Sep 3, 2010

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NLRB: “Bannering” Not Coercive

The National Labor Relations Board released a ruling yesterday that says “bannering” – or raising large, stationary banners in front of secondary employers1 – is not a violation of national labor law.

From the press release:

The decision … covers three Arizona cases in which union carpenters 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” while a third urged customers not to eat at the restaurant.

The section of the National Labor Relations Act in question here2 makes it illegal for unions to “threaten, coerce, or restrain” a secondary employer in order to get them to stop doing business with the primary employer.

Now that is definitely coercive...

When a union is trying to get consumers to boycott a secondary employer, the NLRB has previously drawn a line between picketing (mostly illegal) and passing out handbills in front of the business (totally fine).  With these three cases, the Board had to deal with giant banners, which when you think about it are kind of like a form of stationary picketing. Or one big mass handbill. You see the dilemma.

Well, the majority of the Board came down on the “big, mass handbill” side.

Quoting a Supreme Court opinion,3 the Board acknowledged that the anti-coercion section of the Act was “adopted…with the objective of ‘shielding unoffending employers’ from improper pressure intended to induce them to stop doing business with another employer with which a union has a dispute.”

However, the Board noted that the Supreme Court has required more action to fall under the “threaten, coerce or restrain” umbrella — something along the lines of blocking an entrance, violence, intimidation, etc. At any rate, trying to persuade the public is not enough for the majority.

As for the argument that bannering is really just stationary picketing, the Board said that there’s an important distinction – confrontation. Picketing, the Board says, is not merely holding a sign, but moving back and forth in front of a business, so that the workers or customers of the offending company must engage in some way with the picketers.

Finally, the Board majority points out that, if it found bannering to be a violation of the statute, it would raise a question about whether the statute was unconstitutionally limiting the union’s free speech rights. The Board said that, because there was another reasonable way to interpret the Act, it was “compelled” to find bannering acceptable because of the Constitutional Avoidance doctrine. Under the “Constitutional Avoidance” doctrine, if calling something a violation of the Act triggers a Constitutional question, the Board should only interpret the statute that way if such a finding is “unavoidable”.4

The decision was 3-2, along party lines. No shocker there. No doubt this will be appealed; it is a matter of first impression, and will go through the 9th Circuit in California, so there’s a good chance it will worm its way to the Supreme Court in a year or so. Stay tuned.

One last note, all three charges were originally filed in 2003. They are being heard now, because of the longstanding vacancies at the NLRB. Just to give you some idea of how the backlog looks over there.

HT to John Hyman for tweeting the press release.

1. A secondary employer is a business that isn’t directly involved in a labor dispute, but has ties to the employer that is. In this case (and most cases) it was the businesses that hired the construction company, rather than the construction company itself. [↩]
2. Section 8(b)(4)(ii)(B), if you want to get wonky. [↩]
3. NLRB v. Denver Building & Construction Trades Council, 341 U.S. 675 (1951). [↩]
4. You could call it the “path-of-least-resistance” doctrine, but I don’t think that reads as well. [↩]