In a case of first impression, the National Labor Relations Board (NLRB) issued a complaint asserting that a union’s use of an inflatable rat was an illegal attempt to pressure a third party not do business with the union’s intended target.
The use of inflatable rats is notoriously associated with labor union protests, and descends from the usage of the word “rat” to refer to nonunion contractors. In May of 2011, the NLRB held that a union had not engaged in unlawful secondary activity pursuant to the National Labor Relations Act (NLRA), by stationing a giant rat outside the facility of a neutral employer to protest that employer’s hiring of a non-union contractor.
In that case, the NLRB ruled that an inflatable rat did not constitute a signal picket, but instead, constituted symbolic speech, which is not subject to secondary boycott rules. This had previously allowed unions not only to place the inflatable rats at neutral entrances, but also to place them at locations where the picketed company was absent. Rats in excess of twelve to sixteen feet tall had become so ubiquitous to union protests they have their own Wikipedia article, and their size was often constrained only by local laws limiting the height of inflatable objects on display.
However, on July 26, 2018, the NLRB sustained an appeal brought by Rock Fusco & Connelly on behalf of our client who was the subject of illegal, harassing and defamatory use of an inflatable rat in conjunction with a union protest. The NLRA makes it unlawful for a union “to threaten, coerce, or restrain any person engaged in commerce” where an object is “forcing or requiring any person to cease doing business with another person.”
In this case, when the union failed to coerce a General Contractor to cease doing business with another non-union contractor, the union targeted the General Contractor’s wife and her business. The NLRB agreed with Rock Fusco & Connelly that the union’s conduct constituted an unlawful attempt to coerce the General Contractor to cease doing business with the Contractor by harassing the General Contractor’s wife and related business. Neither the wife nor the related business had any connection with the non-union Contractor.
This significant ruling by the NLRB demonstrates that employers have weapons to defend against the unions’ “scorched earth” tactics. Rock Fusco & Connelly demonstrated to the NLRB the ways in which the Union’s tactic of using an inflatable rat in its protest negatively affected our client’s business. This case is a perfect example of the creative ways our attorneys can help your business succeed now and in the future.