• A Sign of Changes to Come: NLRB's New Majority Rules Union "Bannering" Lawful
  • September 8, 2010 | Authors: Howard M. Bloom; Roger S. Kaplan; Philip B. Rosen
  • Law Firms: Jackson Lewis LLP - Boston Office ; Jackson Lewis LLP - Melville Office ; Jackson Lewis LLP - New York Office
  • Predictions that the newly constituted National Labor Relations Board will be inclined to issue pro-labor decisions have begun to come true. In what appears to be its first substantive determination on the merits of a major dispute, the Democrat-controlled Labor Board on September 2, 2010, announced its decisions in three cases (Eliason & Knuth of Arizona, Inc., Northwest Medical Center, and RA Tempe Corp.), holding that “bannering” by a union (holding a large banner in place at or near a neutral employer’s establishment urging the public not to patronize that employer because of the union’s dispute with a primary employer doing business with the neutral or its affiliate) does not violate the National Labor Relations Act.

    NLRA on Secondary Boycott
    Section 8(b)(4)(ii)(B) of the National Labor Relations Act prohibits conduct found to “threaten, coerce, or restrain, a secondary employer not directly involved in a primary labor dispute if the object of that conduct is to cause the secondary to cease doing business with the primary employer.”

    The Labor Board had previously decided that, under this “secondary boycott” section of the Act, picketing for a consumer boycott of a secondary employer is coercive, and therefore unlawful, whereas stationary handbilling with that same object is not, and is therefore lawful.
    In the three cases at issue, the question before the Labor Board was whether bannering was more like picketing (and therefore unlawful) or stationary handbilling (and thus lawful).

    The Facts
    The same union was in all three cases.  The Union was involved in primary labor disputes with four construction employers (the primary employers) whom the Union alleged did not pay their employees area standard wages and benefits.  In furtherance of its disputes with the primary employers, who performed work for the secondary employers or related firms, the Union engaged in peaceful protests at the sites of the secondary employers:  Thunderbird Medical Center, Northwest Medical Center, and RA Tempe Restaurant, with whom the Union had no dispute.

    At each of the three locations, the Union placed a banner outside of the secondary employer’s facility, facing toward the street.  (The banners were three or four feet high and from fifteen to twenty feet long.)  At the Thunderbird and Northwest Medical Centers, the banners read, “SHAME ON [the name of the secondary employer],” and “Labor Dispute” on either side of that message.  At RA Tempe, the middle section of the banner read, “DON’T EAT 'RA’ SUSHI.”  (At each location, two or three Union representatives held the banner.  They did not patrol with the banner.)

    Board’s Decision
    The NLRB’s General Counsel and the secondary employers alleged that the Union’s banners violated Section 8(b)(4)(ii)(B) of the National Labor Relations Act because they constituted coercive conduct that had an object of forcing the neutral employers to cease doing business with the primary employers.  However, in a three-to-two vote, the Labor Board found that the bannering was like stationary handbilling and, therefore, was lawful.  It concluded that absent “confrontational” conduct, such as patrolling with picket signs in front of a neutral employer’s entrance creating a real or symbolic barrier to entry, a violation finding might unnecessarily raise a First Amendment issue of freedom of expression under the NLRA.