Union Picketing: Inflatable Rats Under Fire

Labor Union Inflatable Rats Under Fire

Labor unions commonly use inflatable rats when they picket a company for using non-union labor in order to draw the attention of passersby and bring public awareness to their protest.

However, the use of the inflatables may soon be restricted. Under the Trump administration, the National Labor Relations Board (“NLRB”) has attempted to ban unions from using the inflatables in protests against businesses that the union does not have an ongoing labor dispute with. Specifically, the NLRB is claiming that not only are these protests considered an illegal secondary boycott under the National Labor Relations Act (“NLRA”), but also that the use of inflatables in such protests is unlawfully coercive for companies that do not directly employ the union protesters, but do business with the non-union company that the union is protesting. In turn, unions have argued that curtailing the use of the inflatables violates their First Amendment right to free speech.

Earlier this year, an Administrative Law Judge (“ALJ”) in Philadelphia ruled in substantial part against the NLRB and in favor of a union protesting outside a hotel that had contracted with a non-union company to do renovations. Here, the union utilized an inflatable rat as well as bullhorns and handbills as part of its protest. While the ALJ found that the union’s use of the bullhorn was excessive and constituted unlawful coercion of neutral parties under the NLRA, its use of the inflatable rat did not. This was because the inflatable rat was stationary and did not block people from entering and exiting the hotel or any nearby business. Thus, the ALJ allowed the protest to continue with the inflatable rat, but without the bullhorn.

The NLRB also has an active case pending in federal court in New York, King v. Construction & General Building Laborers’ Local 79, E.D.N.Y., No. 1:19-cv-03496, seeking an injunction to prevent a union protest from continuing. Here, the union has been picketing in front of ShopRite supermarkets in Staten Island (even though ShopRite is a unionized company) to protest two construction companies using non-union labor to build a new shopping center, which will include a ShopRite when completed. However, United States District Court Judge Frederic Block denied the NLRB’s request for a temporary restraining order against the union protests, which means that this case will in all likelihood go to trial.

Did you know that the NLRA protects non- union employees also? If you feel that you have been retaliated against for engaging in union activity or for complaining about the terms and conditions of your employment or have questions about the NLRA, please contact Borrelli & Associates, P.L.L.C. immediately to schedule a consultation.