The National Labor Relations Board has declared lawful the union practice of displaying large inflatable rat balloons at a secondary employer’s premises to protest the labor practices of a separate non-union contractor. Upon remand from the U.S. District Court for the District of Columbia, in Sheet Metal Workers Local 15 (Brandon Regional Medical Center), 356 NLRB No. 162 (May 27, 2011), a 3-1 Board majority extended the rationale set forth in Carpenters Local 15006 (Eliason & Knuth of Arizona, Inc.), 355 NLRB No. 159 (2010), which found a union’s display of large stationary banners at a secondary employer’s premises — a hospital — was not unlawful.
Section 8(b)(4) of the National Labor Relations Act 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. "Picketing" that seeks a consumer boycott of a secondary employer is generally considered unlawfully coercive. Simple handbilling with the same object is, on the other hand, generally protected speech.
The Board majority here found that the balloon display — a giant, rabid rat — did not involve "confrontational conduct," and was thus unlike picketing. The majority noted that the union agents did not move, shout, impede access, or otherwise interfere with the hospital’s operations. The Board concluded that much as the mock funeral procession with coffin and costumed Grim Reaper that the union staged outside the hospital:
[the] rat balloon itself was symbolic speech. It certainly drew attention to the Union’s grievance and cast aspersions on [the contractor], but we perceive 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.
By the combination of holdings in Eliason & Knuth, its progeny, and now this case, the Board has significantly eviscerated the secondary boycott provisions of the Act. Now, so long as the union does not place the signs or huge protest objects on sticks or include "moving" supporters in connection with the display, the Board appears content to allow a union to apply pressure upon neutral employers at their places of business.
Member Brian Hayes dissented:
Considered in the abstract, or viewed from afar, the display of a gigantic inflated rat might seem more comical than coercive. Viewed from nearby, the picture is altogether different and anything but amusing. For pedestrians or occupants of cars passing in the shadow of a rat balloon, which proclaims the presence of a “rat employer” and is surrounded by union agents, the message is unmistakably confrontational and coercive.
Ironically, the inflatable rat used by unions in these protests is manufactured in Plainfield, Illinois — in a non-union shop.