Sheet Metal Workers Local #15 (Brandon Regional Hospital)

National Labor Relations Board - Board Decisions

May 26, 2011

356 N.L.R.B. 1290 (N.L.R.B. 2011)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
356 NLRB No. 162
1290
Sheet Metal Workers International Association, Local
15, AFL–CIO and Galencare, Inc., d/b/a Bran-
don Regional Medical Center and Energy Air,
Inc. Cases 12–CC–1258, 12–CC–68, 12–CC–
1270, and 12–CG–13
May 26, 2011
SUPPLEMENTAL DECISION AND ORDER
CHAIRMAN LIEBMAN AND MEMBERS BECKER, PEARCE,
AND HAYES
This case, on remand from the United States Court of
Appeals for the District of Columbia Circuit1 presents the
issue of whether the Respondent Union (Union) violated
Section 8(b)(4)(ii)(B) of the Act by: (1) displaying a
large inflatable rat at the hospital worksite of a secondary
employer; and (2) stationing, at the vehicle entrance of
the hospital, a union member who, with two arms out-
stretched, displayed a leaflet directed at incoming and
outgoing traffic. Applying the Board’s reasoning in
Carpenters Local 1506 (Eliason & Knuth of Arizona,
Inc.), 355 NLRB 811 (2010), that the display of large
stationary banners at secondary employer locations did
not violate Section 8(b)(4)(ii)(B), we find that the Un-
ion’s protest activity similarly did not violate this statuto-
ry provision. Accordingly, we shall dismiss the com-
plaint.
Background
On January 9, 2006, the National Labor Relations
Board issued a Decision and Order in this proceeding,
finding that the Union violated Section 8(b)(4)(ii)(B) by
staging a “mock funeral” on public property in front of
the hospital.2 The Board found that the mock funeral,
which “consisted of patrolling the entrance to the Hospi-
tal,” constituted picketing and was unlawfully coercive.
In light of this finding, the Board found it unnecessary to
decide whether the Union also violated Section
8(b)(4)(ii)(B) by its display of the inflatable rat and by its
member’s conduct in displaying, with two arms out-
stretched, a leaflet directed at incoming and outgoing
traffic.
The Union filed a petition for review of the Board’s
Order with the United States Court of Appeals for the
District of Columbia Circuit and the Board cross-
petitioned for enforcement. On June 19, 2007, the court
granted the Union’s petition for review and reversed the
Board’s decision. The court found that the mock funeral
was not picketing and was not otherwise coercive. Ac-
cordingly, it denied enforcement of the Board’s Order,

