In a decision released this month, the NLRB cleared the way for unions to display large disparaging banners outside businesses which hire nonunion contractors. Thus a new weapon is added to the union’s arsenal when they protest against union-free employers. In this case, the United Brotherhood of Carpenters and Joiners of America Local 1506 was upset that several businesses hired nonunion construction companies. The union stood outside of these businesses with three foot high, twenty foot long banners saying “SHAME ON [employer’s name]” with the words “labor dispute” in small letters on the side. At a restaurant called RA Tempe, the union banner said “Don’t eat ‘ra’ sushi.” None of the banners blocked the sidewalks, and the banners remained stationary.
Frequently a union objects when an employer (secondary employer) hires a nonunion company (primary employer) that pays what the union allegedly considers substandard wages. The union calls for the public to boycott the secondary employer because it refuses to hire union workers. However, the real dispute is between the union and the primary employer, not the secondary employer. In the past, the NLRB has held that unions may not picket in front of a secondary employer with whom they do not have a dispute. Such picketing is coercive and unnecessarily disrupts the secondary employer’s business. The NLRB does, however, allow unions to hand out flyers outside of the secondary employer’s business, because it says this method is less coercive to customers. This is known as “handbilling.”
In this case, the NLRB found that holding stationary banners does not constitute picketing and is not coercive enough to cause a disruption to the secondary employer’s business. The Board said that Congress did not intend the National Labor Relations Act to prohibit a peaceful banner on the sidewalk. It distinguished between persuasive conduct, and coercive and intimidating conduct. It said that, like handbilling, a stationary banner is merely persuasive and does not intimidate or coerce anyone. Picketing is intimidating because of the forceful nature of union members shouting and circling outside an employer’s place of business.
In essence, the Board finds it unlawful for unions to move around while holding a sign, but if the union holds that same sign stationary, it is lawful. The decision widens the scope of permissible activities the union may use to protest a secondary employer’s actions. The dissenters worry that this decision will open the door for more secondary boycotts. If a union sets up a picket or banner, or starts handing out flyers to your customers, you should immediately contact counsel to ensure your rights are not violated.
Brody and Associates regularly advises its clients on all labor management issues and provides various training programs. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.
