The Employer brought sought against the Union and sought a preliminary injunction. The Court refused to issue the injunction and held that use of the inflatable rat did not violate the “no strike” provision of the collective bargaining agreement (the “CBA”) between a contractor’s association and the Union; the employer is a member of that association and is bound by the terms of the CBA.
In refusing to grant the injunction, the Court held that the Norris-LaGuardia Act of 1932 deprives federal courts of jurisdiction to issue restraining orders or injunctions in cases involving or growing out of labor disputes, except where the strike violates an express or implied promise not to strike, and where the underlying issue is arbitrable. The Court held further that preventing the Union from using the inflatable rat would violate the Union’s First Amendment right to free speech.
The “no strike” provision contained in the CBA prohibits “strikes, walkouts, picketing, work stoppages, slowdowns, boycotts or other disruptive activity of a similar nature at a job site of or otherwise directed at, any employer [emphasis added].” Although the Court stated that First Amendment rights can be surrendered in a CBA or some other contractual agreement, it held that the Union did not waive those rights in this case.
The Court held that use of the inflatable rat did not constitute “disruptive activity” because that term is qualified by the words “of a similar nature.” In the Court’s view, that qualification refers to activities similar to strikes, walkouts, picketing, work stoppages, slowdowns, or boycotts, but not to the use of an inflatable rat to publicize or otherwise broadcast objections to an employer’s business practices. It appears that if the words “of a similar nature” were not contained in the clause, then use of the rat may have been prohibited as violative of the CBA. Interestingly, the Court stated that even if use of the rat was prohibited by the “no strike” provision, the dispute was not subject to the grievance clauses in the CBA because it did not involve an "interpretation and application" of the agreement. Rather, it involved the Union's objections to the Employer's hiring of a supervisor with a non-union history.
While there is room for disagreement with the Court’s Decision, perhaps the Employer should consider use of an inflatable “cat” on its jobsites which stands much taller than the Union’s inflatable rat. After all, free speech is free speech.