The National Labor Relations Board, in a 3 to 1 decision last week, ruled that a union’s use of a 16-foot high and 12-foot wide inflatable rat balloon on public property outside of a hospital’s main vehicle entrance was lawful and not prohibited secondary boycott activity.
This case began in 2003 when the Sheet Metal Workers Union had a dispute with a non-union contractor that was working at the hospital’s construction site for a new addition. The union, in an effort to pressure the hospital to stop using the non-union contractor, brought the huge rat balloon on a flat bed truck and stationed it less than 200 feet from the hospital’s front entrance. The rat had a sign attached to it that said, “WTS” (the name of the non-union contractor), and union members distributed leaflets nearby that said, “There’s a rat at Brandon Regional Hospital.” The union also staged a mock funeral outside of the hospital.
Obviously, the hospital didn’t appreciate the fact that there was a huge rat in front of its facility or the union’s mock funeral. After all, the union didn’t actually have a dispute with the hospital. The hospital was merely a neutral player in the drama. So, believing that what the union was doing was wrong and disruptive, the hospital filed a charge against the union for engaging in an unlawful secondary boycott.
Secondary Boycott of Neutral Employers
The National Labor Relations Act makes a union’s secondary boycott activity unlawful if the union threatens, coerces or restrains a neutral employer (in this case, the hospital) with the goal of inducing the neutral employer (or its employees) to stop doing business with another employer. In ruling on the hospital’s original charge, the NLRB determined that the mock funeral was unlawful secondary boycott activity. Because of that finding, the NLRB didn’t consider the rat balloon issue. The union appealed, and the federal court of appeals ruled that the mock funeral was not a violation but sent the rat issue back to the NLRB to determine if the union’s use of the rat was unlawful. Five years later, the NLRB finally reached its decision and held that the union’s use of the huge rat balloon was okay.
The Union’s Right of “Peaceful Persuasion”
In support of that outcome, the NLRB referred to its recent decision (Eliason & Knuth of Arizona) that held that a union’s huge stationary banner that said “SHAME” (also in front of a hospital) was not threatening nor was the banner “coercive picketing” since the banner was stationary and did not block ingress or egress to the facility. In order for activity to constitute unlawful secondary boycott activity, the NLRB says that it must involve: 1) a threat of violence; 2) a blocking of ingress or egress; or 3) a disruption of general business operations. The NLRB reasons that, in passing the prohibition against secondary boycott activity, Congress was concerned with prohibiting “coercive picketing” and not the peaceful persuasion of customers by means other than picketing. The rat balloon was non-confrontational and was, therefore, not unlawful in the NLRB’s view. In its decision, the NLRB also made a point about the union’s right of free speech. Thus, if the NLRB was to limit the union’s right to display the rat balloon in the way that it did, that would be contrary to the U.S. Supreme Court’s recent determination in Snyder v. Phelps that public protests at private funerals of military personnel are protected by the First Amendment. So, the bottom line is that if you find yourself in the middle of a labor dispute that is not yours, the unions have a right to peacefully advertise their message, regardless of how tasteless or outrageous those tactics may be.
Reference: Sheet Metal Workers, Local 15 and Brandon Regional Medical Center, 356 NLRB No. 162 (May 26, 2011).
The Lesson for Employers
This is one more example of the NLRB’s recent aggressive approach to the expansion of employee and, in this case, union rights. It is not unusual for unions to object to non-union contractors working at a construction site or to target neutral vendors to employers that the union wishes to organize in the hope of achieving their goals. With this decision and others, unions will likely begin to try additional “non-coercive” secondary activity that can put enormous pressure on the “neutral” employer to do something about the union’s targeted employer. Determining what is coercive can be a challenge for any employer. The NLRB provides a few examples of what may be unlawful:
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Throwing trash bags into the lobby of the neutral employer;
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Extremely loud bullhorns;
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Mass gatherings;
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Shouting derogatory names;
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Impeding access; or
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“Posting” union members very near entrances to create a perception of intimidation.
But very large rats and very large banners will now generally be okay.
Should you have questions, please contact your regular Hall Render attorney or a member of our Employment and Labor Section.
