The NLRB has ruled that a union did not violate the NLRA's prohibition against secondary boycotts by stationing a 16-foot rat balloon in front of a hospital in order to persuade the hospital to stop using non-union construction labor on a hospital addition. Predictably, Democrat Board Chair Wilma Liebman, and Members Craig Becker and Mark Pearce, found that the union did not violate Section 8(b)(4)(ii)(B) of the Act by displaying the rat or by stationing a union agent at a vehicle entrance with a leaflet in front of his chest that an ALJ said resembled a placard. The Board majority said the union's primary labor dispute was with two non-union subcontractors, not with the hospital. The rat balloon had an attached sign with the name of one of the subcontractors, and was mounted on a trailer located 145 feet, 170 feet, and 100 feet from various entrances to the hospital. Union members stood near the trailer and at the vehicle entrances, distributing leaflets proclaiming, "There's a rat at Brandon Regional Hospital." The leaflet described the subcontractor as a "rat employer" and claimed the hospital was undermining the wages, benefits, and other working conditions established by the local labor agreement. One union leafletter stood near the hospital's vehicle entrances for about two days and "held the leaflet out with two arms, directed at visitors entering and exiting the hospital parking lot."
The NLRB's general counsel under the Bush Administration had argued that the use of the rat display and use of the leaflet like a placard were similar to picketing and, therefore, violated the secondary boycott provisions of the Act because they were undertaken to pressure the hospital to stop doing business with the two subcontractors. The Board majority disagreed, ruling, as it did with regarding to "bannering" in Eliason & Knuth of Arizona, Inc., that neither the rat display nor the leaflet display constituted picketing and "entailed no element of confrontation, as they were stationary and located sufficient distances" from all hospital entrances, and "that visitors were not confronted by an actual or symbolic barrier as they arrived at, or departed from, the hospital."
Dissenting Member Brian Hayes agreed with the General Counsel that the union's use of the rat balloon had been "tantamount to picketing." He argued that such displays constitute a signal to third parties that there is, in essence, an invisible picket line that should not be crossed. Hayes said he would also find that holding out a sign to be seen by passing motorists "plainly was picketing" and "no less confrontational than wearing a placard, which the Board has long recognized to be equivalent of carrying a picket." According to Hayes, by moving from giant banners in Eliason to giant rats mounted on trailers in this case, "my colleagues have quite literally expanded the physical mass that unions may erect to confront and deter customers from entering a neutral employer's premises in order to coerce that employer to cease doing business with the primary employer target of a labor dispute. Clearly, these means of protest owe more to intimidation than persuasion."