AGC Urges NLRB to Redefine Picketing in Bannering and Scabby the Rat Case

January 4, 2021

In an amicus brief filed on December 23, AGC of America urged the National Labor Relations Board to change its standard for determining the lawfulness of union displays of stationary banners and inflatable rats at the workplace of a neutral employer. The Board invited interested parties to submit amicus briefs in the case International Union of Operating Engineers, Local Union No. 150 (Lippert Components, Inc.), Case 25–CC–228342. The case provides an opportunity for the Board to reconsider the permissive approach established by the Obama Board in the 2010 Eliason & Knuth decision on bannering and in the 2011 Brandon Regional Medical Center case on Scabby the inflatable rat.

AGC’s brief argues that the Board should overrule those decisions and adopt a new definition of picketing. The Board erred in Eliason & Knuth and Brandon Regional Medical Center when it adopted a standard requiring movement or patrolling for conduct to be deemed picketing, AGC maintains. When a union displays banners or inflatable rats advertising the existence of a labor dispute at the approach or adjacent to a neutral employer’s facility, it is relying on the same core physical element that makes picketing inherently intimidating, whether or not the union is patrolling. Accordingly, the Board should adopt a standard that defines picketing as the advertising of a labor dispute by the posting of individuals at the approach or adjacent to a place of business in a manner that amounts to “publicity-plus” – i.e., publicity plus confrontational conduct. While mere publicity would be protected by the First Amendment, publicity that is accompanied by confrontational conduct should be subject to a lower degree of protection, AGC explains.

The timing of a decision in the case is unknown, but AGC is hopeful that the Board will rule before Democrats are likely to take control over the Board following the expiration of Republican member William Emanuel’s term in late August 2021.

For more information, contact Denise Gold, associate general counsel, at (703) 837-5326 or

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