A Banner Day for the Unions

National Labor Relations Board Declares Union ‘Shame’ Banners Lawful

In light of the new Democratic majority on the National Labor Relations Board (NLRB), many businesses have braced themselves for the flurry of pro-union decisions likely to come. In fact, in a decision issued in September, the new NLRB confirmed its suspected pro-union stance by significantly expanding a union’s ability to protest against neutral, secondary employers by displaying large stationary banners at their facilities.
In United Brotherhood of Carpenters and Joiners of America, Local Union No. 1506, 355 NLRB No. 159, the union accused several non-unionized construction contractors of paying substandard wages and benefits to their employees. In order to put pressure on the contractors to change their ways, the union began protesting at companies that utilized the services of the contractors (so called neutral businesses). In doing so, the union displayed large banners at the neutral businesses’ worksites that were three to four feet high and 15 to 20 feet long and contained messages, such as “SHAME ON [neutral business]” or “DON’T EAT RA SUSHI” directed at a sushi restaurant that did business with one of the contractors. Each message was flanked on either side with the words “LABOR DISPUTE” and were held as close as 15 feet from the entrance to the neutral company’s worksite.
In addition to displaying the banners, union representatives also distributed handbills to the public explaining their underlying labor dispute concerning the contractors who purportedly were not paying their employees enough. The handbills stated that consumers who patronized the neutral customers were “contributing to the undermining of area labor standards.”
The neutral businesses sued the union for unfair labor practices, contending that the union’s conduct by displaying banners at their businesses involved them in the union’s dispute with the contractors and, thus, amounted to a secondary boycott in violation of the National Labor Relations Act (NLRA). Section 8 of the NLRA prohibits secondary boycotts. Indeed, under the NLRA, secondary boycotts are defined as a labor union’s conduct that threatens, coerces, or restrains any person with the intention of forcing that person to cease their business dealings with any other person. The purpose behind the secondary boycott provision is to shield neutral businesses from improper pressure to stop them from doing business with a company with which a union has a dispute.
This issue of whether a stationary banner violated the NLRA had never been addressed before. Picketing at neutral companies, however, had previously been declared unlawful under the NLRA because of the confrontations that could occur between the picketers and other individuals who attempt to cross the picket line.
In a 3-2 decision, the NLRB held that the union’s conduct was not threatening or coercive and, therefore, did not violate the secondary-boycott provisions of the NLRA. In reaching this decision, the NLRB ruled that “the banner displays here did not constitute such proscribed picketing because they did not create a confrontation. Banners are not picketing signs … [and] the banner holders did not move, shout, impede access [to], or otherwise interfere with the [neutral customers’] operations.”
Despite the inherent similarities between picket signs and banners, the NLRB majority reasoned that, even though union representatives held the banners, the banners were not threatening or likely to lead to a confrontation like picketing because the banners were held in a stationary position and placed at a sufficient distance away from the neutral businesses’ entrances, and the individuals passing by could simply ignore the banners.
The NLRB’s decision signifies a considerable expansion of a labor union’s rights under the NLRA. By allowing the display of banners at a neutral party’s place of business, unions have increased their protesting power and access to companies and their employees with which they have no contractual relationship. Beyond these immediate implications, the NLRB’s decision also appears to foreshadow the types of decisions that will come out of the new Obama NLRB. Now that the term of Republican Peter Schaumber has expired, the current NLRB is comprised of only four members, three of which are considered to embrace pro-union views because of their lengthy prior careers as labor-side attorneys.
Pro-union decisions are likely to increase even more due to the U.S. Supreme Court’s ruling earlier this year voiding nearly 600 NLRB decisions from January 2008 to April 2010 when there were only two members sitting on the board. In response, the NLRB has begun to reconsider those cases. 
Because of the new dynamic of the NLRB and because of unions’ increased efforts to organize, non-union businesses should begin assessing their vulnerabilities to any potential organizing efforts and then create strategies, in consult with their labor and employment counsel, for responding to any such organizing efforts.

Amy B. Royal, Esq. and Benjamin A. Bristol, Esq. specialize exclusively in management-side labor and employment law at Royal & Klimczuk, LLC, a women-owned, boutique, management-side labor- and employment-law firm; (413) 586-2288; [email protected]