NLRB Decided to Let Union Bannering and Use of Scabby the Rat Continue

August 20, 2021

In a July 21 decision, the National Labor Relations Board (NLRB or Board) in Lippert Components, Inc.,  found that a union did not violate the National Labor Relations Act (NLRA) by displaying a 12-foot inflatable rat (known as Scabby the Rat) and two large banners, one targeting a neutral employer, near the public entrance to a trade show.  

AGC filed an amicus brief in the case in December, urging the Board to change the standard for assessing such displays established during the Obama administration and to find the union’s conduct unlawful.  Under that standard, displays of bannering and inflatable rats, even when targeting neutral employers, are assessed under the permissive standard applied to handbilling rather than the more stringent standard applied to picketing.  AGC argued that such displays, when advertising a labor dispute at the approach or adjacent to the business of a neutral employer, rely on the same core physical element that makes picketing inherently intimidating.  Despite the absence of patrolling, the displays create a physical or symbolic line that employees, customers, and suppliers must confront and decide whether to “cross” to access the employer’s facility.  Unlike handbilling, the conduct relies on more than pure publicity to achieve its desired result – it relies on publicity plus confrontational conduct.  Consequently, AGC argued, it should be subject to restriction under NLRA Section 8(b)(4)(ii) and to a lower degree of protection under the First Amendment.

The NLRB general counsel during the Trump administration filed the complaint in the case, but his successor sought to dismiss the complaint.  The Board granted the dismissal, maintaining the status quo standard.  The new NLRB chairman relied on prior precedent in her opinion.  Two other Board members concurred in the decision to dismiss based on First Amendment concerns.  The fourth Board member dissented based on the same arguments made by AGC.

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

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