Inflatable Rat Wins a Battle, but the War Is Far from Over

The placement of a large, inflatable rat balloon at an employer’s facility, a sight familiar to many urban dwellers, was upheld in a recent 3-1 decision by the National Labor Relations Board, which found that a union that had stationed the rat near a hospital in Florida to protest work being performed by a non-union construction contractor at the facility did not violate the federal law against secondary boycotts in labor disputes.  Sheet Metal Workers International Association, Local 15 (Galencare, Inc. d/b/a Brandon Regional Medical Center), 356 N.L.R.B. No. 162 (2011).  (PDF)  But the war against this pesky vermin is far from over.  The decision—which could still be appealed to the U.S. Court of Appeals—is fact-specific and leaves open alternative avenues to challenge the rat.

There are several types of secondary boycotts that are prohibited under Section 8(b)(4) of the National Labor Relations Act, varying as to both the means and ends of the union’s conduct.  The type of boycott challenged in this case involved coercing or threatening any neutral or secondary person—employees, employers, customers or members of the general public—for the purpose of forcing or pressuring them to cease doing business with the primary employer, that is the employer with whom a union has a dispute. Applying a standard articulated in a decision (PDF) last year involving large union banners at the site of a labor dispute, the Board concluded that stationing the rat placed near the entrance to the hospital was not “confrontational” and therefore did not coerce or threaten anyone.  Because the Board concluded the rat was neither threatening nor coercive, it concluded that the rat did not violate Section 8(b)(4).

The majority opinion, however, overlooks the extent to which the very purpose of the rat is to be confrontational.  The whole point of placing a 16-foot tall, 12-foot wide rat in front of an employer’s workplace point is to ratchet up the pressure in a labor dispute with a symbol that is by its very nature large, confrontational and threatening.  Otherwise, the union would stick to handbills and banners.  In addition, evidence has been introduced in other cases from witnesses who have testified that the common understanding of the rat is that it is an equally confrontational substitute for traditional group picketing, which is prohibited against a secondary such as the hospital in this case, a way to accomplish the same objectives with fewer bodies.  However, as the dissenting Board member recognized, the rat creates an “invisible picket line.”  Indeed, the Board's General Counsel, during the Bush Administration, pointed to an episode of The Sopranos as evidence that, in our culture, a rat at a worksite meant that there was a labor dispute.

Regardless of the outcome of this particular decision—which, even if not appealed, could certainly be revisited in the future with a different outcome under a different presidential administration—there remain several alternative ways to challenge the rat.  The majority decision did not approve the use of the rat in all circumstances.  Indeed, the decision several times stated that it found no coercion based on the size, location or features of the rat in this particular case, clarifying that “[i]t may be that the size of a symbolic display combined with its location and threatening or frightening features could render it coercive within the meaning of” the Act.

Further, there are other secondary boycott provisions that have been successfully employed in the past to MAKE the rat evidence of an unlawful object, that were not present in the recent case.  For example, picketing that involves inducing or encouraging neutral employees not employed by the primary employer to stop working as a means of pressuring their neutral employer to cease doing business with the primary employer is unlawful. This is called “signal picketing.”  This type of challenge is particularly apt when the rat is placed at a common worksite where more than one group of union employees are working or must enter the facility.  There are countless examples of neutral union employees refusing to go to work or make deliveries when the rat appears, because for many unions and their members, the rat means just one thing:  do not cross this picket line.

Prior to the recent decision, employers had experienced some success in knocking out the rat. (Labor Law and the Inflatable Rat). (PDF)  Despite this recent setback, employers should not assume that they are stuck with the rodent if it appears in front of their place of business, but should instead remain vigilant, recording the facts and circumstances of the situation and consulting with counsel when the rat rears its ugly head.