Last September, in a decision just in time for Labor Day, this blog introduced readers to the NLRA’s restrictions on secondary boycotts. In that case, the NLRB issued a union-friendly ruling holding that the display of large, stationary banners was not picketing.
Last week, the NLRB continued its development of the law in this area with its decision in Sheet Metal Workers International Association, Local 15 (Brandon Regional Medical Center), 356 N.L.R.B. No. 162 (May 26, 2011). Once again, organized labor should be happy with the result.
The most recent case addresses the display of a large, inflatable rat. The balloon measured 16 feet tall and 12 feet wide and had attached to its abdomen a sign with the primary employer’s name on it. The union placed the balloon on public property within 100 feet of a hospital’s entrance to protest the hospital’s use of a construction company that the union claimed was not meeting area standards for wages and benefits. Several union members stood next to the rat and passed out leaflets. One leafletter stopped handing out his leaflets, however, and instead stood stationary near a vehicle entrance with his arms outstretched, displaying the leaflets. When asked by hospital security what the union members were doing, a union organizer responded that they were "picketing."
In a 3-1 decision, the NLRB held that the display of the balloon and the stationary display of the leaflet was actually not picketing, and was therefore lawful. The NLRB majority reasoned that the rat balloon and leaflet displays didn’t block ingress and egress to the hospital or rely upon violence to intimidate the hospital. The NLRB rejected the argument that the rat balloon was picketing because there was no element of "confrontation" — the balloon was stationary and located sufficiently far away from the building and vehicular entrances. Finally, the facts did not show that there was any non-picketing conduct that was nonetheless coercive, like shouting, mass gatherings, and the like.
Member Hayes again assumed the voice of the lone dissenter. He argued that the message from the display of a "gigantic" rat was "unmistakably confrontational and coercive." He also noted that the display was a signal to third parties that "there is, in essence, an invisible picket line that should not be crossed." Finally, he noted that the essence of picketing, up until the NLRB’s decision last September, was the posting of an individual at an entrance. Moreover, he reasoned, holding out a leaflet was the functional equivalent of wearing a placard, which is something the NLRB has historically considered to be picketing.
For the labor professional working with employers, the NLRB’s decision is yet more bad news. Like its September 2010 ruling, the NLRB has again expanded the universe of permissible forms of pressure that unions can bring to bear on neutral employers. Even the posting of an individual at a vehicle entrance displaying a leaflet is apparently permitted in at least some circumstances. With the expanding scope of lawful union tactics in this area, the need for planning surrounding those activities will likewise continue to increase.