Recently, we informed you of National Labor Relations Board (Board) decisions that have allowed unions to use large stationary displays, such as oversized balloons and banners, near a business that is not involved in a labor dispute (a "secondary" employer) with the union. In September 2010, the Board found a union could lawfully hold a 16-foot long banner near two medical centers and a restaurant to protest construction contractors that the union claimed paid substandard wages and benefits. Then, in May 2011, the Board found that a union's use of a stationary 16-foot tall rat balloon in front of a hospital did not violate the National Labor Relations Act (Act).
On August 11, 2011, the Board reaffirmed this view by finding that a union did not violate the Act by displaying a large stationary banner that proclaimed "shame" on a secondary employer during a labor dispute with a construction company. The decision by the Board majority – Chairwoman Wilma Liebman and Members Craig Becker and Mark Pearce, all of whom are former union lawyers – confirmed that the Act does not prohibit the peaceful stationary display of such a banner, as it does not constitute threatening, coercing or restraining a secondary employer not directly involved in a labor dispute.
In Carpenters & Joiners of America, Local 1827, several unions had disputes with construction firms that they claimed failed to pay their employees wages and benefits that met area standards. The unions conducted bannering activity at facilities of secondary or neutral businesses that did business with the construction firms, including State Farm Insurance Co., United Parcel Service Inc. and a Hyatt hotel. For example, the union displayed banners that stated "State Farm Insurance, a Greedy Corporate Citizen" near State Farm offices in Denver, but kept them on public sidewalks 24 feet to 100 feet from building entrances. The banners did not mention a labor dispute, but union agents holding the banner gave out handbills advising the public of their claim that the construction company was failing to meet area compensation standards. The Board noted that there was no evidence that union agents blocked access to any State Farm facility.
In finding that this and other similar conduct was lawful, the Board found that the union's conduct had First Amendment protection and declined "to place labor organizations' speech into a special and disfavored category." It cited its September 2010 decision, in which it held that union bannering at a secondary employer's location did not violate the Act, as supporting a decision in this case that the unions' bannering of secondary employers' places of business was not picketing and did not "threaten, coerce or restrain" those secondary employers.
The Board's ruling, in conjunction with its earlier decisions, will undoubtedly continue the increase in the use of displays, such as balloons and banners, near a secondary employer's place of business. The only caveats appear to be that such displays must remain stationary and be located a sufficient distance from the employer's entrances. Moreover, such banners cannot have the effect of inducing individuals not to pick up, deliver or transport goods or not to perform services.
If you have any questions about this decision or any issue involving union conduct, you should seek legal counsel.