1 Sheet Metal Workers’ Local 15 v. NLRB, 491 F.3d 429 (2007).
2 Sheet Metal Workers Local 15 (Brandon Regional Medical Cen-
ter), 346 NLRB 199.
and remanded the case to the Board to decide whether
the rat and leaflet display violated Section 8(b)(4)(ii)(B).
On September 4, 2007, the Board notified the parties
that it had accepted the remand and invited them to file
statements of position. The Union and the General
Counsel filed position statements.
Facts
Brandon Regional Medical Center, the secondary em-
ployer in this case, commenced construction of an addi-
tion to its hospital in 2003. Brandon selected Massey
Metals, Inc. (Massey), a sheet metal contractor, to per-
form HVAC installation on the project. Massey, in turn,
used Workers Temporary Staffing (WTS), a labor supply
company, to provide employees for the project.
The Union had a primary labor dispute with Massey
and WTS over their use of nonunion labor and their al-
leged payment of wages and benefits below area stand-
ards. In furtherance of this primary dispute, the Union
sought to persuade Brandon to cease doing business with
Massey and WTS by engaging in various protests to pub-
licize the dispute in the vicinity of the hospital.
In January and February 2003, union members mount-
ed an inflated rat balloon on a flatbed trailer and posi-
tioned the trailer on public property in front of the hospi-
tal. The trailer was stationed approximately 170 feet
from one vehicle entrance to the hospital, 145 feet from
another entrance, and 100 feet from the hospital’s front
door. The rat balloon measured about 16-feet tall and
12-feet wide, and had a sign captioned “WTS” attached
to the rat’s abdomen.
Union members, standing next to the trailer and at ve-
hicle entrances to the hospital, distributed leaflets pro-
claiming “[t]here’s a ‘rat’ at Brandon Regional Hospi-
tal.” The leaflet identified WTS as the rat or, more pre-
cisely, a “rat employer” and stated that WTS was
“undermin[ing] the wages, benefits and other working
conditions established by our local labor agreement or
otherwise violates workers’ rights.”
Brendon Holly was one of the union leafletters. Ra-
ther than distribute the leaflets, Holly stood at one of the
hospital’s vehicle entrances for about 2 days in January
and held the leaflet out with two arms, directed at visitors
driving into and exiting the hospital parking lot.
As this activity was occurring, the hospital’s safety and
security director asked the Union’s organizer what the
Union was doing. The organizer replied that the Union
was “picketing” and explained that the rat balloon
“would probably get the attention of the public more than
just regular handbills.”
The Union discontinued its display of the rat balloon in
late February 2003. It did not return to the hospital until
SHEET METAL WORKERS LOCAL 15 (BRANDON MEDICAL CENTER) 1291
March 15, 2004, when it staged the mock funeral which,
as noted, the court found was lawful.
The administrative law judge found that the Union’s
“conduct in inflating a 16-foot-tall rat displaying a ban-
ner [w]as a surrogate for a picket,” and that Holly’s con-
duct in “holding a leaflet in front of his chest as a plac-
ard,” directed at motorists entering the hospital, “consti-
tuted picketing.” Based on his further finding that this
conduct was “confrontational” and, hence, “coercive,”
and that its “object . . . was to have the Hospital cease
doing business” with the two primary employers, the
judge concluded that the Union violated Section
8(b)(4)(ii)(B).
Analysis
Subsequent to the court’s remand of allegations that
the rat display and Holly’s leaflet display violated Sec-
tion 8(b)(4)(ii)(B), the Board issued its decision in
Eliason, clarifying its analytical approach under Section
8(b)(4) when assessing union protest activity directed at
a secondary employer. Relying on a consistent line of
Supreme Court precedent culminating in DeBartolo
Corp. v. Florida Gulf Coast Building Trades Council,
485 U.S. 568 (1988), the Board stated that the determina-
tive question as to whether union activity at a secondary
site violates Section 8(b)(4)(ii)(B) is whether it consti-
tutes “intimidation or persuasion.” Eliason, 355 NLRB
811, 814. Union protest activity that is merely persua-
sive is lawful, the Board explained, “even when the ob-
ject of the activity is to induce the secondary to cease
doing business with a primary employer.” Id. By con-
trast, the Board held that protest activity whose “impact
[on a secondary employer] owes more to intimidation
than persuasion” is not lawful. Id. at 6.
In Eliason, the Board found that the union protests di-
rected at secondary employers involved peaceful expres-
sive activity and, therefore, dismissed the complaint al-
leging a violation of Section 8(b)(4)(ii)(B). As noted, the
union in Eliason displayed at the locations of secondary
employers large stationary banners that protested the
companies’ business relationships with employers with
whom the union had primary disputes. Here, the Union’s
protest activity took a different form. However, we find
that the Board’s legal analysis in Eliason in finding the
banner displays lawful is applicable in determining
whether the inflatable rat and Holly’s leaflet display vio-
lated Section 8(b)(4)(ii)(B).
The first step of the Board’s analysis in Eliason was to
examine whether the banner displays violated the literal
terms of Section 8(b)(4)(ii)(B). 355 NLRB 811, 814.
The Board found no evidence of this, noting that there
was “no contention that the [Union] threatened the sec-
ondary employers or anyone else . . . [or] coerced or re-
strained the secondaries as those words are ordinarily
understood, i.e., through violence, intimidation, blocking
ingress and egress, or similar direct disruption of the sec-
ondaries’ business.” Id. Nor did the Board find any in-
dication in the legislative history of Section
8(b)(4)(ii)(B) that Congress intended to prohibit peaceful
stationary displays of banners at secondary employers’
premises. To the contrary, the Board noted that the “fo-
cus of Congress was picketing, not ‘peaceful persuasion
of customers by means other than picketing’.” Id. at 5,
quoting DeBartolo, supra, 485 U.S. at 584.
As in Eliason, there is no contention here that the in-
flatable rat or Holly’s leaflet display threatened, coerced
or restrained the hospital through violence, blocking in-
gress or egress or similar direct disruption of the hospi-
tal’s business.3 Nor is there any indication in the legisla-
tive history of Section 8(b)(4)(ii)(B) that Congress in-
tended to prohibit these types of displays which, like the
banner displays, were stationary and peaceful.
Recognizing, however, that peaceful expressive activi-
ty at a purely secondary site can violate Section
8(b)(4)(ii)(B) if the activity is deemed to be picketing,
the Board further considered in Eliason whether the ban-
ner displays constituted picketing. The Board rejected
this contention, finding that the banner displays lacked
the essential “element of confrontation [that] has long
been central to our conception of picketing for purposes
of the Act’s prohibitions.” 355 NLRB 811, 816. The
Board explained that the “core conduct that renders pick-
eting coercive under Section 8(b)(4)(ii)(B)” is the carry-
ing of picket signs combined with persistent patrolling
that “create[s] a physical or, at least, a symbolic confron-
tation between the picketers and those entering the
worksite.” Id. The Board found that the banner displays
lacked these characteristics of picketing, noting that the
banners were held stationary, were located at sufficient
distances from the vehicle or building entrances of the
secondary sites such that “members of the public and
employees wishing to enter the secondaries’ sites did not
confront an actual or symbolic barrier,” and were not
“posted” in such a manner that those entering the sites
would perceive the individuals holding the banners as
“threatening.” Id. at 816–817. Accordingly, in the ab-
sence of any of those confrontational elements, the Board

3 In his brief to the judge, the General Counsel described the rat as
“intimidating,” but did not explain how or contend that it was coercive
for this reason. Rather, he argued, and the judge found, that the rat
display was coercive because it was the legal equivalent of picketing.
Thus, our dissenting colleague’s conclusion that a rat balloon, a proc-
lamation of a “rat employer,” and the presence of union agents con-
veyed a message “unmistakably confrontational and coercive” falls
outside the General Counsel’s theory of the case and is, in any event, a
mere assertion unsupported by evidence or experience.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1292
concluded that an 8(b)(4)(ii)(B) violation could not be
found on the basis that the bannering displays constituted
picketing. Id.
Similarly here, we conclude that neither the rat display
nor Holly’s leaflet display constituted picketing. These
displays, like the banner displays in Eliason, entailed no
element of confrontation, as they were stationary and
located at sufficient distances from the vehicle and build-
ing entrances to the hospital that visitors were not con-
fronted by an actual or symbolic barrier as they arrived
at, or departed from, the hospital.4 Further, there was no
evidence that Holly or the individuals attending the rat
physically or verbally accosted hospital patrons; nor does
the evidence indicate that they were “posted” near the
hospital “in a manner that could have been perceived as
threatening” to hospital patrons. Eliason, supra at 17.5
Accordingly, because we find that the rat display and
Holly’s leaflet display did not involve any confrontation-
al conduct, we reject the judge’s finding that these dis-
plays constituted picketing. The judge provided no ra-
tionale for this conclusion, other than citing the “admis-
sion” of the Union’s organizer, in response to a hospital
official, that the Union was “picketing.” Brandon, supra,
346 NLRB at 206. But the “mere utterance of that word”
in circumstances, as here, which show that the Union’s
conduct was bereft of any confrontational element, “can-

