By: Alan M. Levy

On May 26, 2011, by a 3-1 majority, the National Labor Relations Board members appointed by the current administration ruled that a union could place a 16-feet tall, 12-feet wide inflatable rat outside a hospital with a sign saying that a non-union subcontractor on the premises was a “rat employer.” They also allowed distribution of leaflets saying the contractor’s labor supplier was “undermin[ing] the wages and benefits established by our local labor agreement or otherwise violates workers’ rights.” The Board also held that a union organizer could stand next to a vehicle entrance, holding a leaflet with the same message in front of him like a picketer’s placard, directed at hospital visitors using its parking lot. Sheet Metal Workers Int. Assn., Local 15 (Brandon Medical Center), 356 NLRB No. 162 (5/26/11). The majority opinion said that picketing only becomes an unlawful secondary boycott when it involves “carrying of picket signs combined with persistent patrolling that create[s] a physical or at least a symbolic confrontation between the picketers and those entering the worksite.” In other words, a stationary symbol or a union agent who does not specifically and directly “confront” the neutral employer’s personnel or (here) patients and visitors is not a picket, so, even if their message is negative, their activities are not unfair labor practices under the statute limiting secondary boycott picketing.

The facts in this case suggest the elements which an employer must prove to counter this union weapon. The dispute was with the subcontractor and the general that hired it (the “primary” employers). The hospital was the neutral (secondary) employer. Section 8(b)(4)(ii)(B) of the Labor Management Relations Act prohibits picketing to coerce the neutral so that it will cease doing business with the targeted primary. The inflatable rat was placed on public property, at least 145 feet from each of the two vehicle entrances and 100 feet from the front door of the hospital which had allowed the non-union subcontractor on its premises. If the rat was moved from one entrance to another, rather than kept stationary, the picketing limits would have applied, particularly if this were done with an “element of confrontation” toward those neutral parties entering or leaving the hospital. Similarly, if the lone union agent holding a leaflet at the approaching drivers’ eye level had “patrolled” instead of remaining still, the picketing limits would have applied to him. The lack of any evidence that the union agents had “physically or verbally accosted hospital patrons” insulated them from finding an 8(b)(4)(ii)(B) violation. If such confrontation had been proven, the stationary positions may not have been exempted.

The Board also noted that unlawful coercion could warrant finding an unfair labor practice by the demonstrators whether or not they physically “patrolled.” It gave as examples of such coercion “trash bags hurled into a [neutral] secondary employer’s building lobby, bullhorn messages broadcasted at ‘extremely high volume’ at a secondary building’s tenants, and mass gatherings that included the shouting of derogatory names at striker replacements…” If there is evidence that the “location, size or features of the balloon … were likely to frighten those entering the hospital, disturb patients or their families, or otherwise interfere with the business of the hospital in a manner analogous to the conduct deemed coercive in these examples, a violation could be found.

In addition, it must be noted that the distribution of handbills, by itself, is not picketing and has some First Amendment protection as the exercise of free speech and freedom of the press. If the rat and the lone union agent were not “picketing,” the use of handbills was permissible “expressive activity.”

Finally, the majority addressed the dissent’s argument that this rat display was “tantamount to picketing” as a “signal” creating an “invisible picket line that should not be crossed.” The majority rejected this theory because it defined unlawful “signal picketing” as “directed [at] … employees of secondary employers, as opposed to the general public, and the signal is to cease work.” To prove an unfair labor practice by the union, there must be a showing that some neutral’s employees (here, the hospital staff or people making deliveries to or pick-ups from the hospital) had refused to cross this “invisible picket line” and perform their work. If such work stoppages were present, the “signal” argument could have been successful.

In summary, a neutral cannot be picketed with the objective of causing it to cease doing business with the target of the picketing union’s primary dispute. A stationary announcement of the dispute at a location where employees of both the primary and the neutral are working will not be treated as “picketing” limited by the secondary boycott rules. However, if the union “patrols,” utilizes coercive conduct, or confronts neutrals as part of their demonstration, or if the stationary figure signals employees of neutrals to refuse to work at the site, a violation may be found. The employer victimized by this union activity may overcome this new protection for union demonstrators if it can provide evidence of these deviations from “stationary” non-coercive statements.

This is a very complex and fluid area of the law, so great care must be taken in developing the employer’s case. Should you have any questions about particular events or conduct in this area or strategies to minimize such union activities, Lindner & Marsack, S.C. will be happy to discuss your rights and your options in these situations.

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