NLRB okays rats - BIG rats!!!

In The Adventure of the Sussex Vampire, Sherlock Holmes tells Dr. Watson, 'Matilda Briggs was not the name of a young woman, Watson, . . . It was a ship which is associated with the giant rat of Sumatra, a story for which the world is not yet prepared.  Prepared or not, the world – or at least Iowa employers subject to the National Labor Relations Act – needs to hear the story of the May 26, 2011 3-to-1 split decision of the NLRB in Sheet Metal Workers Local 15 (Galencare, Inc.) 356 NLRB No. 162 involving a 'giant (inflated) rat.' The Dispute In 2003, Brandon Regional Medical Center hired sheet metal contractor Massey Metals, Inc. to perform the HVAC installation for a new addition.  Massey obtained workers from Workers Temporary Staffing ('WTS'), a labor supply company.  The Sheet Metal Workers' dispute was with Massey and WTS over their use of nonunion labor and their (alleged) payment of wages and benefits 'below area standards.'  The Union sought to persuade Brandon to cease doing business with Massey and WTS by staging protests near the hospital to publicize the dispute.  The Rat In January and February 2003, the Union mounted a 16-foot-tall and 12-foot-wide inflated rat balloon on a flatbed trailer, and parked it on public property in front of the hospital – a reported 170 feet from one vehicle entrance, 145 feet from another entrance, and 100 feet from the hospital's front door.  Individuals stood next to the trailer and at various vehicle entrances distributing leaflets which said, in part, '[t]here's a ‘rat' at Brandon Regional Hospital.' The Law The National Labor Relations Act (NLRA) declares that it is unlawful for a union or its agents to threaten, coerce, or restrain persons engaged in commerce with the intent of forcing or requiring them to cease doing business with any other person.  This ban is intended to prevent unlawful intimidation directed at a secondary employer.  Thus the law excludes from this ban primary picketing. The question before the NLRB in Galencare was whether the Union's use of the large inflated rat constituted lawful picketing activity, or unlawful intimidation directed at a secondary employer – the hospital (and its customers and employees) – for the purpose of impacting the hospital's relationship with the Union's primary target, the non-union contractor. The three Democrat members of the NLRB held that the Union had not violated the NLRA because the use of the stationary inflated giant rat:

1. constituted peaceful and constitutionally protectable expression,

2. did not involve confrontational conduct that would qualify as unlawful picketing, and

3. did not qualify as nonpicketing conduct that was otherwise unlawfully coercive.

That said, the majority acknowledged that there may be a case where the size of a 'symbolic display' combined with its location and threatening or frightening features could render it coercive.  Apparently unswayed by the dissenting member, which characterized the 16-foot-tall balloon as a 'rat colossi,' the majority concluded that 'was not the case here.'  The Galencare decision appears to be a logical extension of the 'Obama Board's' narrow interpretation of the prohibition against coercive secondary activity first announced in Carpenters Local 1506 (Eliason & Knuth of Arizona, Inc.), 355 NLRB No. 159 (2010).  In that case, the same three-person majority concluded that a 20-foot-long, 4-foot-high banner declaring 'shame' on a neutral employer at a construction site, 'lacked the element of confrontation . . . central to our concept of picketing.'  Because the NLRB found the giant banners were not picketing, it concluded the conduct was permitted under the Act.  (As one observer noted, the conclusion appeared to be that two individuals walking in a five-foot circle with 8-1/2? x 11? signs on sticks is more coercive than a 20' x 4' banner with enormous lettering declaring 'shame' on a neutral employer.  Readers can draw their own conclusions.)   On February 3, 2011, in Southwest Reg'l Council of Carpenters (New Star Gen. Contractors, Inc.), 356 NLRB No. 88 (2011), the same Board majority held that these giant banners could be placed anywhere on private common-access construction sites without unlawfully 'coercing' neutral employers or employees.  Unlike the rules that apply to picketing, the Board majority explicitly found that the banners did not have to be maintained only at the 'reserve gate' on a construction site where there are multiple employers, union and non-union.  In addition to reiterating its prior holding that giant banners did not constitute picketing, the NLRB held that the banners could not be considered an unlawful 'signal' to employees to withhold service at a private, common-access construction site. While the 'ratmobiles,' inflatable rats and large 'shame' banners have historically been something seen primarily in the construction industry, other industries and other businesses may become targets of similar protests in the future.  The Brandon Regional Medical Center most likely did not appreciate a 'big rat' – a 'giant rat,' a 'rat colossi' – in front of its main entrance.  Could your business be next?

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.