The world of labor relations is often rough-and-tumble, but the National Labor Relations Board has imposed some rules on the conduct of labor unions to enforce federal labor law’s prohibition on certain types of “secondary activity” that would cause a third party to cease doing business with an employer with whom it has a labor dispute. Those rules shifted recently when the Board approved the use by a union of a 16-foot tall rat balloon in front of a hospital to persuade it to cease doing business with nonunion contractors performing work on a hospital addition. The case is Sheet Metal Workers Local 15 (Galencare Inc. d/b/a Brandon Regional Medical Center), 356 NLRB No. 162 (May 26, 2011). NLRB Chair Wilma B. Liebman and Members Craig Becker and Mark Gaston Pierce held that there was no violation of the National Labor Relations Act; Member Brian Hayes dissented.
Under the National Labor Relations Act (NLRA), unions may not picket or engage in certain other forms of “secondary activity” or “secondary boycotts” directed at neutral parties who are not directly involved in a labor dispute for the purpose of causing them to “cease doing business” with an employer with whom the Union has a dispute. Specifically, section 8(b)(4)(ii)(B) of the statute prohibits “secondary picketing,” which requires as an element that the union “threaten, coerce, or restrain” any person to “cease doing business” with any other person. In general, picketing entails carrying signs and marching or walking at or near a work site or premises of the neutral party.
Recently, the NLRB has approved a new form of communication known as “bannering,” which is the peaceful use of a large banner or poster held in a stationary position to indicate the existence of a labor dispute. That decision was issued last year in the case of Carpenters & Joiners of America (Eliason & Knuth of Arizona Inc.), 335 NLRB No. 159 (Sept. 2, 2010). In that case, the Board held that the nonconfrontational display of stationary banners differed from picketing in that it did not “threaten, coerce, or restrain” a neutral party in violation of the Act.
Not every form of public demonstration by a union, however, constitutes picketing. In contrast to picketing, other forms of activity at a neutral’s work site or property, including handbilling, which is merely the peaceful distribution of literature, and which does not by its words ask third parties to cease doing business with the employer, are forms of protected speech under the NLRA and the First Amendment to the U.S. Constitution. And, unions may lawfully make peaceful appeals to the public at large to express their support for such matters as work preservation and “area standards” wages and benefits. As the U.S. Supreme Court has articulated, the test is whether the union’s activity constitutes “intimidation or persuasion.”
In the Galencare case, the Board’s majority held that the Union’s primary labor dispute was with the general contractor and subcontractors, and that the rat balloon and a sign bearing the name of the nonunion sheet-metal contractor and a temporary staffing Company that provided employees to the subcontractor, was permissible. The rat balloon was mounted on a trailer stationed approximately 150 feet from one vehicle entrance to the hospital and 170 feet from another entrance. The balloon was located about 100 feet from the main entrance of the hospital.
Union members also stood near the trailer at the vehicle entrances and distributed leaflets that said, “there’s a ‘rat’ at Brandon Regional Hospital.” These leaflets identified the staffing Company as a “rat employer.” The leaflets also claimed that the staffing Company undermined the “wages, benefits and other working conditions established by our local labor agreement.” One of the union leafletters stood near the hospital’s entrance for vehicles and held the leaflets out with two arms, directed at motorists entering into and exiting the hospital parking lot. The General Counsel of the NLRB, who prosecutes unfair labor practices, contended that the unions’ use of the rat display and the use of the leaflet like a placard were akin to picketing and violated section 8(b)(4) of the statute because they were intended to pressure the hospital to cease doing business with the contractor and the staffing Company.
In an earlier decision in 2006, the Board held that another tactic by the union – holding a mock funeral in front of the hospital – violated the Act’s prohibitions against secondary activities. However, on appeal to the U.S. Court of Appeals for the District of Columbia, the court refused to enforce the Board’s order and remanded the case, finding that the mock funeral did not constitute picketing. The rat balloon and leaflet display were not ruled upon by the Board in its earlier decision, so those activities were reviewed after the case was sent back by the Court of Appeals.
This time, a different Board majority held that none of the activities violated the Act. Relying upon its recent decision in Eliason, which held that peaceful “bannering” at a neutral employer’s location did not violate the Act because it was not picketing and did not constitute coercion of the neutral employer, the Board majority applied its new rule and found no violation of the statute.
The Board noted that some of its past decisions had taken a more expansive view of what constituted picketing. It reviewed its past cases that found “signal picketing,” which is an activity “that involves union agents conveying implicit directions or instructions to union members including employees of a secondary employer, that induce the employees to cease work or refuse to perform services at a secondary employer.” Nevertheless, the Board distinguished those cases on the basis that often there were union officials or agents present who engaged in other forms of intimidating conduct and that, in this case, there was no signal to other employees to cease work. In sum, the Board held that the rat balloon and the handbills were forms of “expressive activity” protected by the First Amendment.
In dissent, Member Hayes wrote that “in the abstract, or viewed from afar, the display of a gigantic inflatable rat might seem more comical than coercive. Viewed from nearby, the picture is altogether different and anything but amusing. For pedestrians or occupants of cars passing in the shadow of a rat balloon, which proclaims the presence of a ‘rat employer’ and is surrounded by union agents, the message is unmistakably confrontational and coercive.” Member Hayes would have found that the union’s use of the rat balloon was “tantamount to picketing” and, accordingly, in violation of the statute. Member Hayes also would have found that the union demonstrator’s use of the leaflet, which he held out as a sign to be seen by passing motorists, was a form of picketing.
According to member Hayes, “[s]uch displays, now frequent in labor disputes, constitute a signal to third parties there is, in essence, an invisible picket line that should not be crossed.” He argued that the “predominate characteristic of this union activity is, like picketing, to intimidate by conduct, not to persuade by communication.” In Member Hayes’ view, the Union demonstrator’s conduct was “no less confrontational than wearing a placard, which the Board has long recognized to be the equivalent of carrying a picket.”
Member Hayes summed up his point in dissent: “Moving from giant banners in Eliason to rat colossi mounted on trailers in this case, my colleagues have quite literally expanded the physical mass that unions may erect to confront and deter customers from entering a neutral employer’s premises in order to coerce that employer to cease doing business with the primary employer target of a labor dispute. Clearly, these means of protest owe more to intimidation than persuasion.”
Employers who become embroiled in a labor dispute may expect to see more of these newer forms of expression of views by unions. Indeed, picketing has come to mean less over the years, especially with a significant portion of commerce being done over the Internet. The traditional form of picketing may be on the way out, only to be replaced by newer forms of demonstration that are calculated to garner greater media attention and yet fall just outside the secondary picketing prohibitions of the statute.