4 The judge found, as we noted above, that the rat was located 145
feet from one vehicle entrance to the hospital (at Oakfield Drive), 170
feet from a second vehicle entrance (at Moon Drive), and 100 feet from
the front doors of the hospital. Brandon, supra, 346 NLRB at 203. The
relevant distances with respect to Holly are not indicated in the record.
However, photographic exhibits show him standing on the public side-
walk next to the Moon Drive vehicle entrance to the hospital. In his
position statement, the General Counsel estimated that Holly was ap-
proximately 197 feet from the front doors to the hospital. Compare
Eliason, 355 NLRB 811, 812 (“banners were placed between 15 and
1050 feet from the nearest entrance to the secondaries’ establish-
ments”). See also Carpenter Local 1506 (Marriott Warner Center
Woodland Hills), 355 NLRB 1346 (banners displayed at several sec-
ondary sites “less than 15 feet from the entrances to the premises,”
including one “next to” a vehicle entrance, held lawful in absence of
evidence of “any form of confrontation between the banner holders and
those entering or exiting the premises”).
5 We reject our dissenting colleague’s argument, and his reliance on
Lumber & Sawmill Workers Local 2797 (Stoltze Land & Lumber), 156
NLRB 388 (1965), that Holly “plainly was picketing” because he was
“posted” at the hospital with his leaflet held out as a placard, rather than
distributing them in the manner found lawful in DeBartolo. As we
explained in Eliason (355 NLRB 811, 817), the mere “posting” of
individuals at a secondary site, without patrolling or other accompany-
ing conduct that reasonably can be regarded as confrontational, is not
picketing, and to the extent that Stoltze and other “posting” cases dis-
cussed in Eliason held otherwise, we rejected their holdings as incon-
sistent with DeBartolo. Id. at 7–8. Therefore, even accepting our col-
league’s description of Holly as being “posted” at the hospital, he was
not patrolling or engaged in other confrontational conduct that could be
deemed picketing.
not transform” what is not picketing “into picketing.”
Teamsters Local 688 (Levitz Furniture), 205 NLRB
1131, 1133 (1973) (rejecting, as evidence of picketing,
union handbillers’ statements to a company official that
they were picketing).
Having concluded that the rat display and Holly’s leaf-
let display did not constitute picketing, we consider, in
accord with Eliason, whether that conduct nevertheless
was unlawfully coercive. 355 NLRB 811, 820. In
Eliason, the Board held that a violation of Section
8(b)(4)(ii)(B) may be found if nonpicketing “conduct
directly caused, or could reasonably be expected to di-
rectly cause, disruption of the secondary’s operations.”
Id. As examples of nonpicketing conduct that have been
found unlawfully coercive, the Board cited cases involv-
ing trash bags hurled into a secondary employer’s build-
ing lobby, bullhorn messages broadcasted at “extremely
high volume” at a secondary’s building tenants, and mass
gatherings that included the shouting of derogatory
names at striker replacements housed inside a secondary
employer’s motel. Id. at fn. 29. The Board in Eliason
found no evidence to support a violation under this
standard, noting that the “banner holders did not move,
shout, impede access, or otherwise interfere with the sec-
ondary’s operations.” Id. at 820.
We similarly find no evidence here to support a find-
ing that the display of the inflatable rat or Holly’s leaflet
display constituted nonpicketing conduct that was unlaw-
fully coercive. Only six union agents were involved in
the rat display, while Holly acted alone, and there is no
evidence that their conduct was other than orderly. Like
those who held the banners in Eliason, neither Holly nor
the rat balloon attendants moved, shouted, impeded ac-
cess, or otherwise interfered with the hospital’s opera-
tions. The rat balloon itself was symbolic speech. It
certainly drew attention to the Union’s grievance and
cast aspersions on WTS, but we perceive nothing in the
location, size or features of the balloon that were likely
to frighten those entering the hospital, disturb patients or
their families, or otherwise interfere with the business of
the hospital in a manner analogous to the conduct in the
cases cited above or otherwise proscribed by Section
8(b)(4)(ii)(B)6

