If you have not already seen the infamous “inflatable rat” in a neighborhood near you, it is likely that you are going to see one soon. This comes as a result of a recent decision by the National Labor Relations Board (NLRB) finding that the use of inflatable rat-shaped balloons – in and of itself – is not a form of picketing and is not “coercive” conduct prohibited by the National Labor Relations Act.
Labor unions have used these large, inflatable rats to draw public attention when they have a dispute at a construction job site – as well as at other locations – to publicize a labor protest and the use of non-union contractors. As a matter of the right to free speech under the First Amendment, many courts have found that unions cannot be restricted from using this form of expression.
Nonetheless – when, where and how unions were allowed to deploy these inflatable rats was subject of certain rules and restrictions under labor law. This has all changed now, and it appears that the old rules are no longer going to apply. This is the result of a NLRB decision issued last month in Sheet Metal Workers Local # 15 (Brandon Regional Hospital), 356 NLRB No. 162 (May 26, 2011).
In Brandon Regional Hospital, the hospital was undergoing a renovation, and the union wanted to protest the hospital’s use of a non-union contractor on the project by picketing at the hospital and generating negative publicity. Since the true target of the picketing is the non-union contractor, the hospital is considered a “secondary employer.” This used to mean that the union’s picketing activities were subject to certain restrictions. For example, where a proper “reserve gate” system has been put in place, a union could only lawfully picket at the gates that the non-union contractor used to access the project site and only when that non-union contractor was performing work at the site.
All that has changed as a result of Brandon Regional Hospital. The NLRB decided that the use of inflatable rats was not a form of picketing and was protected free speech. This is significant because the NLRB’s decision means the previous restrictions do not apply. The inflatable rats can be placed at any location near a project and for any length of time.
Because this decision may still be the subject of further appeal and review by federal courts, this may not be the final chapter in the story. Our Labor & Employment Group will continue to track these, and other important developments, in labor law to keep you in the know.