In a 3-2 decision released on September 2, 2010, the National Labor Relations Board (NLRB) held that a union's practice of displaying large stationary banners in front of secondary employers' businesses did not violate the secondary boycott provisions of the National Labor Relations Act (NLRA).

Background

The NLRB's decision in United Brotherhood of Carpenters and Joiners of America, Local Union No. 1506 covered three Arizona cases in which a carpenter's union was involved in labor disputes with several local construction employers (the "primary employers"). In connection with these labor disputes, the union staged peaceful protests at the sites of three "secondary" employers -- neutral employers who had business relationships with the construction companies, but with whom the union had no direct dispute.

Union representatives held up a large, stationary banner near each of the neutral employers' entrances. Two of the banners read, "SHAME ON [secondary employer]." The third banner, placed in front of a restaurant owned by RA Tempe Corp., read, "DON'T EAT 'RA' SUSHI." The words "Labor Dispute" were printed on each banner, which measured between 15- and 20-feet-long and 3- to 4-feet-tall. The banners were held by two or three union representatives and were placed within several hundred yards of each secondary employer's entrance. In one case, a banner was placed only 15 feet from the business' entrance.

At each location, no more than four union representatives were present. They did not block sidewalks, and they did not chant, march, yell or engage in any "similar conduct." They did, however, offer flyers to members of the public. The flyers asserted that although the union's underlying complaint was with the primary employers, the secondary employers "contributed to the undermining of area labor standards" by using the services of the primary employers.

The NLRB's Decision in United Brotherhood of Carpenters

The majority held that the labor union's banner displays did not violate Section 8(b)(4)(ii)(B) of the NLRA. According to the NLRB, that section "prohibits conduct found to 'threaten, coerce, or restrain' a secondary employer not directly involved in a primary labor dispute if the object of that conduct is to cause the secondary to cease doing business with the primary employer."

The majority noted that as a rule, picketing for a consumer boycott of a secondary employer is coercive and, therefore, unlawful, whereas stationary handbilling for a consumer boycott is not deemed coercive, and is therefore lawful. Because the majority found bannering to be analogous to handbilling, it found the conduct at issue was non-coercive and, therefore, is lawful.

The majority also asserted that, in the absence of any "confrontational" conduct, such as patrolling with picket signs in front of a neutral employer's place of business and creating a barrier to entry, finding the union's banner displays to be unlawful standing alone could give rise to a First Amendment freedom of speech question.

In its critical dissent, the minority asserted that NLRB precedent actually prohibits bannering as a means of promoting a secondary boycott. The dissent added that because bannering has the same coercive impact as traditional picketing, this decision "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."

What This Decision Means for Employers

The recent appointment of three new Democratic members to the NLRB has many employers concerned about an increase in pro-labor decisions. In that regard, the decision in United Brotherhood of Carpenters could be a harbinger of things to come. However, it is possible the majority will take the dissent's admonishment seriously and apply NLRB precedent more carefully going forward. Until that time, this decision momentarily expands the ability of unions to wage campaigns against secondary employers by using tactics that will not be regarded as coercive, although they apply acute pressure.