In a series of recent decisions, the National Labor Relations Board (“NLRB” or the “Board”) has considered the legality of certain union activities directed at a “secondary employer” – an employer that does business with the employer with which the union has a dispute (the “primary employer”). The National Labor Relations Act prohibits such “secondary activity” when it is threatening, coercive, or restraining and is aimed at forcing a person or company to stop doing business with another person or company. Since September 2010, the Board has issued a series of decisions upholding union displays of large banners outside a secondary employer’s location. As forecasted by our September 7, 2010 Legal Alert, the NLRB has recently extended its reasoning in these bannering cases to approve a union’s display of a giant inflatable rat near a secondary employer’s entrance.

The NLRB’s Decision in Brandon Regional Medical Center

In Sheet Metal Workers Local 15 (Brandon Regional Medical Center), the Sheet Metal Workers had disputes with a sheet metal contractor and the temporary staffing agency the contractor used to staff workers for certain of its projects, including its HVAC installation at a hospital, Brandon Regional Medical Center. In early 2003, union members engaged in a number of activities directed toward the hospital, including displaying a 16-foot-tall, 12-foot-wide rat balloon flanked by union members on public property about 100 feet from the hospital’s main entrance and distributing handbills, which one union member held at chest level as cars drove by, that identified the temporary staffing agency as a “rat employer” and depicted a cartoon rat near the bed of a sick patient.

The NLRB held that neither the rat balloon nor the union member’s act of holding a leaflet like a placard constituted unlawful secondary activity. Analogizing to United Brotherhood of Carpenters, Local Union No. 1506 (Eliason & Knuth of Arizona, Inc.) and its other recent bannering decisions, the Board held that neither the display of the rat nor the leaflet constituted picketing. According to the Board, these displays lacked the coercive aspect of picketing that creates a physical or symbolic confrontation between the picketers and those entering the worksite: “the carrying of picket signs combined with persistent patrolling.” As nonpicketing activity, the rat and leaflet displays were lawful according to the Board because they did not, nor could they reasonably be expected to, directly cause disruption of the secondary employer’s operations.

NLRB Member Brian E. Hayes dissented from the opinion, as he has in each of the recent bannering cases, stating that the inflatable rat, “now frequent in labor disputes, constitutes a signal to third parties that there is, in essence, an invisible picket line that should not be crossed.” Member Hayes argued that both the giant rat flanked by union members as well as one member’s use of the leaflet as a placard constituted confrontational picketing “regardless of whether the [union] agent patrolled the site or carried a sign affixed to a stick.”

Practical Implications

The NLRB’s decision in Brandon Regional Medical Center further solidifies the message sent by the Board’s recent secondary-activity decisions: unions may direct a wide range of invidious tactics toward employers with whom they have no primary dispute so long as they do not patrol back and forth while carrying individual signs or engage in other coercive conduct. The Board’s recent rulings in this area give unions broad power to embroil innocent secondary employers in labor disputes, and the effects on the secondary employer’s reputation and public image can be severe. For example, just as with the large banners upheld in Eliason & Knuth, many persons seeing a giant rat displayed at a secondary employer’s business will mistakenly assume that the union has a dispute with that employer.

Employers whose entrances fall in the shadow of an inflatable rat or union banner should promptly contact legal counsel. Under certain circumstances, such as those involving trespass, threats, or damage to property by union supporters, employers may be able to take legal action against the union activity. Employers should also keep careful records of any evidence that the secondary activity actually disrupted their operations, such as whether business was unusually slow or whether employee absenteeism was unusually high.