NLRB Holds Bannering of Secondary Employers Lawful

In a long-awaited decision, the National Labor Relations Board held that a union’s display of a peaceful stationary banner at the location of an employer with whom it had no dispute did not violate the secondary boycott provisions of the National Labor Relations Act. Likening such activity to the mere distribution of handbills that was found lawful by the U.S. Supreme Court in its 1988 decision in Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. Trades, the Board concluded that the bannering merely attempted to “persuade” members of the public to assist it in its objectives, and not to “coerce” or “restrain” anyone in violation of the law.

The case involved efforts by the Carpenters Union in Arizona to publicize its disputes with three construction contractors by stationing banners outside of three hospitals on which they had performed work. The banners were between 3 and 4 feet high and 15 to 20 feet long, and bore the words “SHAME ON” followed by the name of the hospital and “Labor Dispute” on each of them. While two or three people held the banner, others distributed handbills explaining that the union’s dispute was with the non-union contractors and that by using their services the hospitals were “contributing to the undermining of area labor standards.”

In a split decision supported by only three of the agency’s five members, the Board found that this activity did not constitute the same kind of “confrontational conduct” that picketing normally does, and that most passing motorists and others to whom it was directed would not feel intimidated by the banners. The majority noted that the banner holders did not move, shout, impede access, or otherwise interfere with the secondary employers’ (i.e., the hospitals’) operations, and “did not engage in any other activity that is considered confrontational within the context” of the dispute. Accordingly, while a complaint alleging a violation of the secondary boycott laws was dismissed in that case, union bannering activity which becomes confrontational can presumably still be challenged as unlawful in the future. (Carpenters Local 1506 and Eliason & Knuth of Arizona, Inc., 355 NLRB No. 159)

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