Union’s Display of Large Stationary Banners at a Secondary Employer’s Business is Legal
By Ted Olsen
Section 8(b)(4)(ii)(B) of the National Labor Relations Act prohibits union conduct that threatens, coerces, or restrains another employer (the "secondary employer," not the employer with which the union has a dispute) if the union's objective is to cause the secondary employer to stop doing business with the primary employer, or to cause consumers to stop doing business with the secondary employer. For instance, a union involved in a dispute with a construction contractor may not threaten, coerce, or restrain a hotel that hired the contractor to perform construction work, if the union's aim is to induce the hotel to cease doing business with the contractor and/or to induce people not to patronize the hotel.
The issue in these cases is what type of conduct threatens, coerces, or restrains. Under existing law, union picketing of a secondary employer (visualize patrolling picketers with signs who may or may not confront those who pass) is considered coercive and therefore unlawful. On the other hand, union handbilling at the secondary employer's place of business (imagine a stationary individual distributing leaflets to those passing by) is not considered coercive and is therefore protected speech.
But what about individuals standing next to signs or banners that criticize the secondary employer's business with the primary employer? On August 27, 2010, the NLRB, in a 3-2 decision, ruled for the first time, in three cases from Arizona, that peaceful "stationary bannering" is not coercive and is therefore lawful. Eliason & Knuth of Arizona, Inc., Case No. 28-CC-955; Northwest Medical Center, Case No. 28-CC-956; and RA Tempe Corporation, Case No. 28-CC-957.
In all three cases, agents of the United Brotherhood of Carpenters and Joiners of America, Local 1506, held 16-foot-long banners near establishments - two medical centers and a restaurant - to protest work being performed for the owners of the establishments by construction contractors that the union claimed paid substandard wages and benefits. Two banners declared "SHAME"; the third urged customers not to eat at the restaurant.
The Board majority - Chairman Wilma Liebman and Members Craig Becker and Mark Pearce - found that the peaceful stationary bannering was akin to a billboard or stationary handbilling, and was therefore not an unfair labor practice.
This ruling does not necessarily leave a secondary employer completely without remedy when stationary bannering disrupts its operations. In some instances, the stationary bannering may require certain permits, and the union's failure to obtain such permits may provide a basis for stopping the conduct. Also, of course, if the bannering is not peaceful, or if it blocks public entrance to or exit from the secondary employer, injunctive relief may be available.
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©2010 Sherman & Howard L.L.C. September 10, 2010