and his fellow union members. “But the rat gets people to stop and ask questions about what’s going on,” he says. “That’s why we use it.”

Now, however, the giant inflatable rat’s days may be numbered. As lawsuits by employers fighting the use of the rat at their job sites pile up and move deeper through the court system by way of appeals, many say that one of these cases could end up in front of the Supreme Court.

“As a management lawyer, I would like to see this get decided by the Supreme Court because there are many employers that are impacted by this conduct,” says Kathryn Davis, an attorney in the San Francisco office of Morrison & Foerster. “Particularly now as the unions step up their recruitment drives and attempts to reinforce membership, we are going to see more of it.”

Two of the cases that are among the furthest along in the appeals process may signal the death knell for the rat. In The Ranches at Mount Sinai v. Laborers Eastern Region Organizing Fund and Concrete Structures v. Laborers Eastern Region Organizing Fund, an administrative law judge ruled in a single judgment that the union’s use of an inflatable rat at a job site constituted unlawful picketing.

As with many of these cases, the union in the case argued that the inflatable rat was a prop to get the public’s attention and thus should be protected under the First Amendment. Employers countered that using the rat, which is a well-known symbol of anti-union labor, along with fliers, is the same thing as picketing and thus should be restricted as such.

The union has appealed the decision, which will go before the National Labor Relations Board within the next several months. But the outlook appears grim for the rat. In the NLRB’s May report on case developments, General Counsel Arthur Rosenfeld discussed how the board had found that the use of the rat constituted unlawful picketing.

“This is the potential Pied Piper case,” says Gerald Hathaway, a partner at the law firm of Littler Mendelson. “It will be an opportunity for the National Labor Relations Board to decide that all uses of the rat would constitute picketing.” While this does not mean that the inflatable rat will disappear altogether, it may become an endangered species as unions avoid having their protests viewed as actual picketing.

Even if the rat is exterminated, however, there are other animals that unions can turn to, says Lowell Peterson, an attorney at New York-based Meyer, Suozzi, English & Klein who is representing the Laborers Eastern Region Organizing Fund. Already some unions have started using skunk and cockroach balloons, he says. “There are plenty of other animals.”

—Jessica Marquez