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NLRB Holds Union's Display of Inflatable Rat at Secondary Employer to be Lawful

June 23, 2011

On May 26, 2011, the National Labor Relations Board ruled that a union did not violate the National Labor Relations Act ("Act") when it displayed a 16-foot inflatable rat on public property near a hospital worksite where a non-union contractor was installing an HVAC system. The union objected to the contractor's use of nonunion labor and its alleged payment of below "area standard" wages and benefits. The union's purpose for placing the inflatable rat at the hospital worksite was to pressure the hospital to stop doing business with the non-union contractor.

Section 8(b)(4)(ii)(B) of the Act prohibits conduct found to "threaten, coerce, or restrain" a "secondary employer" not directly involved in a primary labor dispute with the union if the purpose of that conduct is to cause the secondary employer to cease doing business with the primary employer with whom the union does have a dispute. Since the purpose of the inflatable rat was undoubtedly to pressure the hospital to cease doing business with the non-union contractor, the question for the NLRB was whether displaying the rat amounted to unlawfully threatening, coercing, or restraining the hospital.

Historically, unions have pressured secondary employers by picketing and/or handbilling. Picketing to encourage a boycott of a secondary employer is typically unlawful because picketing, which usually involves marching, chanting, shouting, and confrontation, is deemed coercive to the secondary employer and a violation of Section 8(b)(4)(ii)(B). The NLRB now deems most handbilling, on the other hand, to be lawful. Handbilling typically involves union members handing leaflets to passersby encouraging them to boycott the secondary employer, which the NLRB believes is non-coercive constitutionally protected speech.

In recent years, unions have begun using alternative tactics of pressuring secondary employers, including placing large banners announcing "shame on" the secondary employer. In 2010, the NLRB found such conduct to be lawful on the basis that the union members holding the banner on public property were not marching, holding pickets, shouting, or otherwise interfering with the secondary employer's operations.

In Brandon Regional Medical Center, the NLRB relied on its "bannering" line of cases from 2010 and held that the union's 16-foot inflatable rat was not coercive to the hospital. The NLRB found the display to be non-coercive because the union agents involved did not move, shout, impede access, or otherwise interfere with the hospital's operations. While the rat "certainly drew attention to the union's grievance," the NLRB saw "nothing in the location, size or features of the balloon that were likely to frighten those entering the hospital, disturb patients and their families, or otherwise interfere with the business of the hospital."

Dissenting member Brian Hayes found the display to be coercive and, therefore, unlawful. "For pedestrians or occupants with cars passing in the shadow of the rat balloon, which proclaims the presence of a 'rat employer' and is surrounded by union agents, the message is unmistakably confrontational and coercive."

The Brandon Regional Medical Center decision gives greater protection to unions seeking to pressure secondary employers into refusing to work with non-union contractors. It is important for employers to understand the union's ability to target secondary employers in this regard and to respond appropriately without violating the Act.

If you have any questions about the Brandon Regional Medical Center case, please feel free to contact any member of Varnum's Labor & Employment Relations Group.

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