Posted: November 23, 2014

Inflatable Rat Not Subject to a Preliminary Injunction

In Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York, et al., 14 CV 4179 (EDNY, Oct. 24, 2014), Judge Joseph F. Bianco denied plaintiff’s motion for a preliminary injunction prohibiting defendants from displaying an inflatable rat in front of plaintiff’s job sites.

Because the labor dispute related to the unions’ objection to plaintiff’s employment of a particular individual, it was unrelated to the terms of the Collective Bargaining Agreement and not an issue subject to the CBA mandatory grievance clause, the district court did not have jurisdiction to enter a preliminary injunction under the Norris-LaGuardia Act (“NLGA”). The NLGA deprives federal courts of jurisdiction to enter injunctions “involving or growing out of a labor dispute” with limited exceptions not present here. The CBA included an express prohibition against “strikes, walkouts, picketing, work stoppages, slowdowns, boycotts or other disruptive activity of a similar nature at a job site.” The defendants used the inflatable rat in order to protest the employment of a particular individual and not because the union believed Microtech violated its contract. Thus, there was no issue subject to grievance and no exception to the anti-injunction act. The NLGA provision prohibiting the federal courts from barring anyone from publicizing the existence of or facts involved in any labor dispute also precluded an injunction. By placing the inflatable rat at plaintiff’s worksites, the union intended to publicize its dispute with plaintiff.

Even if the NLGA did not prohibit the injunction, plaintiff would not have met the preliminary injunction standard. First, “the defendants’ peaceful use of a stationary, inflatable rate to publicize a labor protest is protected by the First Amendment.” Slip op. 7. Second, displaying the inflatable rat did not fall under the definition of “disruptive activity” in the “no-strike” provision of the CBA. “Disruptive activity” under the CBA “are actions that create work stoppages or slowdowns, the phrase ‘disruptive activity of a similar nature’ [in the CBA] clearly only applies to activities that have a similar effect upon labor” as a strike, walkout or picket line. Slip op. 8. Judge Bianco observed that while the inflatable rat may have had an effect on plaintiff’s business, there was no allegation that it had any effect on its labor force or work at job sites. Because there was no breach of any contractual provision, plaintiff could not show a substantial likelihood of success on the merits or sufficiently serious question on the merits making them a fair ground for litigation.

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