In a case of first impression, a divided National Labor Relations Board (Board) held that the union practice of displaying large stationary banners in front of a secondary employer's business is not a violation of the National Labor Relation Act's (NLRA) secondary boycott provisions. In Carpenters & Joiners of America, union members held 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.
Ultimately, the Board majority – led by Chairman Wilma Liebman and Obama appointees Craig Becker and Mark Pearce – found that the NLRA and its legislative history was not intended to prohibit the "peaceful stationary display of a banner." In other words, peacefully displaying a banner does not violate the NLRA's prohibition against a union threatening, coercing, or restraining a secondary employer not directly involved in a labor dispute.
"Intimidation or Persuasion"
The issue, as framed by the Board majority, was whether the display of stationary banners on public sidewalks constitutes "intimidation or persuasion." According to the majority, the NLRA's secondary boycott provision permits persuasive conduct, but not intimidating conduct. Thus, the Board distinguished coercive picketing from persuasive bannering by explaining that picketing creates a physical or symbolic confrontation with workers entering a worksite, while bannering creates no such confrontation. The Board reasoned that, "Banners are not picket signs. Furthermore, the union representatives held the banners stationary, without any form of patrolling ... The banners were located at a sufficient distance from the entrances so that anyone wishing to enter or exit the sites could do so without confronting the banner holders in any way."
The Board's ruling will undoubtedly lead to an increase in secondary boycotts. Based upon the Board's ruling in Carpenters & Joiners of America, unions can now display banners near a secondary employer's place of business. The only caveats appear to be that the banners 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.