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NLRB Invites Briefs on Bannering and Displays of “Scabby the Rat”

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Washington, DC – In an order issued today, the National Labor Relations Board invited parties and amici to submit briefs in International Union of Operating Engineers, Local Union No. 150 (Lippert Components, Inc.), 370 NLRB No. 40. In the underlying case, the Administrative Law Judge found that the union’s stationary display of a 12-foot inflatable rat and two large banners on public property did not constitute picketing or otherwise coercive nonpicketing conduct in violation of Section 8(b)(4) of the National Labor Relations Act. In the notice and invitation to file briefs, the Board seeks public input on the following questions:

1) Should the Board adhere to, modify, or overrule Carpenters Local 1506 (Eliason & Knuth of Arizona), 355 NLRB 797 (2010), and Sheet Metal Workers Local 15 (Brandon Regional Medical Center), 356 NLRB 1290 (2011)?

2) If you believe the Board should alter its standard for determining what conduct constitutes proscribed picketing under Section 8(b)(4), what should the standard be?

3) If you believe the Board should alter its standard for determining what nonpicketing conduct is otherwise unlawfully coercive under Section 8(b)(4), what should the standard be?

4) Why would finding that the conduct at issue in this case violated the National Labor Relations Act under any proposed standard not result in a violation of the Respondent’s rights under the First Amendment?

Chairman Ring and Members Kaplan and Emanuel joined in issuing the notice and invitation; Member McFerran dissented.

Briefs by the parties and amici not exceeding 25 pages in length shall be filed with the Board in Washington, DC on or before November 27, 2020, and December 28, 2020, respectively. The parties may file responsive briefs on or before January 11, 2021, which may not exceed 15 pages in length. The parties and amici shall file briefs electronically by going to and clicking on “E-Filing.” If assistance is needed in E-Filing on the Agency’s website, please contact the Office of the Executive Secretary at 202-273-1940.

Click here to read the notice and invitation to file briefs.

Established in 1935, the National Labor Relations Board is an independent federal agency that protects employees, employers, and unions from unfair labor practices and protects the right of private sector employees to join together, with or without a union, to improve wages, benefits and working conditions. The NLRB conducts hundreds of workplace elections and investigates thousands of unfair labor practice charges each year.