Labor & Employment Law Daily EDNY rejects NLRB regional director’s bid to exterminate union’s inflatable rat
Thursday, July 11, 2019

EDNY rejects NLRB regional director’s bid to exterminate union’s inflatable rat

By Lisa Milam, J.D.

Reports of “Scabby the rat’s” demise may have been premature; a federal court refused to enjoin a union from using the inflatable vermin in a peaceful protest.

A federal court in New York refused to bar a labor union from erecting a giant inflatable rat and other persuasive conduct as part of its bid to convince the owner of a local supermarket chain to encourage the construction company that’s building a new store to forego nonunion labor. The NLRB regional director failed to make a showing that the union was trying to induce store employees to cease working, or that its conduct was coercive. Therefore, the court denied her motion for a 10(j) injunction against the union (King v. Construction & General Building Laborers’ Local 79, Laborers International Union of North America, July 1, 2019, Garaufis, N.).

The union was engaged in area-standards picketing outside three locally-owned ShopRite stores. The stores’ owner was opening a new store at a shopping center being built by a realty company using nonunion labor. As the new shopping center’s largest tenant, the grocery store owner would hold considerable sway, the union reasoned. So several union protesters handed out leaflets near the other stores, encouraging people to tell the owner to encourage the builder to pay area standard wages and benefits to the carpenters working at the construction site.

“Scabby” joins the fray. The union also erected a large inflatable rat outside one of the stores, about 70 yards away from the entrance. Attached to the rat’s stomach was a flyer that read, “Shame on you [store owner]!!!” and stated that the owner was allowing the realtor and construction company to use “exploited” labor to build its new store. The union refused a request to remove the rat, and it kept at least one inflated rat on the sidewalk in front of the store most weekdays since April. Usually a trio of union workers were positioned there, standing silently near the rat, interacting with the public only when individuals stopped and spoke to them, at which point they handed out flyers. One day in May, a group of 20-25 protestors staged a one-hour rally, during which the rat was joined by a large inflated cockroach, and the protestors handed out “Shame on you” flyers.

Two of the stores filed Board charges alleging that the union violated NLRA 8(b)(4)(i) and (ii)(B), and the Board concluded the union committed the unfair labor practices. The employer also filed a complaint against several unions under Section 8(b)(4) and LMRA Section 303, seeking damages resulting from their unlawful secondary boycott at the stores and their use of knowingly false and/or misleading handbills to engage in unlawful secondary boycotting.

The NLRB regional director then moved under Section 10(j) for a temporary restraining order and a “remarkably broad” preliminary injunction restricting the union from using the inflatables. Weeks earlier, another federal judge had blocked the regional director’s request for a TRO, finding it doubtful the NLRB could succeed on the merits of its claim in light of the extant case law on unions’ use of inflatable rats. The Board also had not shown irreparable harm, the judge said. At issue here: the regional director’s request for a preliminary injunction—which also was denied. The regional director failed to show that there is reasonable cause to belief the union’s protest activities violated the Act; even if she had, the court said, injunctive relief would not be just and proper.

No inducement to stop working. The court saw no evidence the union protesters were trying to induce or encourage employees to refuse to perform services for the stores, let alone that such inducement or encouragement was coercive (or effective, for that matter, given the lack of evidence any employees actually ceased working, or that there was any other negative impact on the stores’ labor relations).

The court rejected the regional director’s assertion that the single one-hour, mid-day rally amounted to “textbook” picketing. There were no confrontations or attempts to block the stores’ entrances. Rather, the participants stood in a single location on public property (they did not walk back and forth), chanting the usual chants heard at peaceful protests across the country. Their signs and leaflets did not call for a work stoppage or any other job action; they expressly stated: “This leaflet, produced by Local 79, is directed at the public and is not an inducement for anyone to stop working or making deliveries.”