6 The dissent repeatedly states that the rat balloon was confronta-
tional and coercive, but makes no effort to explain why this was so.
The dissent cannot offer any such explanation because it also acknowl-
edges that the rat image was well understood to be a symbol for “a
nonunion contractor” and that its presence “proclaims the presence of a
‘rat employer.’” In fact, the dissent would find coercion in this case
even without the rat balloon: “stationing of union agents in this manner
proximate to a neutral employer’s main entrance . . . has been found
coercive.” Such a capacious definition of coercion drains the word of
SHEET METAL WORKERS LOCAL 15 (BRANDON MEDICAL CENTER) 1293
Our conclusion that the conduct at issue here was law-
ful is strongly supported by application of the “constitu-
tional avoidance” doctrine.7 As explained in Eliason, the
Board must avoid, if possible, construing the statutory
phrase “threaten, coerce or restrain” in a manner that
would raise serious problems under the First Amend-
ment. 355 NLRB 811, 821. There, the Board found “no
basis for treating a banner display differently from the
other forms of expressive activity that the Supreme Court
has concluded implicate the First Amendment,” such as
cross-burning,8 flag burning,9 and residential lawn
signs.10 Id. at 822. Our conclusion in Eliason is strongly
supported by the Supreme Court’s recent decision in
Snyder v. Phelps, 562 U.S.__ (March 2, 2011), which
affirmed First Amendment protection of picketing by
church members of a military funeral, adjacent to a pub-
lic street, with placards communicating the members’
belief that God hates the United States for its tolerance of
homosexuality.11 The Court found the “particularly hurt-
ful” views to be constitutionally protected, in part, be-
cause—like the conduct here—the church members dis-
played their signs “. . . peacefully on matters of public
concern at a public place adjacent to a public street.”
Slip op. at 10. As the Court stated, ‘“We have repeatedly
referred to public streets as the archetype of a traditional
public forum,’” adding that “‘[t]ime out of mind’ public
streets and sidewalks have been used for public assembly
and debate.” Id. (quoting Frisby v. Schultz, 487 U.S.
474, 480 (1988)). If the First Amendment protects con-
duct or statements as disturbing to many as this, surely
prohibiting an inflatable rat display, with a handbill re-

all meaning and flies in the face of the Supreme Court’s decision in
DeBartolo.
7 Our dissenting colleague finds no First Amendment concerns im-
plicated here, characterizing the union conduct as part of an “economic
labor dispute” subject to broad regulation by the government, in con-
trast to “noneconomic political protests.” We reject that distinction as
inconsistent with the Supreme Court’s decision in DeBartolo, supra.
What matters is not whether the protest in this case was “economic” or
“political,” but whether it amounted to expressive activity and whether
it was coercive.
8 Virginia v. Black, 538 U.S. 343 (2003).
9 Texas v. Johnson, 491 U.S. 397 (1989).
10 City of Ladue v. Gilleo, 512 U.S. 43 (1994).
11 The signs displayed read: “God Hates the USA/Thank God for
9/11,” “America is Doomed,” “Don’t Pray for the USA,” “Thank God
for IEDs,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests
Rape Boys,” “God Hates Fags,” “You’re Going to Hell,” and “God
Hates You.” Id., slip op. at 8. As Chief Justice Roberts stated:
Speech is powerful. It can stir people to action, move them to tears of
both joy and sorrow, and—as it did here—inflict great pain. On the
facts before us, we cannot react to that pain by punishing the speaker.
As a Nation we have chosen a different course—to protect even hurt-
ful speech on public issues to ensure that we do not stifle public de-
bate.
Id., slip op. at 15.
ferring to a “rat employer,” would raise serious constitu-
tional concerns. See Eliason, supra, slip op. at 13. Like
the handbills in DeBartolo and the banners in Eliason,
the rat balloon and Holly handbill displays must be
viewed as “expressive activity” protected by the First
Amendment. Several courts have held that “the use of a
rat balloon to publicize a labor protest is constitutionally
protected expression within the parameters of the First
Amendment.” Tucker v. City of Fairfield, 398 F.3d 457,
462 (6th Cir. 2005), citing Operating Engineers v. Vil-
lage of Orland Park, 139 F.Supp.2d 950, 958 (N.D. Ill.
2001) (“We easily conclude that a large inflatable rat is
protected, symbolic speech”).12 As for Holly’s handbill
display, DeBartolo has already held that peaceful
handbilling directed at secondary employers is expres-
sive activity which can not be prohibited without running
afoul of the First Amendment.
Last, our dismissal of the complaint is consistent with,
and supported by, the D.C. Circuit’s finding in this case
that the mock funeral display was not unlawful. The
court’s analysis, which we drew upon in Eliason, empha-
sized the absence of any confrontational aspect of the
mock funeral that would support a finding of proscribed
coercion or restraint. As we have discussed, the inflata-
ble rat display and Holly’s display were similarly
nonconfrontational.
The dissent nevertheless contends that the rat display
was “tantamount to picketing” and unlawfully coercive
because it served as a “signal to third parties” that there
was an “invisible picket line that should not be crossed.”
This argument was neither alleged in the complaint nor
argued by the General Counsel, and we reject it in any
event on the merits.13
First, “signals” by protesters to third parties in a sec-
ondary labor dispute are not unlawful unless the third
parties to whom the “signal” is directed are employees of
secondary employers, as opposed to the general public,
and the signal is to cease work. Thus, “signal picketing”
is a term of art which, as we explained in Eliason, in-
volves union agents conveying implicit directions or in-
structions to union members, including employees of a

