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Is a rat a secondary picket?
January 23, 2007
That's the title of a fascinating article at 28 Cardozo Law Review 1519 (2006) written by Tzvi Mackson-Landsberg, Notes Editor, Cardozo Law Review, and 2007 J.D. Candidate at Benjamin N. Cardozo School of Law.
Here's how it starts out:
In January of 2003, several members of the Sheet Metal Workers’ International Association, a labor union, stood in front of Brandon Regional Medical Center in Brandon, Florida and gave out handbills to passersby. The handbills described a company called Workers Temporary Staffing (WTS). WTS employed non-union workers who were performing renovations at the medical center. The handbills called WTS a “rat employer,” that is, a company that “undermines wages, benefits, and . . . working conditions in the area.” The handbills warned that local living standards would drop if the community tolerated companies like WTS.
Brandon Medical Center filed a charge with the National Labor Relations Board (NLRB), claiming that the union had committed an unfair labor practice. The NLRB initiated proceedings against the union that led to a hearing before an Administrative Law Judge (ALJ). The ALJ held that the union had committed an unfair labor practice by engaging in unlawful “secondary picketing.” This ruling was not only based on the union members’ handbilling; that activity, by itself, would not have been considered picketing. The ALJ found that the union members had been picketing because, in addition to handbilling, the union members set up a sixteen-foot-tall inflatable rat. The rat was twelve feet wide at the base, wore a sign that read “Workers Temporary Staffing,” and sat “upright, smiling, with a cigar in its mouth.” This Note addresses the key argument underlying the ALJ’s decision: That it is unlawful for unions to use inflatable rats to promote secondary boycotts because the rats engage in prohibited picketing. Calling an inflatable animal a picketer may seem whimsical, but this reasoning is a serious matter for labor unions. The NLRB’s General Counsel (General Counsel) has recently endorsed this reasoning and has filed charges against at least one other union that has used inflatable rats. If the General Counsel’s reasoning prevails, unions will lose a weapon they have used effectively in their efforts to win back lost strength by gaining new members.
This Note will argue that the General Counsel’s reasoning regarding union inflatable rats in secondary campaigns ignores the limits the First Amendment sets on Congress’s power to regulate union activity through legislation like the National Labor Relations Act (NLRA). The Supreme Court has established that while Congress has broad power to regulate conduct, its power to regulate speech only extends as far as the First Amendment’s narrow limits. As a result, the Court has held that section 8(b)(4)(ii)(B) of the NLRA, which regulates the tactics that unions can use to put pressure on secondaries, outlaws certain types of conduct completely but only places limited constraints on speech.
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