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Friday, May 27, 2011

Union’s Giant inflatable Rat not coercive

By: Tommy Eden, Attorney

The National Labor Relations Board (NLRB) ruled on May 26, 2011 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 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 found that the balloon display did not involve any confrontational conduct, unlike picketing, nor was the display coercive in other ways.

Rather, the Board found that 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.” The same union earlier conducted a mock funeral in front of an acute care hospital which the NLRB found was unlawfully coercive.

Common Sense Counsel: when Unions are involved you can usually smell a rat. As stated by the lone dissenting Board member:” 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.” Conducting TIPS Training for your supervisors now is the best way to take preventive action. With regards to unions, under the NLRA an employer can not Threaten, Interrogate, Promise or Spy. See my article Foreign Automotive Manufacturers in UAW Crosshairs and 7 steps which can help your company avoid being a target for the Big Rat Campaign.

Tommy Eden is a resident of Auburn, an attorney with the local office of Capell & Howard, P.C. and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-501-1540.