12 See also State v. DeAngelo, 963 A.2d 1200, 1207 (N.J. 2009)
where the New Jersey Supreme Court found, relying on City of Ladue,
supra, that a union’s display of an inflatable rat as part of a labor dis-
pute at a secondary location is a constitutionally protected “use of non-
verbal eye-catching symbolic speech [that] represents a form of expres-
sion designed to reach a large number of people.”
13 The dissent also cites an alleged threat to picket before the prima-
ry employers began work on the site, but there is no allegation in this
case of an unlawful threat. Even if there was a threat and the threat
used the term “picket” to describe the conduct at issue here, we would
not find that it transformed the nonpicketing protest into picketing, for
the reason we explained above.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1294
secondary employer, that induce the employees to cease
work or refuse to perform services at a secondary em-
ployer’s business. Eliason, supra, 355 NLRB 811, 819.
See also Carpenters Southwest Regional Council Locals
184 & 1498 (New Star), 356 NLRB 616, 618 (2011).
While Section 8(b)(4)(i)(B) is violated where such facts
are proven, “signals” from union agents directed only at
the public or customers of a secondary business, even if
they ask customers to boycott the secondary business, do
not constitute signal picketing, and do not violate Section
8(b)(4)(i)(B).
There is no 8(b)(4)(i)(B) allegation in this case that the
Act was violated by signal picketing, nor does the evi-
dence support such a violation. The Union did not use
the rat display as any form of “signal” to employees of
Brandon or any other employer to cease work.14 Rather,
it was used to symbolize the primary employer WTS as a
“rat contractor” that was undercutting area labor stand-
ards, and the “third parties” to whom this message or
“signal” was sent were members of the public, including
hospital visitors.
Our dissenting colleague asserts that we have miscon-
strued his position and that the rat display was unlawful,
not because it involved signal picketing, but because the
“signal” effect of the display was coercive in the “same
context” that the term was used by Justice Stevens in his
concurring opinion in NLRB v. Retail Store Employees,
Local 1001, 447 U.S. 607, 619 (1980) (Safeco). As ex-
plained above, however, there was no picketing here, in
contrast to Safeco, which involved traditional, ambulato-
ry picketing.15 Furthermore, as is also explained above,
there was no other form of coercion here within the
meaning of the prohibition in Section 8(b)(4)(ii)(B). If
the dissent is not using the word “signal” to suggest that
the rat balloon unlawfully sent a signal to employees of
the secondary employer to strike, we fail to understand
how the rat balloon’s function as a “signal” rendered it
coercive. If the rat balloon sent a “signal” to consumers
that a nonunion contractor was working in the hospital

14 As in Eliason and New Star, there is no evidence in this case that
any employee ceased work as a result of the rat display.
15 In concurring with the Court plurality that the “picketing plainly
violate[d] the statutory ban on the coercion of neutrals,” 447 U.S. at
615, Justice Stevens distinguished handbilling from picketing and ex-
plained that the reason why picketing, but not handbilling, may usually
be prohibited as coercive under Sec. 8(b)(4)(ii)(B) is because the mere
“presence of a picket line” induces action by those coerced by it. Id. at
619 (quoting Bakery Drivers v. Wohl, 315 U.S. 769, 776–777
(1942)(Douglas, J., concurring). Specifically it “calls for an automatic
response to a signal”—the signal being not to cross the picket line. Id.
Here, the rat balloon did not constitute a picket line for the reasons that
we explained above, and, therefore, no person was confronted, as in
Safeco, by a “signal” that could have coerced him or her from “cross-
ing” a picket line.
and that the union considered the contractor to be analo-
gous to a rat, such a signal is lawful. Even if, as the dis-
sent asserts, the Union’s intent in sending such a signal
was to induce consumers “to take the kind of action that
traditional picket lines are intended to evoke”—i.e., not
to patronize the hospital—such a signal is lawful. Such a
signal becomes unlawful only if accompanied by coer-
cion. The dissent labels the rat balloon coercion, but
cites no evidence that anyone entering or exiting the hos-
pital was coerced by the balloon and presents no expla-
nation of why any such person would reasonably have
been so coerced. Labeling the rat balloon a signal does
not supply the missing evidence or explanation.
This conclusion is not altered, as our colleague con-
tends, by the fact that the secondary employer here is a
hospital, whose patients and visitors undoubtedly include
physically and emotionally fragile individuals. As ex-
plained above, we perceive nothing in the location, size
or features of the balloon that was likely to frighten those
entering the hospital, including patients and their fami-
lies. Moreover, given that the Court of Appeals found in
this case that the mock funeral, which included a cos-
tumed “Grim Reaper” and the display of a coffin, could
not “realistically be deemed coercive” even to “someone
visiting a dying relative,” 491 F.3d at 439, the Court
would certainly not sustain a finding that the display of a
rat balloon in similar circumstances coerced anyone.16
The dissent labels the 16-foot tall balloon at issue in
this case a “rat colossi.” It may be that the size of a
symbolic display combined with its location and threat-
ening or frightening features could render it coercive
within the meaning of Section 8(b)(4)(ii)(B), but such
was not the case here.
Conclusion
Applying the analytical framework set forth in
Eliason, we conclude that the display of an inflatable rat
and Holly’s display of a union leaflet did not violate Sec-
tion 8(b)(4)(ii)(B). Accordingly, we reverse the judge’s
findings of violations and dismiss the complaint.
ORDER
The complaint is dismissed.

MEMBER HAYES, dissenting.

