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Rat Eradication – Inflated and Otherwise

Rat Eradication – Inflated and Otherwise Background Decorative Image

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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This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.