Hunton Employment & Labor Perspectives

The National Labor Relations Board (“NLRB”) handed down an opinion last month, in Sheet Metal Workers International Association, Local 15 (Brandon Regional Medical Center), 361 NLRB No. 162 (2011), that constitutes a victory for union members and giant inflatable rats everywhere.  Inflatable rats have been used by unions to protest employers’ use of non-union (or “rat”) workers since as early as 1991.  Giant inflatable rats have been the subject of lawsuits in the past, and a previous case has made it all the way to the Supreme Court of New Jersey.  See State v. DeAngelo, 197 N.J. 478 (2009).  The inflatable rat in question was 16 feet tall and 12 feet wide.  It was located 100 feet from the entrance of a hospital, run by a neutral company, whose independent contractor subcontracted work to a company which utilized non-union workers. 

In a 3-to-1 decision, the NLRB held that the use of giant inflatable rats is not, in and of itself, a “coercive,” “intimidating,” or picketing act, and thus is not  proscribed by Section 8(b)(4)(ii)(B) of the Unfair Labor Practices Act (28 U.S.C. 158).  The NLRB held that they “perceive[d] 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 in a manner […] proscribed by Section 8(b)(4)(ii)(B).”  This makes use of giant inflatable rats a legal form of protest even when placed near the customers or suppliers of a labor dispute’s target company.  This case comes on the heels of another NLRB decision in Carpenters Local 1506 (Eliason & Knuth of Arizona, Inc.), 355 NLRB No. 159 (2010) that expanded union rights in posting large banners near neutral companies’ worksites.  The NLRB justified that decision with reasoning similar to the one in this case.  

The sole Republican board member, Brian Hayes, stated in his dissent that his colleagues had, “quite literally expanded the physical mass that unions may erect to confront and deter customers from entering a neutral employer’s premises[.]” Mr. Hayes argues that allowing unions to use things such as giant inflatable rats (which he termed, “rat colossi”) should be illegal.  In hopes of coercing a neutral employer to cease doing business with the labor dispute’s target employer, rat colossi confront and deter customers from doing business with the neutral employers.  In the opinion, the majority states that Hayes’ contention that the rat is coercive is unsupported by the arguments made during the proceedings, and that Hayes’ argument is insensitive to First Amendment concerns.