An age old question under the National Labor Relations Act is what constitutes “picketing”?  By the Supreme Court’s definition, picketing is inherently coercive and may not be directed against a neutral employer.  An issue that has vexed employers for the last several years has been the use of stationary protests, such as inflatable rats and banners, calling out neutral companies for doing business with the employer.  For approximately 10 years, which in recent Board history is as longstanding as precedent gets, the Board has ruled that such stationary protests are not coercive and, therefore, not unlawful under the Act.

As foreshadowed by the NLRB’s Division of Advice last year, the Board, on October 27, 2020, published a notice and invitation to file briefs addressing issues concerning the legal standard applicable to unions’ use of the most recognizable signs of unionism and labor disputes in urban areas today – inflatable rats and banners.  The practice is so common that it spawned a new verb:  bannering.


Section 8(b)(4)(i) of the NLRA prohibits labor organizations, or their agents, from inducing or encouraging secondary (i.e., neutral) employees from participating in certain prohibited activities, and Section 8(b)(4)(ii) protects secondary employers from threats, coercion or restraint.

In 2019, in International Union of Operating Engineers, Local Union No. 150 a/w International Union of Operating Engineers, AFL-CIO and Lippert Components, Inc., Case No. 25-CC-228342, 370 NLRB No. 40 (2020), an Administrative Law Judge (“ALJ”) found that the Union’s stationary display of a 12-foot inflatable rat and two large banners, which read “OSHA Found Safety Violations Against [the Primary Employer]” and “Shame on [a Neutral Employer] for Harboring Rat Contractors,” did not amount to picketing or coercive non-picketing conduct under the NLRA.

The ALJ relied on two cases, Eliason & Knuth of Arizona, 355 NLRB 797 (2010) and Brandon Regional Medical Center, 356 NLRB 1290 (2011), in making her decision.

  • In Eliason, the NLRB found that the display of large, stationary banners, which announced a labor dispute, shamed the neutral employer and urged the public not to patronize the neutral employer, did not rise to the level of proscribed picketing because they were neither confrontational (unlike a patrolled picket) nor coercive (e., they did not disrupt or threaten to disrupt the neutral employer’s operations).
  • The NLRB found in Brandon Regional Medical Center that the presence of a 16-foot inflatable rat mounted on a trailer on public property outside of the neutral employer’s place of business was not unlawful picketing or otherwise coercive conduct.

In response to the ALJ’s decision, the Board’s General Counsel, consistent with prior advice on the subject, has requested that the NLRB overrule Eliason and Brandon Regional Medical Center because those decisions resulted in narrower definitions of picketing and coercion, created “vague and imprecise” standards, and, according to the General Counsel, strayed from NLRB precedent and Section 8(b)(4) of the NLRA. The General Counsel equates the rat and banner display in this case with classic picketing or coercive conduct that unlawfully pressured the neutral employer to no longer conduct business with the primary employer involved in the labor dispute.

Issues for Consideration by the Board

Parties and amici are invited to file briefs on or before November 27, 2020, to aid the NLRB in its consideration of the following questions:

  1. Should the NLRB adhere to, modify or overrule Eliason and Brandon Regional Medical Center?
  2. If you believe the NLRB 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 NLRB should alter its standard for determining what non-picketing 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 NLRA under any proposed standard not result in a violation of the Respondent’s rights under the First Amendment?

Member McFerran’s Vigorous Dissent

Member Lauren McFerran dissented, stating that the NLRB should decide this case without comment pursuant to existing law. McFerran asserts that the General Counsel is threatening employees’ First Amendment right to free speech – which affords protection even to speech that is unsettling or offensive in this context – by asking the NLRB to overrule well-established precedent concluding that the use of stationary inflatable rats and banners to publicize a labor dispute is lawful under Section 8(b)(4). In support, McFerran cited numerous NLRB and federal court decisions affirming and applying existing Board precedent, including 12 NLRB decisions since the 2010 Eliason decision where the NLRB has declared stationary banners or inflatables lawful under the Act.


Inflatable rats and banners are a universal protest symbol for labor unions throughout the country, and they are often parked outside of neutral employers’ offices to signal opposition against primary employers and/or non-union contractors with which the labor union has a dispute. Likely due to recent criticism by not accepting comment after overturning well-established precedent, the Board has opened the door to all constituencies to comment on this hotly-contested issue, inviting contemporary interpretation of the scope of picketing and coercive conduct under Section 8(b)(4) of the NLRA.  The impact of a potential decision that overturns Eliason and Brandon Regional Medical Center could be significant, in that it may dramatically change the tactics available to unions in exerting pressure on neutral employers in the cross-hairs of a labor dispute.  For some short period anyway, maybe even as long as 10 years!

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Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice…

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice Group.

Some recent highlights of his career include:

  • Successfully defended client against allegations that it had terminated a union supporter and isolated another. T-Mobile USA, Inc., 365 NLRB No. 15 (2017).
  • Successfully appealed NLRB findings that certain of client’s written policies violated the National Labor Relations Actions Act.  T-Mobile USA, Inc., 363 NLRB No. 171 (2016), enf’d in part, rev’d in part 865 F.3d 265 (5th Cir. 2017).
  • Represented major utility in NLRB proceedings related to organizing of planners.  Secured utility-wide bargaining unit. Bargained on behalf of grocery chain.  After negotiations reached an impasse, guided the company through lawful implementation of five year collective bargaining agreement.
  • Coordinated employer response in numerous strike situations including a work stoppage across 14 western states of the client’s operations.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in a variety of industries, including national, multi-unit, multi-location, multi-employer and multi-union bargaining. Mark has handled lockout and strike situations, coordinating the clients efforts.

In addition, Mark has handled hundreds of arbitrations involving virtually every area of dispute, including contract interest arbitration, contract interpretation, just cause termination/discipline, benefits, pay rates, and hours of work.

Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.