Wyatt Employment Law Report

The NLRB Rules “Bannering” Is Not Picketing or Otherwise Conduct Violative of Section 8(b)(4)(ii)(B) of the NLRA

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By Edwin S. Hopson

In United Brotherhood of Carpenters Local 1506 (Eliason & Knuth of Arizona),, 355 NLRB No. 159 (2010), the National Labor Relations Board held that “bannering” by a union at locations associated with secondary employers did not constitute picketing nor was it sufficiently akin to picketing to constitute a threat or coercion within the meaning of Section 8(b)(4)(ii)(B) – secondary boycott provisions of the National Labor Relations Act.

 The union had an on-going labor dispute with four construction contractors.  In support of its efforts the union engaged in peaceful protests at three secondary sites where the contractors were performing work by displaying banners. The banners were 3 or 4 feet high and from 15 to 20 feet long and contained such statements as: “SHAME ON [secondary employer]” in large letters, flanked on either side by “Labor Dispute” in smaller letters, and “DON’T EAT ‘RA’ SUSHI.” The banners were placed between 15 and 1,050 feet from the nearest entrance to the secondary employers’ establishments. The banners utilized by the union were held stationary on a public sidewalk or right-of-way and no one patrolled or carried picket signs.  In addition, none of the union’s supporters interfered with egress or ingress at the secondary employers’ place of business.  Unfair labor practice charges were filed against the union and the NLRB’s regional director issued a complaint alleging that the respondent union engaged in and was engaging in unfair labor practices in violation of Section 8(b)(4)(ii)(B) of the Act.

 In its August 27, 2010, decision dismissing the complaint against the union, Chairman Liebman, Members Becker and Pearce, with Members Schaumber and Hayes dissenting, noted that the case presented an issue of first impression for the Board.  The majority framed the issue as:  “does a union violate Section 8(b)(4)(ii)(B) of the National Labor Relations Act when, at a secondary 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.” The majority answered in the negative.

 Chairman Liebman, and Members Becker and Pearce noted that the language of the Act and its legislative history did not suggest that Congress intended Section 8(b)(4)(ii)(B) to prohibit the peaceful stationary display of a banner.  Additionally, their review of prior precedent found that “nonconfrontational” displays of stationary banners were not comparable to traditional picketing and other activities found to be unlawful.  It also was pointed out that the NLRB’s General Counsel had previously unsuccessfully sought Section 10(l) injunctive relief in the federal district courts in four cases involving display of banners. See Overstreet v. Carpenters Local 1506, 409 F.3d 1199 (9th Cir. 2005), affirming Overstreet v. Carpenters Local 1506, 2003 WL 23845186, U.S. Dist. Lexis 19854 (S.D. Cal. 2003); Gold v. Mid-Atlantic Regional Council of Carpenters, 407 F.Supp.2d 719 (D. Md. 2005); Benson v. Carpenters Locals 184 & 1498, 337 F.Supp.2d 1275 (D. Utah 2004); Kohn v. Southwest Regional Council of Carpenters, 289 F.Supp.2d 1155 (C.D. Cal. 2003).  Finally, the majority felt it their obligation to avoid construing the Act in a manner that would create a serious constitutional question under the First Amendment, citing Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U.S. 568, 577 (1988).  They specifically find the banners to be protected speech under the First Amendment.

 In reaching its decision, the majority pointed out that the U.S. Supreme Court in a number of decisions held that Section 8(b)(4) was not intended to prohibit all union activity aimed at secondary employers.  For instance, the DeBartolo Court held that the distribution of handbills urging customers not to patronize a secondary establishment with the object of inducing that secondary employer to cease doing business with the primary employer is not unlawful.  The Board majority also examined the statutory text of Section 8(b)(4) and concluded that there was no conduct even alleged that rose to the level of coercion or restraint such as through violence, intimidation or similar activities by the union.  Finally, they turned to the legislative history and found nothing to support the contention that peaceful bannering of secondary employers meant to be prohibited.  Countering the General Counsel’s argument that bannering was tantamount to picketing, the majority rejected the contention noting that “the combination of carrying of picket signs and persistent patrolling of the picketers back and forth in front of an entrance to a work site, creating a physical or, at least, a symbolic confrontation between the picketers and those entering the worksite” is why picketing was the object of Section 8(b)(4) as contrasted with other, less confrontational activity. They also rejected the argument that the bannering was “signal picketing” – that is a “signal” to other union members not to cross into or on to the secondary’s premises – since the bannering in question was aimed at the public, not other union members.

 In dissent, Members Schaumber and Hayes argued that union, as part of its long-running campaign to enmesh secondary property owners in its labor dispute with specific nonunion contractors, had utilized “a creative variation on classic picketing: the display of large, stationary banners at the premises of the neutrals.” They went on to note that, “[t]hese banners, held aloft by union agents, misleadingly accuse the neutral employer of having a labor dispute with the union.”  The dissenters also contended that since it was clear that had the banners been affixed to pickets who had been walking or ambulatory rather than stationary it would have been a violation, the majority’s attempt to distinguish bannering from such clearly proscribed activity was unpersuasive.

 The dissenting Members stated that there was no dispute that the union’s bannering was in furtherance of its efforts to convince the secondary employers to cease doing business with the primary employers since the union had already sent letters to the secondary employers asking them not to do business with the primary employers.  That, taken together with the bannering activity and presence of union agents, they felt was sufficient to establish a violation of Section 8(b)(4)(ii)(B).

 Two companion bannering cases, Carpenters Locals 184 and 1498 (Grayhawk Development, Inc.), 355 NLRB No. 188 (2010) and Carpenters Local 1506 (AGC San Diego Chapter), 355 NLRB No. 191 (2010) issued on September 21, 2010, and September 22, 2010, respectively, with the same result.

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