As first reported on the terrifc blog NLRB Insight published by the US Chamber of Commerce, the NLRB recently ruled that the common union picketing tactic of placing a large and menacing inflatable rat in front of a neutral secondary employer’s place of business does not violation the NLRA.
In Sheet Metal Workers Local #15 (Brandon Regional Hospital), 356 NLRB No. 162 (May 26, 2011), the Board held that the large inflatable rat, like the banner in Eliason, was constitutionally protected expression and did not violate the NLRA. A copy of the Board Decision‘s is available here.
In Brandon Regional Hospital Union members in a dispute with a non-union firm set up a 12 foot inflatable rat in front of hospital where the non-union firm was working. The union also staged a mock funeral procession in front of the hospital, distributed handbills stating that going to the hospital would be a “grave affair,” and listing medical malpractice lawsuits filed against the hospital. As this activity was occurring, the hospital’s safety and security director asked the Union’s organizer what the Union was doing. The organizer replied that the Union was “picketing” and explained that the rat balloon “would probably get the attention of the public more than just regular handbills.”
The Board concluded:
“that neither the rat display nor Holly’s leaflet display constituted picketing. These displays, like the banner displays in Eliason, entailed no element of confrontation, as they were stationary and located at sufficient distances from the vehicle and building entrances to the hospital that visitors were not confronted by an actual or symbolic barrier as they arrived at, or departed from, the hospital. Further, there was no evidence that Holly or the individuals attending the rat physically or verbally accosted hospital patrons; nor does the evidence indicate that they were “posted” near the hospital “in a manner that could have been perceived as threatening” to hospital patrons.”
As Michael Eastman of NRLB Insights properly states after this ruling:
“It is difficult to imagine that the union lobby ever could have convinced Congress to reduce or eliminate secondary boycott protections designed to protect neutral employers from labor disputes not of their making. Now, however, with decisions such as Eliason and Brandon Regional Hospital, the unions appear to be well on their way to achieving that goal.”
I would add that on the heals of Eliason, Silverline Construction, and Forcine Concrete & Construction Co., Inc., short of outright thuggery, it is difficult to envision what conduct the Board would sanction as coercive
Wally Zimolong
Wally represents contractors (and subcontractors) and developers. His clients build and develop residential, commercial, and industrial properties nationwide. Wally enjoys working with the owners of the businesses he represents because they tend to be entrepreneurs and all around interesting people.
