Friday, May 27, 2011

NLRB: Union's Giant Rat Outside Hospital Wasn’t Coercive

Let’s face it, most people don’t like rats.  They aren’t usually associated with anything good, they carry disease, and they can give a pretty nasty bite.  Heck, they’re not even very cute.  So why was it so important to a union that it be able to put a giant inflatable rat (16 feet tall and 12 feet wide) in front of an acute care hospital?  Did it really think that displaying vermin would endear the union cause to people who might already be in a less-than-affable state of mind because they were there to visit loved ones who were critically ill?

While we might fairly debate these and other questions, only one question mattered to the hospital:  Wasn’t the union’s conduct unlawfully coercive?  After all, the union didn’t have a direct dispute with the hospital; the union’s primary beef was with a construction company that was using non-union subcontractors to work on a project on the hospital’s premises.  The hospital was simply what’s known in labor circles as a “secondary employer.”

Under longstanding labor law, a union may not “threaten, coerce, or restrain” a secondary employer not directly involved in the primary labor dispute if the object of the union’s conduct is to cause the secondary employer to cease doing business with the primary employer.  Also, picketing that seeks such a secondary objective is generally found to be unlawfully coercive, while simply passing out handbills and other literature with the same objective is deemed to be protected speech.  Thus, the question boiled down to whether the display of the giant rat – widely recognized by unions as a symbol representing non-union contractors – was an attempt to coerce the hospital into getting rid of the non-union construction company.  Perhaps not surprisingly, the National Labor Relations Board sided with the union and ruled that the conduct was lawful.

The Board majority reasoned that displaying the giant rat did not involve the type of confrontational conduct by union members (e.g., parading, shouting, impeding access, or otherwise interfering with the hospital’s operations) that one would expect to find in unlawful picketing.  Rather, it decided that the rat was nothing more than “symbolic speech,” more akin to peaceful handbilling.  Such conduct, it declared, was lawful and protected because it merely drew attention to the union’s dispute and “cast aspersions” on the non-union contractor without being likely to frighten those entering the hospital or disturbing patients or their families.  (The majority also relied, perhaps ill-advisedly, on the recent Supreme Court case holding that the First Amendment protects the right of members of a small church in Kansas to roam the country protesting at the funerals of dead servicemembers.  Previous Supreme Court cases have pointed out the inapplicability of such First Amendment concepts in the context of economic labor disputes.)

One Board member, however, did believe that the giant rat display was coercive and, therefore, unlawful.  Member Mark Hayes noted that hospitals are unlike factories, mines, or assembly plants.  Instead, they are places "where human ailments are treated, where patients and relatives alike often are under emotional strain and worry . . . and where the patient and his family . . . need a restful, uncluttered, relaxing, and helpful atmosphere."  In that context, he concluded, “For pedestrians or occupants of cars passing in the shadow of a rat balloon, which proclaims the presence of a ‘rat employer’ and is surrounded by union agents, the message is unmistakably confrontational and coercive.”

Decide for yourself.  The Board’s decision is here.

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