NLRB REWRITES LABOR LAW BY PERMITTING UNION ‘BANNERING’ DIRECTED AGAINST NEUTRAL EMPLOYERS
On August 27, 2010, the National Labor Relations Board (NLRB) ruled that a long-standing union tactic of displaying very large stationary banners at a secondary or neutral employer’s business does not violate federal labor law. The NLRB’s decision, made public on September 2, 2010, covers three Arizona cases* in which union carpenters displayed very large banners near three separate establishments --- two medical centers (Banner Medical and Northwest Medical) and a restaurant (RA Tempe) --- to protest contract work performed for the owners of these establishments by non-union construction contractors that the union claimed paid below union scale. In a sharply divided 3-2 opinion (split by political party lines), the NLRB essentially found that the labor union’s displays outside the neutral employers’ respective businesses did not violate Section 8(b)(4)(ii)(B) of the National Labor Relations Act (NLRA). Section 8(b)(4)(ii)(B) states, in pertinent part, that it shall be an unfair labor practice for a labor organization or its agents:
- to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where an object thereof is…forcing or requiring any person to cease doing business with any other person….
The facts
The union displayed very large banners held by three to four union agents at the premises owned and/or maintained by three different neutral employers (Banner Medical, Northwest Hospital and RA Tempe). One banner, measured at 16 feet by 3 feet, declared “SHAME ON BANNER THUNDERBIRD MEDICAL CENTER” and was flanked by the words “LABOR DISPUTE.” The banner was erected on a public sidewalk in front of Banner Medical’s parking lot and 510 feet from the medical center’s front entrance. Another banner declared “SHAME ON NORTHWEST MEDICAL CENTER” with the words “LABOR DISPUTE” flanked on both sides. The union erected two of these banners measured at 20 feet by 3 feet and placed them a few hundred feet from the hospital’s front entrance and vehicle entrance. The third banner measured at 15 feet by 3 feet, read “DON’T EAT RA SUSHI.” This banner was displayed a mere 15 feet from the restaurant’s front entrance. Again, the words “LABOR DISPUTE” were also included on the display.
At no time did the union have any dispute with these employers’ labor practices with their own employees. Additionally, evidence revealed that no work was actually being performed by any of the non-union contractors at the Northwest Hospital or RA Tempe locations.
The majority decision
Ultimately, the majority declared that a union does not violate Section 8(b)(4)(ii)(B) when, at a neutral employer’s business, its agents display a large stationary banner announcing a “labor dispute” and seeking to elicit “shame on” the employer or persuade customers not to patronize the employer. In essence, the majority agreed with the union’s contentions that although picketing directed against a neutral party would be unlawful coercive activity under Section 8(b)(4)(ii)(B), ‘bannering’ directed against a neutral should be considered pure speech protected by the First Amendment. After all, as the majority found, “[b]anners are not picket signs.”
The dissent
Members Peter Schaumber and Brian Hayes wrote a scathing dissent. The minority Members decried their counterparts’ opinion. The dissent explained that by the majority’s logic, a Section 8(b)(4)(ii)(B) violation now requires that “non-traditional picketing” directed against a neutral must directly cause or reasonably could be expected to directly cause a disruption of the neutral employer’s operations. As the minority stated… “This new standard substantially augments union power, upsets the balance Congress sought to achieve, and, at a time of enormous economic distress and uncertainty, invites a dramatic increase in secondary boycott activity.”
Conclusion
In short, the majority’s decision provides that so long as labor unions are not patrolling and carrying picket signs, they should have the freedom to pressure neutral employers by displaying confrontational banners in front of the employer's office, facility, or place of business. With the new narrow definition of “picketing” and the new requirement for showing actual or threatened disruption upon a neutral employer’s operations, there is no doubt that big labor will use this decision to their fullest advantage to pressure neutral employers from engaging non-union contractors. ‘Bannering’ will become a routine practice as long as this decision is in effect. Employers impacted by this practice should consult with labor counsel for creative ways on how to respond to the appearance of a banner, and what may be accomplished prior to the presence of an actual banner at one’s front door.
*The cases are Eliason & Knuth of Arizona, Inc., 28-CC-955; Northwest Medical Center, 28-CC-956; and RA Tempe Corporation, 28-CC-957. The local union in all three instances is the United Brotherhood of Carpenters and Joiners of America, Local Union No. 1506. See 355 NLRB 159. To view the decision, please click here.
This alert was written by Jeffrey Risch.