According to the Chinese Zodiac, one of the traits of the Rat is wit; and it just may be that characteristic that recently saved the Rat from the National Labor Relations Board’s (“NLRB”) chopping block. You’ve seen it, the giant inflatable Rat that looms outside a work place pulled into some type of labor dispute. If you have not, just imagine a 60 foot Rat with a nasty smirk on its face bouncing up and down with the wind and the chants from angry union workers.
In a recent case remanded from the DC Circuit Court of Appeals to the NLRB (Sheet Metal Workers Local 15 (Brandon Region Medical Center), the NLRB determined that the Rat’s presence at a secondary employer’s premises to protest the use of non-union workers does not violate the law. Pursuant to the law (The National Labor Relations Act), conduct that “threatens, coerces or restrains” a secondary employer from doing business with a primary employer is illegal. In a 3 to 1 decision by the Democrat controlled Board, the NLBR determined that the presence of a giant Rat did not entail elements of confrontation “as they were stationary and located at sufficient distances from the vehicle and building entrances to the hospital that visitors were not confronted by an actual or symbolic barrier as they arrived at, or departed from, the hospital.” The majority saw it as a question of freedom of speech, not coercion.
In her dissenting opinion, Member Hayes stated that “my colleagues have quite literally expanded the physical mass that unions may erect to confront and deter customers from entering a neutral employer’s premises in order to coerce that employer to cease doing business with the primary employer target of a labor dispute. Clearly, these means of protest owe more to intimidation than persuasion.”
I’d be lying if I said that the sight of a giant inflatable Rat does not make me laugh every time I see it. But to rule that a mass such as that is not coercive or threatening – give me a break. Given this decision, owners and operators of business that are not even directly involved in union disputes will have to endure the Rat and be on the lookout for what is on the drafting table in the giant balloon industry.
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