Mock Funerals and Rat Displays at Secondary Employers Permissible
The National Labor Relations Board (NLRB) once again sided with a union, finding the display of a giant inflatable rat and accompanying leafleting did not violate the National Labor Relations Act (NLRA). A stream of hope came when the Board ruled the union’s mock funeral unlawful, but the local federal court overturned that decision. Overall, this controversy expands a union’s ability to protest against businesses who do not hire unionized workers and disregards the right of a neutral employer to avoid being sucked into this fight.
In this case, the Brandon Regional Medical Center in Brandon, Florida hired a company to do HVAC work. That HVAC company hired another company to supply the labor. The union was upset that the labor supplier did not employ unionized workers. Subsequently, the union set up a 16 foot tall, 12 foot wide inflatable rat on the public sidewalk at the entrance to the hospital parking lot. In addition, several union members stood next to the rat and handed out flyers which said the labor supplier did not pay fair wages. One member held up a flyer so passing cars could read it.
The hospital claimed this picketing was in violation of Section 8(b)(4) of the NLRA, which prohibits secondary boycotts. As we explained in our previous article on this issue:
Frequently a union objects when an employer (secondary employer) hires a nonunion company (primary employer) that pays what the union allegedly considers substandard wages. The union calls for the public to boycott the secondary employer because it refuses to hire union workers. However, the real dispute is between the union and the primary employer, not the secondary employer. In the past, the NLRB has held that unions may not picket in front of a secondary employer with whom they do not have a dispute. Such picketing is coercive and unnecessarily disrupts the secondary employer’s business. The NLRB does, however, allow unions to hand out flyers outside of the secondary employer’s business, because it says this method is less coercive to customers. This is known as “handbilling.”
In that previous case, the NLRB found the union’s twenty foot long banner reading “SHAME ON [employer’s name]” was not considering picketing and was not unlawfully coercive. Similarly here, the NLRB found the rat was not considered picketing, because it was stationary and did not create a physical barrier to customers’ ingress and egress to the hospital. In addition, the one union member holding up the leaflet stood still, so was not considered a picketer.
The Board also looked at whether the union’s conduct was persuading customers not to patronize the hospital, which would be legal, or whether the union’s conduct was intimidating and therefore coercing customers not to patronize the hospital, which would be illegal. Here, the Board found that the rat and accompanying leafleters were not threatening or intimidating. The display was not frightening enough to deter people from coming to the hospital.
Another issue in this case decided separately had to do with the union staging a mock funeral. To further protest the hiring of nonunion workers, the union had several members dressed in grim reaper costumes march around outside the hospital holding a casket. The Board found this was coercive conduct and unlawful picketing. However, the United States District Court for the District of Columbia disagreed, finding this mock funeral acceptable under the NLRA.
The power of labor is on the upswing in the United States. Dissenters in this case observed that a rat is an ominous symbol of a labor dispute and many people, especially other vendors (e.g. unionized delivery drivers) refuse to cross this “unofficial” picket line. Despite this, the Board’s argument seems to say that if two groups have the same signs and the same amount of people, but one group walks in a circle, while the other stands still, the NLRB would find the first to be illegal and the other legal. This arbitrary delineation shows the Board’s pro labor stance. If any employer sees evidence of a union protest outside its business, it should immediately contact counsel to protect and possibly to exert its rights under the NLRA.
Brody and Associates regularly advises its clients on union-related matters and provides union-free training. If we can be of assistance in this area, please contact us at firstname.lastname@example.org or 203.965.0560.