It’s a giant 16-foot balloon in the shape of a rat, and it is becomingly increasingly common in labor disputes. Unions display the giant balloon as a way of informing the public of their dissatisfaction with the targeted employer, i.e., the “rat employer”. But should it be viewed legally as a picket? The question is quite an important one, as federal law only allows unions to picket primary employers, such as an employer that does not pay the wage scale sought by the union. A secondary employer, which merely does business with the primary, may not be picketed.  By contrast, because of First Amendment concerns, the Supreme Court has long held that unions may voice their displeasure at such secondary employers, so long as they do not actually picket. So, how does the rat stand?  Is it a modern-day form of a picket sign?  Or merely an exercise in free speech?

On May 26, in a case remanded to it from the DC Circuit Court of Appeals, the National Labor Relations Board held it’s free speech.  The Board found that the defining characteristic of an unlawful picket is the “coercion” and “confrontation” it seeks to place upon a consumer. The mere exercise of free speech, on the other hand, is not coercive. By a 3-1 majority, the Board proceeded to explain its view that rat balloons were not coercive, but merely symbolic speech. The opinion of the Democrat-controlled Board was not unexpected, following in the wake of similar cases decided recently on the issue. The vigorous dissent argued that while the balloon might appear innocuous or even comical from afar, to the pedestrian on the ground, the giant balloon, accompanied by the presence of union agents, would surely be confrontational. (The case is Sheet Metal Workers Local 15 (Brandon Region Medical Center.)

Nothing against our red-eyed little friends – we firmly believe The Rats of NIMH will remain an enduring classic of children’s literature – but the presence of “the rat” can mean major headaches on a jobsite. Labor disputes and the delay and litigation that often follow in their wake can be very costly if not handled correctly.