Unions and Rats

Sometime in the 1990s, unions began using huge inflatable rats to call attention to labor disputes.  Unions love the rat.  Usually about 15 feet high, unions place the rat across the street, or near employers with which they have a dispute.  This week, the NLRB ruled that using a rat is not unlawfully coercive picketing.

In 2006 the Sheet Metal Workers Union had a dispute with a non-union contractor who was doing work in hospital.  The union brought the rat out, placed it across the street from the hospital, and handed out leaflets explaining that there was a "rat employer" in the hospital paying less than area standards.  The hospital filed a charge alleging unlawful secondary boycott activity.

It is against the law for a union to coerce employees of an employer with whom it does not have a direct dispute into refusing to work for the neutral employer.  So, for example, if a union has a dispute with a contractor working at a hospital, it cannot picket in front of the hospital in an effort to prevent the hospital employees from working.  Such a dispute is called a "secondary" dispute because the union is trying to put pressure on the second employer to get its way with the first employer.  Personally, I see nothing wrong with this tactic, but the Congress in 1947 disagreed and made it unlawful in the Taft-Hartley Act.  There is nothing unlawful, however, about persuading members of the public not to patronize either the first employer or the second employer.

In the original Administrative Law Judge decision, the judge found that the union's conduct was against the law because it was coercive.  However, after reviewing the case on remand from the DC Circuit Court of Appeals, the NLRB found that the union had engaged in lawful conduct. 

The Board held that there was no picketing or other coercive conduct, and that the rat was far enough from the hospital's entrance that it would not deter people from entering.  In response to the dissent's claim that the rat was "signaling" to people that they should not patronize the hospital, the majority stated that was exactly the point -- and that unions are entitled to inform the general public about their labor disputes.  Interestingly, the Board quoted  at length Snyder v. Phelps, the recent Supreme Court decision that said the First Amendment protects the right of picketers at military funerals to say that God was punishing the United States for its tolerance of homosexuality.

The rat may be a crude way of getting one's message across, but it has proved effective.  Most employers would rather not see a giant rat across the street protesting a labor dispute.  With the recent NLRB decision, however, we can expect more rats in the streets.