NLRB upholds "bannering" of neutral employers. – During a strike against two general construction contractors, the carpenter's union erected banners at 19 worksites and failed to confine its bannering and handbilling to gates reserved exclusively for employees of the general contractors. The banners referred to the existence of a "labor dispute" and were intended to "shame" the secondary, neutral employers. The general contractors filed unfair labor practice charges, alleging that the union conduct was unlawful coercion of neutrals and unlawful inducement of employees to stop work in violation of Section 8(b)(4) of the Act. A complaint was issued but was dismissed by an Administrative Law Judge.
Both the NLRB General Counsel (Meisburg at the time) and the two contractors filed exceptions with the NLRB. The General Counsel argued that the union's bannering activity was a form of picketing or that it constituted "signal picketing" that alerted employees of neutral employers that the union was asking them not to work because of its dispute with the general contractors. However, the Board majority of Liebman, Becker and Pearce said that in the 2010 decision in Eliason and Knuth of Arizona, Inc., the Board found 3-2 that banner displays did not constitute picketing because they lacked the "element of confrontation that has long been central to our conception of picketing." According to the majority, "here there was no evidence (beyond the display itself and its location) that the display of banners adjacent to the construction sites was intended to operate as a request or would reasonably have been understood as a request to employees of secondary employers to cease work." Accordingly, "the General Counsel has not demonstrated that the union's peaceful banner displays violated Section 8(b)(4) of the Act."
Dissenting Member Hayes said that the union displayed its banner and distributed handbills at a neutral gate of a job site that was not open to the public, indicating that its action was an unlawful inducement of the employees of neutral companies. Hayes said that the majority disregarded established principles under the NLRA that "effectively narrow[ed]" Section 8(b)(4) to where it prohibited "only picketing for a forbidden work stoppage or, perhaps, an explicit call for one by other means." According to Hayes, "It is now quite apparent that the majority is bent on undoing through adjudication the restrictions imposed by Congress on unions' ability to involve neutral employers and employees in a labor dispute. . . . Of course, they lack the authority to do so."