When a union has a labor dispute with an employer (the “primary employer”), it sometimes attempts to gain leverage by putting pressure on other employers that do business with the primary employer (“secondary employers”). This is called a secondary boycott, and the National Labor Relations Act (“NLRA”) prohibits such activity when it is threatening, coercive, or restraining and is aimed at forcing a person or company to stop doing business with another person or company. Recently, the National Labor Relations Board (“NLRB”) addressed whether a union’s display of a large banner outside a secondary employer’s location constituted unlawful secondary boycott activity. In United Brotherhood of Carpenters, Local Union No. 1506 (Eliason & Knuth of Arizona, Inc.), the NLRB concluded that the challenged conduct was lawful activity aimed at a secondary employer.
The NLRB’s Decision in Eliason & Knuth
In Eliason & Knuth, the Carpenters union had a labor dispute with four construction contractors, which the union claimed were paying substandard wages and benefits. In support of its labor dispute, the union displayed large banners outside the locations of several secondary employers that did or had done business with the construction companies. The banners were three or four feet high and fifteen to twenty feet long. Each contained the words “Labor Dispute” and the message “Shame on [name of the secondary employer].” The banners were held up by union supporters who remained stationary, standing on a public sidewalk as close to the street as possible and facing the street. Other union supporters handed out leaflets announcing that the union’s primary labor dispute was with the construction companies and not with the secondary employers. The number of union supporters at each secondary location was small, and although the banners were displayed as close as fifteen feet from a secondary employer’s entrance, the union supporters did not impede access to the secondary employer’s location. The union supporters did not march back and forth and did not engage in confrontational conduct.
Some of the primary employers as well as some of the targeted secondary employers filed unfair labor practice charges against the union, claiming that its display of the banners violated the NLRA’s prohibition against secondary boycott activity that threatens, coerces, or restrains any person engaged in commerce with an object of forcing a person to cease doing business with any other person. In a 3-2 decision, the NLRB held that the display of the banner was not unlawful secondary boycott activity because it did not threaten, coerce, or restrain anyone. Although the NLRB has long held that picketing at a secondary employer’s location generally constitutes unlawful secondary boycott activity because picketing sets up at least a symbolic barrier that persons wishing to enter the picketed location must cross, it went to great lengths in this case to distinguish the stationary display of a banner from picketing. The NLRB emphasized that the union supporters here did not patrol back and forth and therefore created no symbolic barrier to the targeted locations. It pointed out that the union supporters holding the banners faced the street rather than the sidewalk and that persons wishing to enter the secondary employers’ locations could do so without confronting the union supporters. No union supporter made any threatening or intimidating comments to persons approaching the locations, and there was no disruption to the secondary employers’ operations. Although union supporters handed out leaflets at the targeted locations in conjunction with the display of the banners, the NLRB has long recognized that handbilling, without more, is not threatening, coercive, or restraining secondary conduct in violation of the NLRA. Thus, the NLRB concluded that under the facts presented here, the union’s display of the banners did not violate the NLRA’s secondary boycott provisions.
The NLRB’s decision in Eliason & Knuth opens the door to a wide range of invidious tactics unions can use to embroil secondary employers in their labor disputes with primary employers. Secondary employers are now more vulnerable to having their names and reputations publicly besmirched by unions, even though they have done nothing wrong. The banners upheld in Eliason & Knuth, after all, contained the words “Labor Dispute” and named only the secondary employers. Persons seeing those banners would naturally assume that the union’s primary labor dispute was with the secondary employers, and some might refuse to patronize the secondary employers as a result. The NLRB did not, however, consider that possibility significant, noting that even false statements have been deemed permissible in the context of labor disputes. The NLRB’s reasoning in Eliason & Knuth could easily be extended to other forms of nonpicketing union conduct at secondary sites, including the increasingly widespread use of giant, inflatable rats displayed on public property near a targeted employer’s facility.
Employers faced with bannering and other forms of union publicity should promptly contact legal counsel. Under certain circumstances, such as those involving trespass, threats, or damage to property by union supporters, employers may be able to take legal action against the union activity.