Rats and Roaches Protected in Picketing Ruling

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Judge Nicholas G. Garaufis considers picketing with rats and roaches (inflatable ones) a protected First Amendment activity as he ruled on a complaint by Shop-Rite’s owner Kevin Mannix.   Richard Khavkine has the story in thechiefleader.com.

Construction and General Building Laborers’ Local 79 bosses and members have been picketing outside the construction site of a Staten Island Shop-Rite construction site, using inflatables such as Scabby the Rat and roaches to protest the use of nonunion labor.

Mr. Mannix’s complaint claimed that Local 79’s actions, including the rat display and the passing out of flyers at other ShopRite locations he owns on Staten Island, were illegal since the union has no valid beef with him because he is not the construction workers’ direct employer. The union has been passing out flyers denouncing Mr. Mannix’s hiring of GTL Construction, which the local says is paying its workers less than prevailing wages.

The store’s complaint alleged Local 79 “engaged in picketing, including blocking the sidewalk, using bullhorns to amplify shouting, distributing handbills, chanting, and blowing whistles” and erected an inflatable cockroach and an inflatable rat at the construction site to publicize its dispute with GTL and with the owner of the lease.

In his July 1 order, Judge Nicholas G. Garaufis said, in essence, that prohibiting picketing activities and the displaying of an inflatable rat and cockroach would violate the First Amendment, as well as the “applicable law that binds the NLRB.”

Citing that law, known as Brandon II, the Judge wrote in his 32-page decision that “[A] rat balloon…must be viewed as an ‘expressive activity’ protected by the First Amendment.”

“The NLRB has consistently held that expressive conduct, such as a stationary banner, the distribution of leaflets, and the use of an inflated rat to ‘shame’ a secondary employer does not violate” that rule, Judge Garaufis wrote.

The complaint said the local’s representatives also worked to persuade workers at other stores owned by Mr. Mannix “to refuse to handle goods or perform services and threatened, restrained and coerced” Mr. Mannix and others.

The NLRB’s Regional Director of Region 29, which serves Brooklyn, Queens, Staten Island, and Nassau and Suffolk Counties, subsequently sought a preliminary injunction that, if granted, would have prohibited Local 79 from engaging in activities the NLRB argued amounted to unfair labor practices, including some it claimed were “threatening” or coercive.

Judge Garaufis was steadfast in his disagreement, saying that “there is no evidence” either that the ShopRite employees refused to work because of the union’s action or that the local representatives “in any way induced or encouraged” those employees to refuse to work, “let alone that such inducement or encouragement was coercive.”