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April 18, 2014

The Obama Board and the Giant Rat: NLRB Holds That Union Use of Inflatable Monster Rat Does Not Constitute Unlawful Activity Directed At A Secondary Employer

 

 The "Giant Rat" -- the monster inflatable notoriously associated with labor union activity -- has survived another legal challenge. Yesterday (May 26), in Sheet Metal Workers Local 15 (Galencare, Inc.), the National Labor Relations Board (NLRB) issued a 3-1 split decision holding that a union had not engaged in unlawful secondary activity under Section 8(b)(4)(ii)(B) of the National Labor Relations Act (NLRA) by stationing the Giant Rat outside the facility of a neutral employer to protest that employer’s hiring of a non-union contractor.

In this case, a hospital had hired a sheet metal contractor for a project on which the contractor had, in turn, engaged non-union workers. In relation to its primary dispute with the contractor over the use of non-union labor, the Sheet Metal Workers’ Union sought to persuade the hospital to stop using the contractor by organizing protests near the hospital to publicize its dispute with the contractor. Those protests included the placement of the Giant Rat -- 16 feet tall and 12 feet wide -- within 200 feet of the hospital’s vehicle entrances and within 100 feet of the hospital’s front door.

The question before the NLRB was whether, under Section 8(b)(4)(ii)(B) of the NLRA, the Union’s use of the Giant Rat constituted lawful persuasive activity, or unlawful intimidation, directed at a secondary employer -- the hospital (and its customers and employees) -- for the purpose of impacting the hospital’s relationship with the Union’s primary target, the non-union contractor. A majority of the NLRB -- its three Democrat members -- held that the Union had not violated the NLRA because the use of the stationary Giant Rat (i) constituted peaceful and constitutionally protectable expression, (ii) did not involve confrontational conduct that would qualify as unlawful picketing, and (iii) did not qualify as nonpicketing conduct that was otherwise unlawfully coercive.

With Galencare, the Obama Board has confirmed its intent to expand the union-friendly, narrow interpretation of the NLRA’s prohibition against coercive secondary activity which it announced last fall in Carpenters Local 1506 (Eliason & Knuth of Arizona, Inc.), 355 NLRB No. 159 (2010). Dissenting in both cases, Republican Member Brian Hayes decried the majority’s "re-definition" of Section 8(b)(4) that would allow a union to exploit the coercive and intimidating impact of the "rat collosi" in its secondary activities. Still, the Giant Rat is not free to terrorize without restraint even under Galencare, where the majority acknowledged that, in other cases, the size of the Giant Rat, combined with its location and threatening or frightening features, might render it unlawfully coercive.

©2014 Greenberg Traurig, LLP. All rights reserved.

About the Author

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Jonathan Israel advises clients on a wide variety of traditional labor and general employment matters, both in the United States and internationally. He practices in diverse industries, including professional, collegiate and Olympic sports, entertainment, media, financial services, hedge and private equity funds, transportation and retail.

 

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