Employers have long disliked labor unions’ use of inflatable rats, large balloon cats, mock funerals and other types of dramatic protests mounted when a labor union wants to exert pressure on a company to cease doing business with the employer with whom the union has a dispute.  The National Labor Relations Act (NLRA) expressly prohibits picketing a neutral employer in an effort to persuade that neutral employer to cease doing business with the employer with whom the union has its actual dispute (“primary employer”).  For example, there are numerous situations where a union has stationed an inflatable rat in front of an employer, such as, for example, a hospital, implying that the hospital is unsafe, when the real purpose is to persuade the hospital to cease doing business with the primary employer.

These kinds of activities, which do not include picketing, have been construed by the National Labor Relations Board (NLRB) to be constitutionally protected freedom of speech.  The NLRA expressly prohibits picketing which is for the purpose of pressuring a neutral employer to stop doing business with an employer.  The NLRB has found union activity at a neutral’s premises to be unlawful which is not picketing but may send a “signal” to a neutral’s employees that they should withhold their services.  The NLRB appears to be shifting its position on these kinds of cases.

Shift in NLRB’s Position?

In December 2018, the NLRB’s Office of the General Counsel issued an Advice Memorandum authorizing the issuance of a complaint against the IBEW Local 134 in Chicago, Illinois, and requesting that the NLRB reconsider its decisions in three previous cases.  In those cases the NLRB held that the following union activity was lawful because it did not involve picketing and did not involve coercive behavior:

  • in Brandon Medical Center, a union’s setting up of a large inflatable rat on a truck approximately 100 feet from a neutral hospital’s front door;
  • in Eliason & Knuth, a union’s posting of agents holding large stationary banners proclaiming “labor dispute” and “shame on [the employer]” in front of neutral businesses; and
  • in New Star, a union erected banners at 19 different neutral employers’ premises claiming labor disputes with the neutrals and proclaiming “shame” on them for doing business with the employer with which the union actually had a dispute.

In the December Advice Memorandum, the NLRB’s General Counsel stated that a complaint should be issued against IBEW Local 134 because of its erection of a stationary banner that misleadingly proclaimed a labor dispute with a neutral employer, Summit Construction, as well as its use of a large inflatable cat clutching a construction worker by the neck.  The General Counsel wrote that the union’s placement of a large frightening cat and misleading banner at a construction site was intended as a signal to neutral employees not to enter or work at the job site.  For three out of the four days the union displayed the banner and the inflatable cat, the union knew that the employer with which it had the dispute was not even present at the construction site.

NLRB Unsuccessful in Obtaining Injunction

On July 1, the NLRB attempted to implement the General Counsel’s new interpretation by seeking a ruling from a Brooklyn District Court judge to enjoin Laborers Union Local 79 from using an inflatable cockroach and a large inflatable rat known as “Scabby the Rat” in a protest directed at shaming stores from using a builder with which the Laborers Union Local 79 has a dispute.  The judge denied the injunction.  However, it appears that the NLRB’s General Counsel is hoping that the Republican majority NLRB will be more sympathetic to his position in other cases which eventually will be in front of the NLRB.

An Issue to Keep an Eye On

Former NLRB Chairman Wilma Liebman predicted that there is a “95%, if not better, chance that this Board will reverse the precedent as the General Counsel asks.”  Construction contractors in particular should be aware that a union’s inflammatory use of inflatable rats, cartoon displays, “Shame” banners, and other dramatic protests may in the future be found to be illegal.  The death of Scabby the Rat may be coming.