On May 26, 2011, in Sheet Metal Workers Local 15 (Brandon Regional Medical Center), the NLRB (or “Board”) ruled that it is lawful for unions to place large inflatable rats at secondary employer locations (companies not directly involved in a dispute with a union). The Board essentially found that the mere presence of the large rat balloon did not coerce, threaten, or restrain the secondary employer. Thus it found that the inflatable rat was a peaceful expressive activity, devoid of the sort of confrontation typically found in unlawful picketing.
The background of the case is as follows. Brandon Regional Medical Center (“Brandon” or “hospital”) sought to expand its facilities. It selected Massey Metals, Inc., (“Massey”) to handle HVAC installation on the project. Massey brought in Workers Temporary Staffing (WTS) to provide workers for the project. The Union, Local 15, of the Sheet Metal Workers International Association (“Union”), had a primary dispute with Massey and WTS over the use of non-union labor, and alleged that their pay rates and benefits were below area standards. The Union sought to persuade Brandon to stop using Massey and WTS, and engaged in various protests to publicize the dispute near the hospital. One such protest involved the use of a 16-foot tall, and 12-foot wide inflatable rat, sitting on a flat bed trailer about 100 feet from the main entrance of the hospital. The rat was stationed there over a two month period. Leaflets calling WTS a “rat employer” were also distributed.
The National Labor Relations Act (“NLRA”) Section 8(b)(4)(ii)(B) prohibits conduct found to “threaten, coerce, or restrain” a secondary employer not directly involved in a primary labor dispute, if the object of that conduct is to cause the secondary to cease doing business with the primary employer. In determining whether union conduct at a secondary employer’s site violates Section 8(b)(4)(ii)(B), the Board looks at whether the activity constitutes intimidation or persuasion. Here, the Board noted that there were no allegations that the union threatened, coerced or restrained the secondary employer through means of violence, blocking ingress or egress, or other forms of disruption typically associated with picketing intimidation tactics. Indeed, the Board found that since the rat display was devoid of any form of confrontation, it did not constitute picketing at all. Instead, it was mere symbolic speech.
Of particular concern to secondary employers is the fact that the Board found “nothing in the location, size or features of the balloon that were likely to frighten those entering the hospital, disturb patients or their families, or otherwise interfere with the business of the hospital . . . .” I disagree with the Board on that point. Personally, it is not hard to imagine family members of patients being concerned about the presence of a 16 by 12 foot rat outside of the hospital where their loved one is being cared for, and subsequently transferring said family member to another hospital. Quiet and peaceful or not, the presence of that large rat puts work stoppage in the mind of the general public, and the last thing any family wants is for a hospital to stop functioning while their relative is under its care. The same can be said for a number of industries. That, to me, is clearly coercive and/or intimidating.
With this ruling, we can expect that unions will increase their use of these huge inflatable rats at the locations of secondary employers as a pressure tactic. These employers should contact experienced labor counsel at the first hint that the union will place one of these rats at their location, so that appropriate plans can be formulated. Reid Kelly, P.C. has over 12 years of experience handling all manner of labor-management disputes. Call us today to discuss your options.
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