NLRB Strengthens its Permissive Position on Union Bannering

The National Labor Relations Board has ruled in the second of two bannering cases brought by the San Diego Chapter AGC, finding lawful a union’s display, at business locations of secondary employers, of banners announcing a “labor dispute” and seeking to “shame” the employers or to persuade the public not to patronize the employers.  The ruling is the final Board decision in a series of bannering cases originating in 2003-2004.  The Board first ruled a year ago, and in each case since then, that such activity did not constitute picketing and did not “threaten, coerce, or restrain” the secondary employers as proscribed by the National Labor Relations Act. In the present case, the Chapter charged that the union had unlawfully promoted consumer boycotts of several project owners (the secondary employers) to stop doing business with general contractors that subcontract work to open-shop firms.  The Chapter’s case was consolidated with three other cases involving similar facts.  The consolidated case differed from the earlier cases in several ways.  For example:  one of the banners omitted any reference to any “labor dispute” and simply accused the secondary employer of being a “greedy corporate citizen;” in two instances, customers of the secondary employers reacted to the bannering as if it were picketing, characterizing the activity as just that, and curtailing their business with the secondary employer; in several locations, the banners were just 15 feet from the driveway entrances to the secondary employer, and, in another instance, the banner was just 8 feet from an outdoor dining area; and, in several locations, accompanying handbillers were more mobile and more aggressive than they had been in the earlier cases.  The NLRB examined these differences in the facts of this particular case but held that they did not warrant a different result.  The Board was also unpersuaded by an administrative law judge’s decision finding the bannering in the present case to be unlawful. The Chapter and other parties in the case are deciding whether to appeal.  None of the other cases in the series have been appealed to date. For more information on union bannering, visit AGC’s Labor & HR Topical Resources page at www.agc.org/topicalresources, and select the main category “Unions/NLRA” and the subcategory “Union Bannering.”