Global Freedom of Expression

Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York

Closed Expands Expression

Key Details

  • Mode of Expression
    Non-verbal Expression
  • Date of Decision
    October 24, 2014
  • Outcome
    Injunction or Order Denied/Vacated
  • Case Number
    55 F.Supp.3d 381
  • Region & Country
    United States, North America
  • Judicial Body
    First Instance Court
  • Type of Law
    Civil Law
  • Themes
    Freedom of Association and Assembly / Protests, Political Expression

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Case Analysis

Case Summary and Outcome

Members of a district council and a laborers’ union peacefully protested at the work sites of Microtech Contracting Company (Microtech), using a large inflatable rat as part of their protest. The use of the large inflatable rat, in addition to being a protected constitutional right under the First Amendment, was found to be allowable under their collective bargaining agreement (CBA).


Members of the Mason Tenders District Council of Greater New York and of the Asbestos, Lead, and Hazardous Waste Laborers’ Local 78 (Local 78) protested and placed an inflatable rat at sites where Microtech was working. Microtech claimed that the protestors targeted a Microtech supervisor, George Moncayo, whom they wished to have terminated. The protestors did not dispute Microtech’s claims about Moncayo, whom they allegedly targeted because of his previous operation of an affiliated and non-union company.

The relationship between Microtech and the protestors is governed by their  CBA. Under article XI, §1 of the CBA, “‘strikes, walkouts, picketing, work stoppages, slowdowns, boycotts or other disruptive activity of a similar nature at a job site…’” are prohibited. Microtech claimed that the protestors’ actions violated the prohibition on “disruptive activity,” as dictated by the CBA.

Microtech brought this action in July 2014 and sought a temporary restraining order, which would prohibit the protestors from picketing at Microtech. The court held a hearing later that same month and denied Microtech’s motion. Microtech then filed materials with the court to support a motion for preliminary injunction, to which the protestors then filed a memo in opposition. Oral arguments were held in October 2014, but, prior to that, the protestors filed a letter with the court indicating that they had agreed to limit their conduct to the use of the inflatable rat and to refrain from other acts. Microtech submitted a reply responding to the defendant’s opposition.

Decision Overview

District Judge Joseph F. Bianco wrote the opinion in this case. During oral arguments, the protestors admitted that their protests were an attempt to pressure Microtech to terminate Moncayo. Essentially, “the parties have agreed that Local 78 has used, and will continue to use, an inflatable rat in order to protest plaintiff’s continued employment of Moncayo.” The only issue before the United States District Court for the Eastern District of New York was Microtech’s application for injunction, which would prohibit the protestors from using the inflatable rat at Microtech’s work sites. In considering this issue, the Court examined the sub-issue of “whether the inflatable rat is speech protected by the First Amendment.”

The Court debated, as a threshold matter, whether “the defendants’ peaceful use of a stationary, inflatable rat to publicize a labor protest is protected by the First Amendment.” The Court considered many cases in making its decision on this threshold manner, including Int’l Union of Operating Engineers, Local 150 v. Orland Park, in which the court stated, “We easily conclude that a large inflatable rat is protected, symbolic speech.” Microtech argued that, in the CBA, Local 78 had bargained away the First Amendment rights of the union to use this inflatable rat to protest. The Court determined that the “no strike” provision’s unambiguous language did not prohibit the protestors’ peaceful use of an inflatable rat.

As another threshold matter in this case, the Court considered its jurisdiction over issuing injunctions in labor disputes. The Court determined that it did not have jurisdiction because the Norris-LaGuardia Act (NLGA) deprived the Court of jurisdiction over labor disputes. Even if the Court were not barred by the NLGA from issuing an injunction, Microtech’s motion would not be granted because the act of protesting by using an inflatable rat did not breach the CBA’s plain language. Accordingly, the Court denied the Microtech’s motion for preliminary injunction.

Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Expands Expression

The United States District Court for the Eastern District of New York relied on precedent and upheld the protestors’ First Amendment right.

Global Perspective

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Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

National standards, law or jurisprudence

  • U.S., Tucker v. Fairfield, 398 F.3d 457 (6th Cir. 2005)
  • U.S., Int’l Union of Operating Engineers, Local 150 v. Orland Park, 139 F. Supp. 2d 950 (N.D. Ill. 2001)
  • U.S., Betal Environmental Corp. v. Local Union 78, 162 F. Supp. 2d 246 (S.D.N.Y. 2001)
  • U.S., W2005 Wyn Hotels v. Asbestos, 2012 U.S. Dist. LEXIS 39318 (S.D.N.Y. 2012)

Case Significance

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Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

Official Case Documents

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