After Remand by US appeals Court, NLRB Rules that Display of Inflatable Rat Balloon at Secondary Employer is Permitted under Labor Laws
The National Labor Relations Board has ruled that a union practice of displaying a large inflatable rat balloon at a secondary employer’s premises to protest the labor practices of its non-union contractor is not coercive, and so does not violate U.S. labor law.
The case, Sheet Metal Workers Local 15 (Brandon Regional Medical Center), was originally decided by the Board in January 2006. In that decision, the Board found that a mock funeral staged by the union in front of an acute care hospital was unlawfully coercive. Given that decision, the Board found it unnecessary to rule on the display of the inflatable rat balloon.
The union, Sheet Metal Workers International Association, Local 15, which had been protesting the hospital’s use of non-union contractors, appealed the decision to the U.S. Court of Appeals for the District of Columbia Circuit. In June 2007, the court reversed the Board’s decision, finding that the use of a faux coffin and a costumed Grim Reaper outside the hospital was not “coercive.” The case was remanded to the Board for review of other issues raised in the case, including the legality of the balloon display.
Today’s 3-to-1 Board decision follows the reasoning laid out by the Board in Carpenters Local 15006 (Eliason & Knuth of Arizona, Inc.), 355 NLRB No. 159 (2010), which found the display of large stationary banners at secondary employer locations was not unlawful.
The National Labor Relations Act prohibits conduct found to “threaten, coerce, or restrain” a secondary employer not directly involved in a primary labor dispute, if the object of that conduct is to cause the secondary to cease doing business with the primary employer. Under existing precedent, picketing that seeks a consumer boycott of a secondary is usually coercive and therefore unlawful, whereas stationary handbilling with that same object is not, and is therefore protected speech. The question before the Board was where the use of a 16-foot-tall inflatable rat balloon falls on that continuum.
The Board majority – Chairman Wilma B. Liebman and Members Craig Becker and Mark Pearce – found that the balloon display did not involve any confrontational conduct, unlike picketing. Nor was the display coercive in other ways, the majority found. It observed that the union agents involved in the display did not move, shout, impede access, or otherwise interfere with the hospital’s operations. Rather, the “rat balloon itself was symbolic speech. It certainly drew attention to the Union’s grievance and cast aspersions on [the contractor], but we perceive 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.”
Dissenting, Member Brian Hayes found that the display was coercive, and therefore unlawful. “Considered in the abstract, or viewed from afar, the display of a gigantic inflated rat might seem more comical than coercive,” Member Hayes wrote. “Viewed from nearby, the picture is altogether different and anything but amusing. For pedestrians or occupants of cars passing in the shadow of a rat balloon, which proclaims the presence of a “rat employer” and is surrounded by union agents, the message is unmistakably confrontational and coercive.”