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Inflatable rat gets NLRB’s blessing

A labor union had a constitutional right to use a 16-foot inflatable rat to call attention to the use of non-union contractors by a neutral third party, the National Labor Relations Board ruled Thursday.

The 3-1 majority said the use of a huge, puffy rodent balloon outside a hospital construction project did not amount to threatening or coercive conduct by the Sheet Metal Workers International Association.

Instead, the “rat balloon itself was symbolic speech,” Chairman Wilma B. Liebman and members Craig Becker and Mark Pearce concluded. “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.”

The sole dissenter, Brian Hayes, admitted that the rat “might seem more comical than coercive” when considered from a figurative or literal distance.

“Viewed from nearby,” he wrote, “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.”

Persuasion vs. intimidation

Under the National Labor Relations Act, labor unions can seek to persuade neutral third parties and secondary employers — those caught in the crossfire of a dispute between the union and another entity —  to stop doing business with that entity. However, the efforts must stop short of coercion or intimidation.

Forming a picket line on a secondary employer’s premises is generally considered confrontational and coercive, while stationary leafleting or “handbilling” under a banner has been considered persuasive.

The question for the board in this case was where the rat fell on that continuum.

The dispute arose during construction of an addition to the Brandon Regional Medical Center in Brandon, Fla. Massey Metals Inc. got the contract to install the HVAC system. Massey obtained workers through another company, Workers Temporary Staffing or WTS.

The union had no dispute with the hospital, but hoped to convince it to stop doing business with WTS and Massey. It  showed up onsite in January and February 2003 with the inflatable rat and a stack of leaflets, identifying WTS as a “rat employer” that was undermining wages, benefits and working conditions.

A union member would stand at the entrance to the hospital parking lot with both arms outstretched, handing the leaflets to the incoming and outgoing traffic.

The rat demonstration stopped in February 2003. In March 2004, the union returned and staged a mock funeral on public property in front of the hospital.

The hospital complained to the NLRB, which found the funeral was coercive conduct but made no decision on the rat or the leaflets.

However, the D.C. Circuit Court of Appeals reversed in 2007, finding the funeral was protected speech that could not ‘realistically be deemed coercive’ even to ‘someone visiting a dying relative.”

The appeals court remanded the case to the NLRB to consider the remaining issues, including the use of the inflatable rat.

If the display of a costumed Grim Reaper and a coffin at a hospital was not coercive, the board noted on Thursday, the appeals court “would certainly not sustain a finding that the display of a rat balloon in similar circumstances coerced anyone.”

And, while Hayes’ dissent deemed the 16-foot rodent a “rat colossi,” the majority didn’t think it was all that bad.

“It may be that the size of a symbolic display combined with its location and threatening or frightening features could render it coercive within the meaning of [the law],” they wrote, “but such was not the case here.”