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New General Counsel for Labor Board May Change Fate of ‘Scabby the Rat’

National Labor Relations Board (NLRB) Acting General Counsel Peter Ohr has filed a motion with the board to stop processing a case on whether to change NLRB standard for determining the lawfulness of union displays of stationary banners and inflatable rats at the workplace of a neutral employer.

He also asked that the case be remanded to the regional director (who will dismiss it) or be dismissed by the board.


The National Labor Relations Act (NLRA) protects employees’ right to strike and the right to publicize that strike by peaceful picketing. A strike is not necessary for a picket line because unions have the right to publicize their issues even without a strike.

Employees and unions are not limited to using picketing as a vehicle to publicize their issues. A common, less impactful method is handbilling.

Picketing can be unlawful. For instance, “secondary” picketing directed at a neutral employer to coerce it to cease working with a company that is a party to the labor dispute is unlawful.

However, where picketing is unlawful, handbilling is protected. Decades ago, building trade unions augmented their lawful handbilling by accompanying it with an inflatable rat or a large banner proclaiming their message. It became apparent to some that the rat or banners were stand-ins for the picket line. Construction employers started noticing deliveries would not be made and some refusals to work.

Case at the Board

The legal question became is the rat the functional equivalent of the picket line? If it is unlawful to picket, does handbilling with an inflatable rat cause the same disruption?

The NLRB requested friend-of-the-court briefs seeking comments as to whether it should overrule its cases finding nothing in the NLRA prohibited exhibiting stationary banners, whether there should be an expansion of non-picketing conduct deemed unlawful, and whether any potential violation of the NLRA might infringe upon the First Amendment. Lippert Components, 370 NLRB No. 40 (Oct. 27, 2020). For details of the legal twists and turns, see our article, Why Is ‘Scabby the Rat’ a Legal Dilemma?

Twenty-four briefs were filed with the board in response. By mid-January, the case was ready for a decision. Within weeks of being appointed to his position, Ohr filed his motion. The NLRB will be deciding on the motion.


The NLRB has been considering “rat” cases for almost 20 years. During that time, Republican-appointed general counsels have pressed to find use of the rat (or bannering) to be unlawful, only to be reversed under a Democrat administration. Today, the issue is ripe for decision by an NLRB comprised of three Republicans and one Democrat. If the NLRB rejects Ohr’s motion and holds a union’s use of an inflatable rat is unlawful, that decision likely will be appealed in the federal circuit courts. Ultimately, the U.S. Supreme Court may need to rule on this issue.

As a practical matter, even if Scabby is ruled unlawful, unions likely will find another attention-grabbing stunt.

Jackson Lewis P.C. © 2020National Law Review, Volume XI, Number 48



About this Author

Jonathan J. Spitz, Jackson Lewis Law Firm, Labor Employment Attorney, Atlanta

Jonathan J. Spitz is a Principal in the Atlanta, Georgia, office of Jackson Lewis P.C. He is Co-Leader of the firm’s Labor and Preventive Practices Group.

Mr. Spitz lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media issues and the changing regulatory landscape. He understands the practical and operational needs of corporate America, helping design pragmatic strategies to minimize risk and maximize performance. He has represented...

Richard F. Vitarelli Principal Jackson Lewis

Richard F. Vitarelli is a Principal in the Hartford, Connecticut, office of Jackson Lewis P.C. Part of the firm’s national labor practice, he has over two decades of experience representing employers nationally in strategic labor relations, collective bargaining, and union organizing, including in the context of mergers and acquisitions, corporate restructuring and contract administration. He serves as general labor and employment counsel for employers and multi-employer associations in various industries, including construction, manufacturing, health care and senior living,...

Thomas V. Walsh, Jackson Lewis, employment arbitration Lawyer, White plains, Union Organizing Attorney

Thomas V. Walsh is a Shareholder in the White Plains, New York, office of Jackson Lewis P.C. Since joining the firm in 1986, Mr. Walsh has represented employers in all aspects of labor and employment law and litigation.

Mr. Walsh has represented employers before numerous state and federal courts, regulatory agencies, as well as in numerous arbitrations. Mr. Walsh has extensive experience in representing employers faced with union organizing drives and in proceedings before the National Labor Relations Board. He has an...