16 Our colleague quotes from NLRB v. Baptist Hospital, 442 U.S.
773, 783 fn. 12 (1979), in support of his argument that Sec. 8(b)(4)(ii)
should be applied differently in a hospital setting. But it is important to
note that Baptist Hospital concerned union solicitation by hospital
employees in the sitting rooms and corridors adjacent to patients’
rooms, operating rooms, and other treatment areas. Here, the peaceful,
expressive conduct took place on public property beyond the hospital’s
grounds.
SHEET METAL WORKERS LOCAL 15 (BRANDON MEDICAL CENTER) 1295
Long ago, the administrative law judge presiding over
this case correctly found that the Respondent Union en-
gaged in unlawful secondary boycott activity by its dis-
play of a 16-foot tall, 12-foot wide rat balloon, accom-
panied by union members, near the main vehicle entrance
of a neutral employer—an acute care hospital—and by
posting at another entrance a union agent holding a leaf-
let to his chest like a placard.1 My colleagues now in-
voke and extend their recent decision in Carpenters Lo-
cal 1506 (Eliason & Knuth of Arizona, Inc.)2 to reverse
the judge and further depart from the scope of the sec-
ondary coercion of neutral employers that Congress in-
tended to prohibit through Section 8(b)(4)(ii)(B) of the
Act. As in Eliason & Knuth,3 I dissent.
Relevant Facts and Procedural History
As summarized in the majority opinion, Brandon se-
lected Massey Metals to perform sheet metal work in
connection with an expansion project at the hospital.
Massey, in turn, contracted with a labor supply company,
WTS, for temporary help. The Union objected to the
benefits and labor practices of Massey and WTS, and
engaged in various actions intended to compel Brandon
to cease doing business with them. Specifically, even
before work on the expansion commenced, the Union
threatened “to establish a massive picket line” if Brandon
used nonunion contractors on the project. The Union
subsequently parked a flatbed trailer, loaded with the
giant rat balloon, near the main driveway entrance to
Brandon’s hospital complex. A large banner reading
“Workers Temporary Staffing” was affixed to the rat.
Six or seven union agents stood alongside the trailer with
leaflets. Persons travelling in an eastbound direction to
the hospital driveway entrance by car or foot would have
to pass directly by this protest.4
Union Organizer McIntosh conceded this activity was
“picketing” when he told a Brandon representative that
his goal was to “target” the public and patients and that
“he was there picketing because one of [the hospital’s]
subcontractors was not union or he had some kind of
problem with the sheet metal contractor.” Union Busi-
ness Agent Jeske acknowledged that “among construc-
tion workers, [a] rat is known as being a nonunion con-
tractor.”

1 Sheet Metal Workers Local 15 (Brandon Regional Medical Cen-
ter), 346 NLRB 199, 205–206 (2006), enf. denied in other part sub
nom. Sheet Metal Workers Local 15 v. NLRB, 491 F.3d 429 (D.C. Cir.
2007).
2 355 NLRB 811 (2010).
3 Id. at 25–36 (Members Schaumber and Hayes dissenting).
4 The trailer and rat balloon were stationed 145 feet, or less than 10
car lengths, west of the main hospital driveway entrance. At this point,
drivers preparing to turn into the entrance would already be slowing
their vehicles.
In addition to the rat balloon picketing, union agent
Brendon Holly was posted on two separate occasions at
one of the hospital driveway entrances holding a leaflet
with both hands in front of his chest at the eye level of
drivers in passing vehicles. The leaflet asserted that
there was a “rat” at Brandon, identified the “rat” as WTS,
claimed WTS paid substandard wages and benefits, and
asserted that if this was tolerated it “will undermine the
living standards of our entire community.” The leaflet
included a cartoon of a rat in a patient’s room with a per-
son standing behind the rat sweeping up its droppings.
After Brandon filed unfair labor practice charges with
the Board concerning this conduct, the Union settled the
charges and the conduct ceased—for a few weeks. De-
spite the settlement, however, the Union staged a mock
funeral procession in front of the hospital while distrib-
uting leaflets which asserted that going to Brandon
should not be a “grave affair” and describing medical
malpractice lawsuits filed against the hospital in which a
patient had died. The leaflets did not mention any labor
dispute, but instead stated that they were a “public ser-
vice message” from the Union.
A Board panel unanimously determined that the mock
funeral procession violated Section 8(b)(4)(ii)(B).5 In
light of this disposition, the Board did not reach the issue
of whether the Union also violated the Act by displaying
the inflated rat and by Holly’s conduct described above.
The D.C. Circuit denied enforcement of the Board’s un-
fair labor practice finding as to the mock funeral proces-
sion and remanded the case “for the Board to consider
the issues it did not reach in the Decision and Order.”6
Thus, those issues are now before us for decision.7
Analysis
Section 8(b)(4)(ii)(B) protects neutral employers, em-
ployees, and consumers from “coerced participation in
industrial strife.” NLRB v. Retail Clerks Local 1001
(Safeco), 447 U.S 607, 617–618 (1980) (Blackmun, J,
concurring in part). Its proscription “broadly includes
nonjudicial acts of a compelling or restraining nature,
applied by way of concerted self-help consisting of a
strike, picketing, or other economic retaliation or pres-
sure in the background of a labor dispute.” Carpenters
Kentucky District Council (Wehr Constructors), 308

5 Sheet Metal Workers Local 15, supra at 199–200.
6 Sheet Metal Workers Local 15 v. NLRB, supra at 440.
7 The court’s opinion, while law of the case as to the issues the court
actually considered and decided, does not control the disposition of
these issues, which the court remanded for the Board to consider in the
first instance. NLRB v. Goodless Bros. Electric Co., 285 F.3d 102, 107
(1st Cir. 2002) (stating rule); NLRB v. Can-Am Plumbing, Inc., 340
Fed.Appx. 354 (9th Cir. 2009) (law of the case did not preclude consid-
eration by the Board in first instance of issue not addressed by court of
appeals).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1296
NLRB 1129, 1130 fn. 2 (1992) (internal quotation omit-
ted). cert. denied 341 U.S. 947 (1951). Further, there is
no constitutional barrier to prohibition of such secondary
boycotts and picketing. As summarized in NAACP v.
Claiborne Hardware Co., 458 U.S. 886, 912 (1982),

