Last September, we informed you of the National Labor Relations Board's (Board) decision in Carpenters & Joiners of America whereby union members lawfully held a 16-foot long banner near two medical centers and a restaurant to protest construction contractors that the union claimed paid substandard wages and benefits. On May 26, 2011, the Board relied on its "bannering" decision to determine that a union's use of a stationary 16-foot tall rat balloon in front of a hospital did not violate the National Labor Relations Act (Act). The Board's decision further defines (and expands) the scope of permissible conduct under the Act's secondary boycott provision.

In Sheet Metal Workers Local 15, the union, in an effort to persuade a hospital to stop using a non-union contractor, staged a mock funeral in front of the hospital, displayed placard-like leaflets at vehicle entrances and placed a rat balloon (which was approximately 16 feet tall) about 100 feet from the hospital's front door. After the mock funeral was determined to be lawful, the Board, relying on its earlier "bannering" decision, found no confrontational element with the union's other activities because the displays were stationary and located a sufficient distance from the hospital's vehicle and building entrances. As a result, the Board concluded that the rat balloon and leaflet display did not constitute picketing and was not unlawfully coercive. Rather, the Board characterized the union's use of the rat balloon as "symbolic speech" subject to constitutional protections under the First Amendment.

The Board's ruling, in conjunction with its "bannering" decision, will undoubtedly lead to an increase in the use of displays, such as balloons and banners, near a secondary employer's place of business. The only caveats appear to be that such displays must remain stationary and be located a sufficient distance from the employer's entrances. Moreover, such banners cannot have the effect of inducing individuals not to pick up, deliver or transport goods or not to perform services.