Rat Eradication – Inflated and Otherwise
In late May, the New
York Times ran a grim story entitled “Rats are Taking Over New York City,” talking
about the onslaught of rats in New York and other major cities. In fact, a
record 17,353 rat sightings had been reported to the city hotline in the last
year.
In addition
to dealing with an increased population of live rats, residents of New York and
other big cities are increasingly encountering huge inflatable rats that unions
often place in front of buildings to highlight a dispute that they are having
with a particular company. In fact, it’s not unusual for me to encounter
“Scabby the Rat” on walks to the office when I am working in my firm’s New York
office.
The
National Labor Relations Board during the Obama administration engaged in a bit
of sleight of hand by equating these large rats — which are clearly intended to
block access — as nothing more than informational banners. This allowed unions
to station Scabby the Rat and his counterparts at third party locations in an
effort to pressure the third party to stop dealing with the company with which
the union actually had a dispute. (For example, they might place the rat in
front of a hotel or apartment building that was using a non-union exterminator.)
If that placement of a large inflatable had been deemed picketing, it would have
been secondary picketing which is a violation of labor laws. On the other hand,
if it was only informational bannering, it would be allowed under the labor
laws.
Now that a majority of the Board
members have been appointed by President Trump, the Board has decided to
address the rat infestation problem, at least the blow-up kind. In a recent
advice memorandum, the Board’s General Counsel suggested that the use of
inflatable rats may constitute illegal secondary picketing when used at a
neutral employer’s job site.
Whether the General Counsel’s
position will become law has yet to be seen. On June 19, a Brooklyn federal
judge denied the NLRB’s request for a preliminary injunction to stop a union
from using Scabby and an inflatable cockroach at several Staten Island
supermarkets to pressure them not to do business with a builder with which the
union was having a dispute. A hearing on the merits will be scheduled at a
later date.
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