This Court has recognized the strong governmental in-
terest in certain forms of economic regulation, even
though such regulation may have an incidental effect
on rights of speech and association. See Giboney v.
Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684,
93 L.Ed. 834; NLRB v. Retail Store Employees, 447
U.S. 607, 100 S.Ct. 2372, 65 L.Ed.2d 377. The right of
business entities to “associate” to suppress competition
may be curtailed. National Society of Professional En-
gineers v. United States, 435 U.S. 679, 98 S.Ct. 1355,
55 L.Ed.2d 637. Unfair trade practices may be restrict-
ed. Secondary boycotts and picketing by labor unions
may be prohibited, as part of “Congress' striking of the
delicate balance between union freedom of expression
and the ability of neutral employers, employees, and
consumers to remain free from coerced participation in
industrial strife.” NLRB v. Retail Store Employees, su-
pra, at 617-618, 100 S.Ct., at 2378 (BLACKMUN, J.,
concurring in part). See Longshoremen v. Allied Inter-
national, Inc., 456 U.S. 212, 222-223, and n. 20, 102
S.Ct. 1656, 1662–1663, and n. 20, 72 L.Ed.2d 21.8

Considered in the abstract, or viewed from afar, the
display of a gigantic inflated rat might seem more comi-
cal than coercive. Viewed from nearby, the picture is
altogether different and anything but amusing. For pe-
destrians or occupants of cars passing in the shadow of a
rat balloon, which proclaims the presence of a “rat em-
ployer” and is surrounded by union agents, the message
is unmistakably confrontational and coercive. Indeed,
from a legal standpoint, the rat display merely adds to the
objectively coercive nature of the union demonstration.
By itself, the stationing of union agents in this manner

8 Contrary to the majority, First Amendment cases including the re-
cently decided Snyder v. Phelps, 562 U.S. __ (2011), do not support
their position that the Union’s conduct in this case must be found law-
ful in order to avoid a potential Constitutional conflict. Those cases
involve the question of what content neutral, time, place, and manner
restrictions a state may place on noneconomic political protests. The
distinction between such cases and government regulation of economic
labor disputes was expressly recognized in Claiborne Hardware Co.,
458 U.S. at 913: “While States [and the Federal government] have
broad power to regulate economic activity, we do not find a comparable
right to prohibit peaceful political activity such as that found in the
boycott in this case.” The majority’s argument that this distinction is
inconsistent with DeBartolo Corp. v. Florida Gulf Coast Bldg. Trades
Council, 485 U.S. 568 (1988), should be directed to the Supreme Court,
which apparently failed to perceive any inconsistency. See also NLRB
v. Retail Store Employees Local 1001, 447 U.S. 607 (1980) (Safeco).
proximate to a neutral employer’s main entrance was,
prior to the issuance of Eliason & Knuth, regarded as
picketing even in the absence of ambulation under
longstanding court and Board precedent,9 and as such has
been found coercive and violative of Section
8(b)(4)(ii)(B) when used for the proscribed “cease doing
business objective.”10
Irrespective of any statement by union agents, I agree
with the observation by the General Counsel, both in the
Advice Memorandum recommending issuance of the
complaint in this case and in the posthearing brief to the
judge, that “[t]he union’s use of an inflatable rat, a well
known symbol of labor unrest, is tantamount to picket-
ing.”11 Such displays, now frequent in labor disputes,
constitute a signal to third parties that there is, in essence,
an invisible picket line that should not be crossed. The
union’s intent in sending this signal is to induce those
confronted by the rat and attending union agents to take
the kind of action which traditional picket lines are ex-
pected to evoke. In other words, the predominate charac-
teristic of this union activity is, like picketing, to intimi-
date by conduct, not to persuade by communication.12
Moreover, this conduct took place at an acute care
hospital, where its coercive impact would be magnified
by the relative fragility of the patient and visitor audience
exposed to it. As the Supreme Court has observed,

