District Court Denies Injunction to Microtech Contracting Corporation; Union Can Continue to Post Inflatable Rat at Job Sites

On October 24, 2014, the District Court for the Eastern District of New York denied plaintiff Microtech Contracting Corp.’s request for an injunction prohibiting members of Local 78 from “‘[p]icketing, distributing handbills or flyers and/or posting an inflatable rat or similar sign or device at any job site’ where Microtech is working.” Microtech, an asbestos abatement company, argued that all of these activities violated the terms of the operative collective bargaining agreement (CBA).

The court decisively rejected most of the plaintiff’s case, finding (first) that it lacked jurisdiction to issue the injunction under the Norris-LaGuardia Act (NLGA) because the issue being protested–the continued employment of a certain manager–was “unrelated to the terms of the CBA,” and (second) that, with respect to the narrow question about the use of the inflatable rat, the only question remaining for the court to consider, the plaintiff could not show a likelihood of success on the merits.

Noting that Local 78 has a “constitutional right to use an inflatable rat to publicize a labor dispute,” the court determined that the central question at issue was whether this constitutional right was outweighed by the clause of the CBA in which the union agreed not to engage in “disruptive activity.” However, the court further noted, this same provision of the CBA, the “disruptive activity clause,” refers to activities such as “strikes, walkouts, picketing, work stoppages, slowdowns, or boycotts,” but the use of the inflatable rat does not involve any of these disruptive activities. The rat is disruptive, at most, in that Microtech’s business clients react negatively to it, but even if true this would not be the kind of disruption specified in the CBA.

In fact, the court found that the union had used the inflatable rat to protest Mictrotech’s continued employment of one manager, but not to protest any violation by the company of the terms of the contract. “Defendants’ views about Moncayo do not concern the interpretation or application of any term of the CBA,” so “…the NLGA prohibits the requested injunction.” In addition, §104 of the NLGA “prohibits federal courts from issuing an injunctive order that prohibits any person from ‘[g]iving publicity to the existence of, or the facts involved in, any labor disupte, whether by advertising, speaking, patrolling, or by any other method not involving fraud or violence.” In this case, the court concludes, “the inflatable rat is clearly intended to publicize the existence of defendants’ dispute with plaintiff, which the parties agree is a labor dispute within the meaning of the statute.”

The court found that it could only grant the requested injunction against the union if it had been shown that the use of the inflatable rat violated some part of the CBA, and even if the plaintiff had succeeded in making such an argument the NLGA almost certainly would still have required the court to find for the defendant in this case. The lesson: except under very specific circumstances, it is unlawful for an employer to stop employees from staging demonstrations–even extremely visible demonstrations, and even when those demonstrations are at their work site.

If you believe your employer has violated your right to engage in labor action, please contact The Harman Firm, LLP.