NLRB Issues Unfavorable Decisions Finding Union Bannering Lawful

In a disappointing but not surprising move, the National Labor Relations Board on August 27 issued a long-awaited decision about the lawfulness of union bannering, finding it to be permissible, protected activity under the National Labor Relations Act (NLRA). The decision covers three consolidated cases out of Arizona in which representatives of Carpenters Local 1506 held 16-foot-long banners near establishments -- two medical centers and a restaurant -- to protest work being performed for the establishments' owners by open-shop construction contractors.  The main issue was whether a union violates the NLRA when it displays a large, stationary banner on or near the premises of a neutral employer announcing a "labor dispute" and seeking to elicit "shame on" the employer or to persuade customers not to patronize the employer.  NLRA Section 8(b)(4)(ii)(B) prohibits conduct found to "threaten, coerce, or restrain" a secondary employer not directly involved in a primary labor dispute if the object of that conduct is to cause the secondary to cease doing business with the primary employer.  Prior cases have established that picketing that seeks a consumer boycott of a secondary employer is coercive and therefore unlawful, while stationary handbilling with that same object is not coercive and is protected speech.  The question before the Board was whether the bannering in the cases at bar was more like picketing or handbilling.  The Board majority held that the bannering was not coercive and did not constitute unlawful picketing.  The two Republicans on the Board at the time (the term of one Republican expired on August 27) issued a dissent asserting that the bannering was coercive and unlawful. The case was the first to be decided among a dozen or so bannering cases presented to the Board, including two brought by AGC's San Diego Chapter.  The Board decided one of the two San Diego Chapter cases on September 22, finding that the union's conduct there was essentially the same as that found lawful in the first case.  Applying its holding in the first case, the Board concluded that, "absent the use of traditional picket signs, patrolling, blocking of ingress or egress, or some other evidence of coercion, the display of banners in this case was not coercive and did not violate 8(b)(4)(ii)(B)."  The Board issued similar opinions in other cases on September 30 and October 7. The second San Diego Chapter case and several other bannering cases remain pending. These decisions have strong implications for the construction industry and, as noted in the dissenting opinion, come at a particularly detrimental time.  By allowing unions to engage in such blatantly secondary and misleading activity as conducted in these cases, the decisions have the potential to cause increased boycott activity and the disruption of construction projects during a time when the economy in general, and the construction industry in particular, are already highly distressed.  While AGC recognizes and supports the rights of employees and their union representatives to utilize economic pressure tactics against a primary employer with which they have a labor dispute, AGC maintains that allowing such activity as the bannering in these cases runs contrary to NLRA Section 8(b)(4)(ii).  AGC is hopeful that the parties will consider an appeal and that a more rational decision will come out of a circuit court.  AGC also hopes that the Board will take any opportunities presented by the still-pending cases to limit the scope of its decision. United Bhd. of Carpenters Local 1506 (Eliason & Knuth), 355 NLRB No. 159 (Aug. 27, 2010); United Bhd. of Carpenters Local 1506 (AGC San Diego Chapter), 355 NLRB No. 191 (Sept. 22, 2010); Southwest Reg'l Ccl. of Carpenters (Carignan Constr.), 355 NLRB No. 216 (Sept. 30, 2010); United Bhd. of Carpenters Local 1506 (Sunstone Hotel Investors), 355 NLRB No. 219 (Sept. 30, 2010); Southwest Reg'l Ccl. of Carpenters, 355 NLRB No. 216 (Sept. 30, 2010); Southwest Reg'l Ccl. of Carpenters (Richie's Installations), 355 NLRB No. 227 (Oct. 7, 2010).