By Judd H. Lees- Labor & Employment Alert
Over the last few years, Seattle contractors and owners involved in highly visible construction sites, have had the pleasure of enduring banners by labor unions proclaiming them “unfair” or worse. Most of these four-foot by sixteen-foot banners identify only the owner which wrongly suggests the “labor dispute” is with them rather than the open-shop contractor or subcontractor which is the actual object of the organizing effort. Employers have sought relief from the National Labor Relations Board on the premise that such bannering is unlawful “secondary” activity like picketing, and therefore can only be carried out when the target company is present at the jobsite and in full compliance with dual gate procedures. Unions have countered that bannering is akin to “speech” and is therefore not subject to the National Labor Relations Act’s secondary boycott provisions. Many key bannering cases, including several filed by this law firm, have been pending for years awaiting the full complement of Board members to address this important issue.
On September 2, 2010, Board chair Wilma Liebman joined new board members Craig Becker and Mark Pierce to finally issue a controversial 3-2 decision that banners are not inherently coercive and are therefore not subject to the secondary boycott provisions of federal labor law. In the consolidated cases known as United Brotherhood of Carpenters Local No. 1506 (Elias on & Knuth of Arizona, Inc.), 355 NLRB No. 159 (2010), the Board majority determined that neither the language of the National Labor Relations Act nor its legislative history suggests Congress intended to apply secondary boycott provisions to the “peaceful stationary display of a banner.” Employer member Schaumberg, who is soon to leave the Board, filed a spirited dissent claiming the decision would leave the door open to all sorts of union secondary activity. The case involved the following stipulated facts.
The Carpenters Union had a primary labor dispute with several construction employers, including Ellison & Knuth of Arizona, allegedly based on the employer’s failure to pay area standard wages and benefits. As part of its actions, Carpenters Union members held large banners stating “Shame on [NAME OF SECONDARY EMPLOYER]” in large letters and the statement “Labor Dispute” on either side of this statement in smaller letters. Thus, the banner appeared to identify the neutral building owner as the target of the labor activity rather than the targeted contractor. The banners could be viewed by passing motorists and were some distance from the jobsite entrances. Although accompanied by leafleting, they were not accompanied by traditional picketing. There were, at most, only four Union representatives present at any time and, as a result, there was no chanting, yelling, or any other “confrontational activity.”
Normally, union attempts enmesh a neutral owner or contractor in a labor dispute with a primary or target company, violate the secondary boycott previsions of the National Labor Relations Act since this activity is considered coercive conduct aimed at unlawfully forcing the neutral owner to stop doing business with the target company. The question before the Board was whether bannering activity is “conduct” similar to picketing or it is pure “speech.” The Board determined that bannering is speech subject to the “core protections of the First Amendment”:
Under our jurisprudence, categorizing peaceful, expressive activity at a purely secondary site as picketing renders it unlawful without any showing of actual threats, coercion, or restraint, unless it falls within the narrow exception for consumer picketing.
The Board went on to hold that picketing is inherently coercive since it involves not only a display, but also the movement of picketers in front of a jobsite entrance which creates a barrier for workers entering the jobsite. The Board determined that stationary banners do not create such a barrier, especially when, as here, the banners were far enough from the entrances “so that anyone wishing to enter or exit the sites could do so without confronting the banner holders in any way.” According to the majority, only this holding could ensure that constitutional questions under the First Amendment right of free speech could be avoided.
In a strong dissent, the Board members Schaumberg and Hayes pointed out bannering has the same coercive impact as traditional picketing, banners are, in reality, large stationary picket signs. The dissenters also pointed out the secondary boycott provisions have applied to picketing activity even when the picketers are not patrolling.
Neutral owners and targeted employers should therefore brace for an increase in bannering activity. In addition, banners should be monitored to ensure there is no patrolling, yelling, mass demonstrations or banners which block entrances or even create a perceived barrier. Finally, employers should determine whether the banners are accompanied by picketing since this could allow affected employers to argue that the bannering has lost its “pure speech” character and is subject to the same secondary boycott proscription as picketing.