9 See Laborers Local 389 (Calcon Construction), 287 NLRB 570,
573 (1987), and cases cited there.
10 Id. at 573–574. In order to find a violation of Sec. 8(b)(4)(ii)(B),
there must also be proof that a union has used unlawful coercive means
to achieve the proscribed unlawful cease doing business objective. The
majority does not address whether the conduct at issue in this case had
the proscribed secondary objective of forcing Brandon to cease doing
business with WTS and Massey. For the reasons stated in the judge’s
decision, 346 NLRB at 205, I would find that the testimony of the
Respondent’s witnesses clearly establishes this objective.
11 Sheet Metal Workers International Association, Local 15, 12–
CC–1258, 2003 NLRB GCM LEXIS 62 (April 4, 2003); General
Counsel’s posthearing brief p. 10.
12 Although I refer to the “signal” effect of the rat display, I do so in
the same context as that term was used by Justice Stevens in his con-
curring opinion in Safeco, 447 U.S. at 619, and earlier suggested by
Justice Douglas’ concurring opinion in Bakery & Pastry Drivers &
Helpers Local 801 v. Wohl, 315 U S 769, 819—820 (1942)(“the very
presence of a picket line may induce action of one kind or another,
quite irrespective of the nature of the ideas which are being disseminat-
ed.”) As should be obvious to the majority, signaling in this context
has a different meaning than when used as a term of art in 8(b)(4)(i)(B)
cases involving signals to induce or encourage union members not to
cross picket lines. The majority is simply mistaken in contending that I
rely on a theory of violation under that precedent. I did not do so in the
joint dissent in Eliason & Knuth, (see 355 NLRB 811, 830, at fn. 24),
and I do not do so here.
The majority is similarly mistaken in contending that the General
Counsel has not made the argument set forth here. On the contrary, the
General Counsel’s brief to the judge expressly makes this argument
supra at 819–822.
SHEET METAL WORKERS LOCAL 15 (BRANDON MEDICAL CENTER) 1297
Hospitals, after all, are not factories or mines or assem-
bly plants. They are hospitals, where human ailments
are treated, where patients and relatives alike often are
under emotional strain and worry, where pleasing and
comforting patients are principal facets of the day's ac-
tivity, and where the patient and his family—
irrespective of whether that patient and that family are
labor or management oriented—need a restful, unclut-
tered, relaxing, and helpful atmosphere, rather than one
remindful of the tensions of the marketplace in addition
to the tensions of the sick bed.13

Like the judge, I would also find that Holly’s actions
in holding the leaflet out as a sign visible to drivers in
passing vehicles plainly was picketing. Lumber &
Sawmill Workers Local 2797 (Stolze Land & Lumber),
156 NLRB 388 (1965) (recognizing that picketing occurs
when union posts agent at the approach to place of busi-
ness to accomplish purpose of keeping employees or
customers away). He stood at the entrance to the facility
holding a leaflet like a placard at chest level thrust out for
passers-by to read, despite having been cautioned to
avoid such conduct and to limit himself to traditional
handbilling. That conduct is no less confrontational than
wearing a placard, which the Board has long recognized
to be the equivalent of carrying a picket. Sheet Metal
Workers Local 19 (Delcard Associates), 316 NLRB 426,
437–438 (1995), enfd. in pert. part 154 F.3d 137 (3d Cir.
1998).
In finding this conduct lawful, my colleagues assert
“there is no contention here that the inflatable rat or Hol-
ly’s leaflet display threatened, coerced or restrained the
hospital through violence, blocking ingress or egress or
similar direct disruption of the hospital’s business.”
While accurate, this assertion is beside the point. The
complaint in this case does allege that the Union threat-
ened, restrained, or coerced Brandon by the conduct de-
scribed above. And the well-established meaning of
those statutory terms, prior to the majority’s decision in
Eliason, was that they included the confrontational post-
ing of a union agent at a neutral employer’s premises –
regardless of whether the agent patrolled the site or car-
ried a sign affixed to a stick. Jeddo Coal, supra, at 686

13 NLRB v. Baptist Hospital, 442 U.S. 773, 783 fn. 12 (1979) (inter-
nal quotation omitted):
(“neither patrolling nor patrolling combined with the
carrying of placards are essential elements to a finding of
picketing; rather, the essential feature of picketing is the
posting of individuals at entrances to a place of work.”);
Mine Workers (New Beckley Mining), 304 NLRB 71
(1991), enfd. 977 F.2d 1470 (D.C. Cir. 1992) (picket
signs or placards not essential); Stolze, supra, 156 NLRB
388 (patrolling not essential). As shown, that is precisely
what occurred in this case.14
Only under the re-definition of Section 8(b)(4) au-
thored by the majority in Eliason could it be found that
the disputed conduct here is not picketing, or its coercive
equivalent, simply because there was no carrying of
picket signs combined with “persistent patrolling,” and
was not otherwise coercive because “neither Holly nor
the rat balloon attendants moved, shouted, impeded ac-
cess, or otherwise interfered with the hospital’s opera-
tions.” Moving from giant banners in Eliason to rat co-
lossi mounted on trailers in this case, my colleagues have
quite literally expanded the physical mass that unions
may erect to confront and deter customers from entering
a neutral employer’s premises in order to coerce that
employer to cease doing business with the primary em-
ployer target of a labor dispute. Clearly, these means of
protest owe more to intimidation than persuasion. For
the reasons stated above and in the joint dissent in
Eliason, I disagree that the majority’s restrictive interpre-
tation of the Act’s prohibition of secondary coercion is
compelled by the text of the Act, its legislative history,
and any valid concerns about a conflict with First
Amendment protections. Accordingly, I would find that
the Respondent’s conduct unlawfully coerced Brandon
within the meaning of Section 8(b)(4)(ii)(B).

14 My colleagues cite DeBartolo, supra, in support of their determi-
nation that Holly’s actions were lawful. According to the majority,
“DeBartolo has already held that peaceful handbilling directed at sec-
ondary employers is expressive activity which can not be prohibited
without running afoul of the First Amendment.” Insofar as the majority
suggests that any conduct involving a handbill was held lawful in De-
Bartolo, I respectfully disagree. DeBartolo only addressed whether
Sec. 8(b)(4)(ii)(B) proscribed peacefully “distributing handbills” urging
customers not to patronize a shopping mall’s tenants until the mall
owner promised that all mall construction would be performed only by
contractors that paid “fair wages.” Id. at 570. At issue here, of course,
is not the distribution of handbills by Holly or anyone else, but Holly’s
use of a leaflet as a placard. The Court did not address conduct of this
character in DeBartolo.

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