On August 27, 2010, the Board ruled in three consolidated cases that “bannering” at a secondary employer was not coercive and does not violate labor laws. The cases, involving the United Brotherhood of Carpenters and Joiners of America, Local 1506, in Arizona, arose when union carpenters held 16-foot banners near establishments (two medical centers and a restaurant) to protest work performed for the owners by construction contractors that the union claimed paid substandard wages and benefits.  Two of the banners declared “SHAME” while a third urged customers not to eat at the restaurant.  In all three cases, the banners were all placed on the outside edge of a sidewalk visible only to traffic or those across the street.  The Board concluded that as long as it is done in a non-coercive manner, a union may display such banners at a neutral, secondary employer without running afoul of the prohibition against secondary boycotts contained in the National Labor Relations Act.  United Bhd. of Carpenters and Joiners of America, Local Union No. 1506, 355 NLRB No. 159 (Eliason).

Eliason was the first to be decided among a backlog of more than a dozen bannering cases pending before the Board.  The Board’s subsequent decisions in the backlogged cases indicate a consistent conclusion, despite some differing factual circumstances.  In the second case, United Bhd. of Carpenters Local 1506 (AGC San Diego Chapter), 355 NLRB No. 191 (Sept. 22, 2010), the Board found that the union's conduct was essentially the same as that found lawful in the first case.  The only differences noted were that the banners were held by union members on the inside edge of the sidewalk so that pedestrians could see them.  Other union representatives handed out leaflets, which read “Shame on [secondary employer] for Desecration of the American Way of Life” and included a drawing of a rat gnawing on an American flag.  Despite the handbills, the Board applied its initial holding, concluding that “absent the use of traditional picket signs, patrolling, blocking of ingress or egress, or some other evidence of coercion” the display of banners was not coercive and did not violate the NLRA.

In the third case, United Bhd. of Carpenters Local 1506 (Sunstone Hotel Investors), 355 NLRB No. 219 (Sept. 30, 2010), the Board addressed the distance from an entrance that a banner may lawfully be placed.   In Eliason, the banners were between 15 and 1,050 feet from the entrances – distances the Board found did not block ingress or egress or create any form of confrontation between union agents holding the banners and those individuals entering or exiting.  While the Board refused to state a precise minimum distance from an entrance or exit where a banner could lawfully be located, it specifically found in the Sunstone Hotel Investors case that 10- and even 4-foot distances from the banner to the entrance or exit were not too close. 

The Board’s fourth decision in this area, Southwest Reg'l Ccl. of Carpenters (Carignan Constr.), 355 NLRB No. 216 (Sept. 30, 2010), did not add any new facts or discussion but simply reiterated that secondary bannering did not violate the Act.. 

The fifth decision issued by the Board, Southwest Reg'l Ccl. of Carpenters (Richie's Installations), 355 NLRB No. 227 (Oct. 7, 2010), addressed whether movement of the banners constituted patrolling that would make the activity picketing.  Although the banners were moved in several instances, the Board concluded that there was no marching or “continuous” or “sustained” movement.  The banners were moved by the union agents holding them in order to get out of a truck loading zone and then later so that the banner holders could remain in the shade, actions that did not constitute the type of patrolling that is an element of picketing.  The Board found that these movements were de minimis and refused to distinguish the case from the earlier decisions where bannering was deemed lawful.

Several additional cases remain to be decided by the Board.  It appears clear, however, that absent actual confrontation or picketing, and even when conducted with contemporaneous handbilling, the Board will not find bannering activity at a secondary employer unlawful.

This entry was written by Ben Huggett.