Increase in Rat Population Predicted

by Proskauer - Class & Collective Actions
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These days, a union protest or picket that doesn't include a 16-foot inflatable rat, well, just isn't really a protest.  Expect to see more of them after the Board's decision yesterday in Brandon Regional Medical Center (pdf).  (For an enormous compilation of rat photos, see this link).  The Board held that the ubiquitous rat may be used not only to protest at a site of the employer with whom the union has a labor dispute, but also at those of "secondary" employers who do business with the primary employer.

In this case, the union had a dispute with Massey Metals and its temp firm WTS, which was providing nonunion employees to do sheet metal work at the Brandon Regional Medical Center, where Massey was constructing an addition.  The union inflated the rat and positioned it 100 feet from the front door of the hospital, and union members handed out leaflets.  One union member stood near the hospital's vehicle entrance and held out the leaflet with both hands to show visitors driving in and out of the hospital parking lot.

Section 8(b)(4)(ii)(B) of the Act prohibits unions from "threatening, coercing, or restraining" employers who do business with a primary employer when the object of the activity is either to coerce the secondary employer to stop doing business with the primary, or to force the primary to recognize the union. 

Relying entirely on last year's decision in Carpenters Local 1506 (Eliason & Knuth of Arizona, Inc.), which had held that the use of stationary banners at a secondary employer did not violate the Act, the Board held that the rat and outstretched leaflet were permissible because they were merely "persuasive" and not "intimidating." 

In dissent, Member Hayes found the use of the rat ("a well-known symbol of labor unrest") to be inherently coercive, and its use tantamount to picketing.  The union member holding out the leaflet, Member Hayes reasoned, was not handbilling; he was effectively wearing a placard, long held to be the equivalent of a picket sign.

The Board's decision is notable not only for its conclusion, which will undoubtedly spark greater activity and greater burdens for employers who have no labor dispute, but also for its heavy, almost single-minded reliance on its own 2010 decision and apparent lack of interest in finding support for its conclusions in older cases.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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