Section 28 Inflatable Rats, Funeral Processions, and Banners

• Library: Employer-Employee Law 2008

In Sheet Metal Workers International Ass’n, Local 15, AFL-CIO (Brandon Regional Medical Center), 346 NLRB No. 22 (Jan. 9, 2006) (enforcement denied, 491 F.3d 429 (D.C. Cir. 2007) (denying enforcement by relying on and citing a Ninth Circuit case that the NLRB has consistently rejected and applying the Constitutional standards for picketing outlined in abortion clinic cases)), the NLRB found that a union’s staging of a mock funeral procession in front of a hospital constituted a secondary boycott under NLRA § 8(b)(4)(ii)(B), 29 U.S.C. § 158(b)(4)(ii)(B). The NLRB’s General Counsel issued a complaint alleging that two distinct actions constituted secondary boycotts:

1. The General Counsel alleged that the union violated § 8(b)(4)(ii)(B) by setting up a mock funeral in front of a hospital, complete with an eight foot tall Grim Reaper, mourners, funeral music, and union officials passing out leaflets warning, “Going to Brandon Regional Hospital should not be a Grave Decision” and listing wrongful death lawsuits against the hospital. The union’s mock funeral was intended to put pressure on the hospital to stop doing business with two of the hospital’s construction and staffing subcontractors.

2. The General Counsel alleged that the union violated § 8(b)(4)(ii)(B) by displaying a large inflatable rat near the hospital’s entrance.

An administrative law judge (ALJ) decided that both the inflatable rat and the funeral procession constituted secondary boycotts against the hospital and were violations of the NLRA. Sheet Metal Workers’ Int’l Ass’n, Local 15, AFL-CIO (Brandon Reg’l Med. Ctr.), 2004 WL 2843187 (Dec. 7, 2004). In affirming the ALJ’s decision, the NLRB unanimously adopted the ALJ’s finding that the mock funeral procession violated § 8(b)(4)(ii)(B). Sheet Metal Workers Int’l Ass’n, Local 15, AFL-CIO, 346 NLRB No. 22, at *2. The NLRB declined to consider the legality of the union’s use of the inflatable rat, stating in a footnote that a finding of an additional violation would be cumulative. Id. at *3 (n.2). Although the Eleventh Circuit denied enforcement, the NLRB will likely continue to find that such protests constitute secondary boycotts.

While the secondary boycott unfair labor practice charge worked its way through the NLRB’s procedural system, a...