Can Employers Expect to See More of the Rat?

Recently, the New Jersey Supreme Court struck down a Lawrence Township ordinance that purported to ban the use of inflatable balloons, as well as banners and streamers, except in connection with grand openings. The court said the ban was not “content-neutral” since it allowed balloons to be used in one circumstance, grand openings, while prohibiting them in others, including union-related disputes. Union Rat 2

Large inflatable rats have been used by unions as a signal that a labor dispute was taking place at the site of the rat balloon, usually involving a nonunion employer. The ruling seems a bit of a stretch. The court said it was a violation of free speech to prohibit one kind of expression while allowing another, but the ordinance did not single out union activity, it banned any kind of inflatable balloons except for one narrow circumstance. Union protests and the Thanksgiving Day parade are among the many activities covered by the ban.

With the publicity garnered by the ruling and the support of the Obama administration for union positions, we can expect to see the hoisting of more rat balloons. However, the NLRB has not hesitated to restrict the use of the rat in situations where the union claims it is doing area standards picketing rather than organizing. The NLRB sees the rat as a form of signal picketing that constitutes illegal secondary activity. Of course with the new Liebman Board, that view is probably going to be short-lived.

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