In Sheet Metal Workers Local 15 (Brandon Regional Medical Center) (May 26, 2011), the NLRB ruled that a union’s display of a large inflatable rat at the hospital worksite of a secondary employer was lawful. The case dates back to 2006, when Brandon Regional Medical Center filed charges under Section 8(b)(4)(ii)(B) of the NLRA based on the union’s act of staging a “mock funeral” on public property in front of the hospital, with union members carrying a fake casket, dressed in grim reaper costumes, and patrolling back and forth. The union’s activities were aimed at the hospital’s use of contractors with whom the union had disputes. Section 8(b)(4)(ii)(B) makes it an unfair labor practice for a union to “threaten, coerce, or restrain any person engaged in commerce or an industry affective commerce, where...an object thereof is...forcing or requiring any person to cease doing business with any other person.” The touchstone of such secondary violations has been the coercive nature of the behavior at issue. Conduct more akin to picketing or patrolling had been deemed coercive and unlawful, whereas conduct such as handbilling, even if directed toward the same ends, was deemed lawful persuasive – as opposed to coercive – behavior within the meaning of that section. Because the Board initially decided the mock funeral violated Section 8(b)(4)(ii)(B), it found it unnecessary to pass on the hospital’s allegation that the union violated the same provision by its display of a 12 foot wide by 16 foot tall inflatable rat 100 feet from the hospital’s entrance. The rat was identified as the nonunion contractor of the hospital, and the union distributed leaflets attacking the contractor as a “rat.”

The Court of Appeals for the D.C. Circuit reversed the NLRB’s 2006 ruling regarding the mock funeral, finding it was not coercive and not secondary picketing. The court remanded the case to the NLRB to determine whether the display of the inflatable rate was coercive under Section 8(b)(4)(ii)(B).

In revisiting the case in 2011, the NLRB applied the standard articulated in Carpenters Local 1506 (Eliason & Knuth of Arizona, Inc.), 355 NLRB No. 159 (2010), with respect to union protest activity directed toward a secondary employer. The conduct in Eliason involved the display of large stationary banners at secondary employers protesting their relationships with the employers with whom the union had its primary dispute, and the Board’s focus in that decision was whether the secondary activity constitutes “intimidation” or “persuasion.” The Board in Eliason found that there was no evidence that the displays threatened or coerced the employer through violence, block of ingress and egress, or other disruptive manners. The Board noted that while certain peaceful expressive activity can still violate Section 8(b)(4)(ii)(B), the “core conduct that renders picketing coercive . . . is the carrying of picket signs combined with persistent patrolling that creates a physical, or at least symbolic confrontation between the picketers and those entering the worksite.”

The Board reached a similar conclusion in Sheet Metal Workers, finding that the inflatable rat was not coercive, did not block ingress or egress because it was stationed a sufficient distance from hospital entrances, and there was no evidence of threatening behavior by the union members who leafleted near the rat. Notably, the NLRB disregarded the union organizer’s statement to a hospital employee that the union was “picketing,” finding that the mere use of the word could not transform conduct that was not otherwise picketing.

The Board further found that the rat display, while not constituting picketing, did not otherwise constitute conduct sufficiently disruptive so as to trigger a violation of Section 8(b)(4)(ii)(B). The Board distinguished cases in which non-picketing conduct was sufficiently disruptive to fit within that section’s prohibitions, such as excessively loud bullhorn messages, throwing trash bags in a secondary employer’s lobby, or mass gatherings at a secondary employer’s location. The Board found that regulating the rat display, which it effectively deemed “expressive” speech, posed serious First Amendment concerns. Member Hayes dissented (as he did in Eliason), arguing that the display was coercive, particularly when coupled with the union agents stationed near the doors of the hospital for purposes of leafleting. Member Hayes found that the rat display was a “signal” to the public akin to a picket line, whose purpose was to intimidate and not persuade.

This decision is perhaps unsurprising in light of the Board’s re-fashioned standard for analyzing Section 8(b)(4) in Eliason and offers unions broader leeway to direct large-scale displays and engage in other tactics toward secondary employers without running afoul of that provision.

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