Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
The National Labor Relations Board on August 27, 2010, issued its long-awaited decision in a trio of cases involving the use of stationary banners by unions to advertise secondary boycott activity to the public. In a 3-2 decision split along partisan lines, the Board majority (Chairman Liebman and Members Becker and Pearce) concluded that bannering, when conducted peaceably and independent of other, possibly coercive, conduct, does not violate Section 8(b)(4)(ii)(B) of the National Labor Relations Act ( the “Act”). The decision in United Brotherhood of Carpenters and Joiners of America, Local Union No. 1506, 355 NLRB No. 159 (2010) has the practical effect of broadening the arsenal of weapons organized labor can bring to bear to force a primary employer in a labor dispute to yield to union demands. As a result, the decision may signal an increase in the frequency of secondary boycott activity and the embroiling of neutral employers in labor disputes not of their own making.
The underlying unfair labor practice charges all arose in 2003, when the Carpenters Union was engaged in a campaign aimed at a number of Arizona construction employers that, according to the union, were not providing pay and benefits to their employees in accord with area standards. In each instance, the union set up a large stationary banner at a location operated by a secondary employer that had a business relationship with the targeted primary employer. In only one instance was the primary employer present and performing work at the location where the union displayed its banner. In two cases, the banner contained the message “SHAME ON [SECONDARY EMPLOYER]”, and in the third, the banner read “DON’T EAT [SECONDARY EMPLOYER] SUSHI.” In all instances, the central message was flanked on both sides by the words “Labor Dispute” in smaller letters. Between two and four union representatives held the stationary banner on a sidewalk or right-of-way in a manner that did not block the flow of traffic. While holding the banner, the union representatives also offered handbills to passers-by, explaining that the labor dispute was with the primary employer and that the union believed that the secondary employers’ business relationships with the primary employers contributed to undermining area standards. The union representatives did not chant, yell, march, or engage in similar activities.
The Board ruled that the conduct at issue was noncoercive and did not violate the Act. In crafting its ruling, the Board majority emphasized that it is constrained “to seek to avoid construing the Act in a manner that would create a serious constitutional question,” and added that government “regulation of nonviolent speech – such as the display of stationary banners – implicates the core protections of the First Amendment.” In light of those constraints, the majority framed the issue in the following terms:
The crucial question here, therefore, is whether the display of a stationary banner must be held to violate Section 8(b)(4)(ii)(B) or, instead, “whether there is another interpretation, not raising these serious constitutional concerns, that may be fairly ascribed to” the statutory provision.
(Emphasis in original.) (Citing Edward J. DeBartolo Corp. v. Florida Gulf Coast Building and Construction Trades Council, 485 U.S. 568, 577 (1988).) The majority concluded that nothing in the legislative history or the language of the Act itself requires the Board to find the display of a banner aimed at a neutral employer to constitute a violation of the Act. As such, the majority concluded that bannering is, like handbilling, noncoercive conduct that falls outside of the Act’s proscription against certain types of secondary boycott activity.
Dissenting, Members Schaumber and Hayes took issue with the majority’s reliance on “a strained definition of statutory language, and selective and ambiguous excerpts from the legislative history” to reach its conclusion. They further criticized the majority for failing to constrain their decision to the facts of the case presented, accusing the majority of “capitaliz[ing] on the opportunity to narrowly circumscribe the Board’s historically expansive definition of ‘picketing’,” while simultaneously increasing the burden on employers seeking to challenge secondary activity under Section 8(b)(4)(ii)(B). According to the dissent, the majority’s decision “invites a dramatic increase in secondary boycott activity.”
The decision signals a break in the log-jam of bannering cases that have been sitting before the Board for a number of years now. In a press release (pdf) issued September 2, the Board indicates that there are at least ten additional bannering cases currently pending before the Board.
Photo credit: Wissmann Design