The regional director also contended that the use of the rat was improper “signal picketing” intended to implicitly direct its members not to work at the targeted premises. Again, though, there was no evidence such a “generally understood signal” had been prearranged. And the store’s workers were represented by a different union, so the prospect that there was some secret message entailed in the rat’s presence was improbable. Also, the fact that the stores’ employees are unionized meant they were less likely to misconstrue an inflatable rat as a picket line that they would be hesitant to cross. “The court cannot believe that workers—particularly unionized workers—do not know the difference between a picket line and an inflated rat,” the court wrote.

The court conceded that store employees might have seen the rat and feared that their own employer was committing an unfair labor practice of some sort. However, the court noted, “a message about a secondary employer does not violate§ 8(b)(4)(i)(B) just because it might reach the eyes and ears of secondary employees and might cause them to think bad things about their employer.” Were this the case, it would mean unions would be prohibited from engaging in any speech that is harmful to an employer’s image—”a holding that would ‘completely eviscerate the First Amendment rights of the union,’” said the court. At any rate, the statute requires that a union actually “induce or encourage” secondary employees to cease work in order for a violation to be found.

Absent such evidence, there could be no reasonable conclusion the union engaged in unlawful “picketing” directed at store employees.

No coercive conduct. Nor did the presence of the inflatable rat amount to threats or coercion of a neutral party, the court next found, rejecting the regional director’s allegations it amounted to “economic coercion.” Rather, the rat display on a public street was akin to peaceful and limited handbilling, not picketing. The “essential element of coercion” was lacking here. To the extent the stores experienced any loss of revenue (although there was no such evidence presented here), it was a result of union persuasion, not intimidation, the court concluded.

At the outset, the court had noted that the use of an inflatable rat to publicize a labor protest enjoys First Amendment protection. Here, it refused to hold that the union’s “peaceful, nonthreatening, noncoercive, expressive activity is ‘coercion’ within the meaning of § 8(b)(4)(ii)(B) because the target of their expressive conduct feels that the rat and the text of the handbills create ‘ambigu[ity]’ or unfairly overstate the degree to which he believes he can influence the labor practices of the contractor building his new grocery store.’” The court continued: “The notion that a violation of § 8(b)(4)(ii)(B) could be found—and a federal court could enjoin expressive conduct—wherever the target of a protest disagreed with the content of the message (or, indeed, the way it is written) is untenable, and would raise serious constitutional concerns.”

Relief not just and proper. Even assuming the regional director had reasonable cause to believe that the union violated the NLRA through its conduct, the court said a preliminary injunction would not be just and proper relief in light of the “novel and expansive interpretation of the statute” advanced by the regional director. “The NLRB has consistently held that expressive conduct, such as a stationary banner, the distribution of leaflets, and the use of an inflated rat to ‘shame’ a secondary employer does not violate § 8(b)(4)(ii)(B),” the court wrote. While the NLRB currently is intent on reversing precedent on this question, the court said it was inappropriate for it to “make the initial ruling as to the propriety of a novel and unprecedented application of the statute.” In this case, the regional director was asking the court not only to “adopt a new construction of the NLRA,” but also to depart from extant Board law in doing so. Until the Board rules definitively on whether the inflatable rat violates Section 8(b)(4)(i)(B), an injunction to barring use of the rat outside a secondary site is simply not a “just and proper” remedy, the court held.

General equitable considerations weighed against injunctive relief too: although the rat has been in use since April, the regional director delayed seeking an injunction, and offered no reason why one must issue in advance of a July 24 hearing in the case. Furthermore, the employer has filed its own lawsuit against the union for damages it claims to have suffered as a result of the ongoing demonstrations; there is no reason to fear irreparable harm absent prospective relief, or that any damages could not be recouped through litigation.

Finally, noted the court, as the NLRB itself has recognized, “‘[g]overnmental regulation of nonviolent speech—such as the display of stationary banners—implicates the core protections of the First Amendment.”

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