By Jackson Lewis
Predictions that the newly constituted National Labor Relations
Board will be inclined to issue pro-labor decisions have begun to come
true. In what appears to be its first substantive determination on the
merits of a major dispute, the Democrat-controlled Labor Board on
September 2, 2010, announced its decisions in three cases (Eliason & Knuth of Arizona, Inc., Northwest Medical Center, and RA Tempe Corp.),
holding that “bannering” by a union (holding a large banner in place at
or near a neutral employer’s establishment urging the public not to
patronize that employer because of the union’s dispute with a primary
employer doing business with the neutral or its affiliate) does not
violate the National Labor Relations Act.
NLRA on Secondary Boycott
Section 8(b)(4)(ii)(B) of the National Labor Relations Act 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.”
The Labor Board had previously decided that, under this “secondary boycott” section of the Act, picketing for a consumer boycott of a secondary employer is coercive, and therefore unlawful, whereas stationary handbilling with that same object is not, and is therefore lawful.
In
the three cases at issue, the question before the Labor Board was
whether bannering was more like picketing (and therefore unlawful) or
stationary handbilling (and thus lawful).
The Facts
The same union was in all three cases. The Union was involved in
primary labor disputes with four construction employers (the primary
employers) whom the Union alleged did not pay their employees area
standard wages and benefits. In furtherance of its disputes with the
primary employers, who performed work for the secondary employers or
related firms, the Union engaged in peaceful protests at the sites of
the secondary employers: Thunderbird Medical Center, Northwest Medical
Center, and RA Tempe Restaurant, with whom the Union had no dispute.
At
each of the three locations, the Union placed a banner outside of the
secondary employer’s facility, facing toward the street. (The banners
were three or four feet high and from fifteen to twenty feet long.) At
the Thunderbird and Northwest Medical Centers, the banners read, “SHAME
ON [the name of the secondary employer],” and “Labor Dispute” on either
side of that message. At RA Tempe, the middle section of the banner
read, “DON’T EAT 'RA’ SUSHI.” (At each location, two or three Union
representatives held the banner. They did not patrol with the banner.)
Board’s Decision
The NLRB’s
General Counsel and the secondary employers alleged that the Union’s
banners violated Section 8(b)(4)(ii)(B) of the National Labor Relations
Act because they constituted coercive conduct that had an object of
forcing the neutral employers to cease doing business with the primary
employers. However, in a three-to-two vote, the Labor Board found that
the bannering was like stationary handbilling and, therefore, was
lawful. It concluded that absent “confrontational” conduct, such as
patrolling with picket signs in front of a neutral employer’s entrance
creating a real or symbolic barrier to entry, a violation finding might
unnecessarily raise a First Amendment issue of freedom of expression
under the NLRA.
Joining
Chairman Wilma Liebman in the majority were Craig Becker and Mark
Pearce, two of the new Board members who are expected to side most
often with labor. Members Peter Schaumber and Brian Hayes dissented.
* * *
We
expect this decision to embolden unions to “push the envelope” in their
use of pressure tactics against neutral as well as primary employers.
This is likely to be the first of many decisions the current Labor
Board will issue to expand the rights of employees and unions in their
relation to employers.