These days, a union protest or picket that doesn’t include a 16-foot inflatable rat, well, just isn’t really a protest.  Expect to see more of them after the Board’s decision yesterday in Brandon Regional Medical Center (pdf).  (For an enormous compilation of rat photos, see this link).  The Board held that the ubiquitous rat may be used not only to protest at a site of the employer with whom the union has a labor dispute, but also at those of “secondary” employers who do business with the primary employer.

In this case, the union had a dispute with Massey Metals and its temp firm WTS, which was providing nonunion employees to do sheet metal work at the Brandon Regional Medical Center, where Massey was constructing an addition.  The union inflated the rat and positioned it 100 feet from the front door of the hospital, and union members handed out leaflets.  One union member stood near the hospital’s vehicle entrance and held out the leaflet with both hands to show visitors driving in and out of the hospital parking lot.

Section 8(b)(4)(ii)(B) of the Act prohibits unions from “threatening, coercing, or restraining” employers who do business with a primary employer when the object of the activity is either to coerce the secondary employer to stop doing business with the primary, or to force the primary to recognize the union.

Relying entirely on last year’s decision in Carpenters Local 1506 (Eliason & Knuth of Arizona, Inc.), which had held that the use of stationary banners at a secondary employer did not violate the Act, the Board held that the rat and outstretched leaflet were permissible because they were merely “persuasive” and not “intimidating.”

In dissent, Member Hayes found the use of the rat (“a well-known symbol of labor unrest”) to be inherently coercive, and its use tantamount to picketing.  The union member holding out the leaflet, Member Hayes reasoned, was not handbilling; he was effectively wearing a placard, long held to be the equivalent of a picket sign.

The Board’s decision is notable not only for its conclusion, which will undoubtedly spark greater activity and greater burdens for employers who have no labor dispute, but also for its heavy, almost single-minded reliance on its own 2010 decision and apparent lack of interest in finding support for its conclusions in older cases.

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Photo of Mark W. Batten Mark W. Batten

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters…

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters and discrimination claims. Ranked by Chambers USA, Mark is hailed as “a fabulous lawyer, handling interesting and complex cases.” Clients “highly recommend him to anyone seeking litigation counsel in the Boston area,” as well as note “he is responsive, pragmatic and team-oriented, and offers excellent legal advice.”

He assists clients with all aspects of employment policies and practices, including hiring, termination, leaves, accommodation of disabilities, and other matters. Mark also handles diverse civil litigation, including litigation of noncompetition agreements, ERISA matters, discrimination and wrongful termination litigation in federal and state courts; proceedings before the Massachusetts Commission Against Discrimination; wage and hour matters; and labor arbitrations. He is also an experienced appellate attorney both in employment cases and other civil litigation, handling appeals at all levels in the state courts and in the United States Courts of Appeals.

Mark also has substantial experience with traditional labor matters. He regularly represents employers in a variety of industries, including a number of newspaper and media companies, in collective bargaining, practice before the NLRB, labor arbitrations, union organizing campaigns, and day-to-day advice on administration of collective bargaining agreements. He regularly advises clients in both union and non-union settings on diligence matters in corporate acquisitions and financings. He also has experience on behalf of securities firms in arbitrations before the NASD and NYSE of customer and employee complaints.

Mark also practices on behalf of newspapers and other media in newsroom litigation, including libel defense and representation of reporters under subpoena, and has substantial experience in litigation involving access to sealed records and judicial proceedings on behalf of media companies.

Before joining Proskauer, Mark was a trial attorney in the Civil Division of the U.S. Department of Justice in Washington, where he was lead counsel in major litigation for over two dozen federal agencies, ranging from the U.S. Air Force, the CIA, and the U.S. Secret Service to the Department of Housing and Urban Development and the National Endowment for the Arts.

Mark regularly writes and lectures on employment-related matters, including, for instance, MCLE’s Representing Clients Before the Massachusetts Commission Against Discrimination.

In his spare time, Mark is an experienced computer programmer, conversant in C, C++, and other languages. He has ported software between computer operating systems and has published several commercial computer games.