NLRB Declines to Rule on Legality of Inflatable Rat

The NLRB recently avoided resolving a hot issue when it declined to answer whether a union violated Section 8(b)(4)(ii)(B) by displaying a large inflatable rat on public property near a secondary employer’s entrance. Sheet Metal Workers Local 15 (Brandon Regional Medical Center), 346 NLRB No. 22, slip op. at 2, n.3 (2006).

In that case, the General Counsel issued a complaint alleging that the respondent union violated the Act on two separate occasions. First, the GC argued that the union violated Section 8(b)(4)(ii)(B) by displaying the inflatable rat. Second, the GC argued that the union violated that same section by staging a mock funeral procession during which union members patrolled the public sidewalk in front of the secondary employer while carrying a faux casket. An ALJ found that each action separately violated Section 8(b)(4)(ii)(B). The Board unanimously adopted the judge’s finding that union violated the Act by engaging in the mock funeral procession. Reasoning that a finding of an additional violation would be cumulative and would not affect its Order, the Board declined to address the legality of the inflatable rat.

The press has given a good deal of attention to the inflatable-rat issue lately. See Joy Davia, Inflatable Rats Seek Cover After Labor Board’s Ruling, Dem. & Chron., Sept. 25, 2005; Alison Grant, Free Speech or Vermin?, Plain Dealer, Oct. 4, 2005; Jessica Marquez, Unions’ Inflatable Rat an Endangered Species, Workforce Management, Sept. 9, 2005; Alan Feuer, Labor’s Huge Rubber Rat, Caught in a Legal Maze, N.Y. Times, Dec. 28, 2005, at B1 (subscription required). To see streaming video of MSNBC coverage, click this link, insert “rat becomes union protest symbol” into the "MSN Video search" box, and click on the result. The issue has also received some academic commentary. See Timothy F. Ryan and Kathryn F. Davis, Banners, Rats, & Other Inflatable Toys, 20 Lab. Law. 137 (2004).

Displaying a large inflatable rat is similar in many respects to erecting a large banner. The Board has been unsuccessful in its attempts to persuade federal courts in Section 10(l) proceedings that reasonable cause exists to believe that unions have violated the Act by erecting large banners near secondary employers. Overstreet v. Carpenters Local 1506, 409 F.3d 1199 (9th Cir. 2005); Gold v. Mid-Atl. Reg’l Council of Carpenters, 2005 WL 3597692 (D. Md. Dec. 22, 2005). It remains to be seen how the newly constituted Board will handle these issues.