Court Declines to Enjoin Unions' Rat Display; ‘Disruptive Activity' Ban Only Covered Strikes

Daily Labor Report® is the objective resource the nation’s foremost labor and employment professionals read and rely on, providing reliable, analytical coverage of top labor and employment...

By Lawrence E. Dubé

Oct. 27 — An asbestos abatement contractor could not obtain an injunction to prohibit union agents from stationing an inflatable rat at its job sites despite a union pledge to refrain from “disruptive activity” for the duration of a collective bargaining agreement, a federal district court in New York ruled Oct. 27.

Judge Joseph F. Bianco of the U.S. District Court for the Eastern District of New York held the Norris-LaGuardia Act prevented him from granting Microtech Contracting Corp. a preliminary injunction against the Mason Tenders District Council of Greater New York and a Laborers' International Union of North America local. Microtech alleged the unions were violating the local's collective bargaining agreement in a protest over the company's hiring of an individual, but Bianco said he had no jurisdiction to grant injunctive relief.

The court said the Norris-LaGuardia Act prohibited his intervention in the labor dispute, but he also found that the disruption rule cited by Microtech was intended only to prohibit strikes, stoppages, and picketing.

Employer Claims Contract Breach

According to the decision and court records, Microtech is a signatory to a multiemployer collective bargaining agreement with Hazardous Waste Laborers' Local 78. The contract, which is in effect from December 2012 to July 2015, 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 during the terms of this Agreement.”

Microtech filed a lawsuit in July alleging that Local 78 and the district council had disrupted its business by stationing a large inflatable rat at the company's work sites.

Microtech alleged that the union protest followed its hiring of George Moncayo, an individual who had been a non-union contractor, and the union conceded during court proceedings that its protest activities are designed to force Microtech to discharge Moncayo.

Court Cites Norris-LaGuardia Limits

The court said that even if Microtech could show that its business was affected by the presence of the inflatable rat, there were several reasons he could not issue the requested injunction.

The Norris-LaGuardia Act, 29 U.S.C. § 101, provides “No court of the United States, as defined in this chapter, shall have jurisdiction to issue any restraining order or temporary or permanent injunction in a case involving or growing out of a labor dispute, except in a strict conformity with the provisions of this chapter.”

Bianco said the U.S. Supreme Court has permitted enjoining a strike over an issue subject to mandatory arbitration under a collective bargaining agreement, but hiring Moncayo was not such an issue. Because Local 78 could not protest Moncayo's presence through a grievance, the court said, he could not issue an injunction prohibiting its protest.

Disruption Ban Linked to Strikes, Similar Acts

The court also said that Microtech was not likely to succeed on the merits of its claim that the union protests violated the collective bargaining agreement.

“[T]here is no allegation that the use of the rat has any impact on labor at the job site,” Judge Bianco said, and granting Microtech's request for a preliminary injunction would “prohibit the union from engaging in any speech that is harmful to plaintiff's business image.”

The “disruptive activity” ban in the union contract was qualified by the phrase “of a similar nature,” Bianco said. Both terms appeared in a no-strike clause, and the court said it was evident that any disruption prohibited by the clause had to be activity that had an effect similar to a strike or work stoppage. In Microtech's case, the court said, “there is no allegation that the use of the rat has any impact on labor at the job site.”

Denying Microtech's request for a preliminary injunction, Bianco said “To hold otherwise would be to prohibit the union from engaging in any speech that is harmful to plaintiff's business image.”

Bisceglie & Associates PC represented Microtech. Cohen, Weiss and Simon LLP represented the unions. Haluk Savci also represented the district council.

To contact the reporter on this story: Lawrence E. Dubé in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

Text of the opinion is available at .