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Peaceful “SHAME ON” Bannering Is Not an Unlawful Secondary Boycott, According to the NLRB (Read

By Kathryn Hackett King

Most of us have seen the large union banners situated in front of business establishments throughout the city that read “SHAME ON” a business and state that there is a “labor dispute.”  At first blush, it would appear that the union has a labor dispute with the particular business mentioned on the banner.  What many people do not realize is that the union in all likelihood does not have a labor dispute with the business that it is criticizing on its banner.  Rather, the union is actually trying to persuade that business into discontinuing its relationship with some other business with which the union has a labor dispute. 

On August 27, 2010, the National Labor Relations Board (NLRB) issued a landmark decision concluding that the holding of stationary banners in front of a place of business, such as these “SHAME ON” banners, does not constitute an unlawful secondary boycott under the National Labor Relations Act (NLRA).  See Eliason & Knuth, 355 NLRB No. 159 (Aug. 27, 2010).

Section 8(b)(4)(ii)(B) of the NLRA provides that a union commits an unfair labor practice if the union, among other things: “[t]hreaten[s], coerce[s], or restrain[s] any person engaged in commerce or in any industry affecting commerce, where . . . an object thereof is . . . forcing or requiring any person to cease using, selling, handling, transporting or otherwise dealing in the products of any other producer, processor or manufacturer, or to cease doing business with any other person . . . .”

In Eliason & Knuth, the current Board held, in a 3-2 decision, that the holding of peaceful, stationary banners with language such as “shame on” directed to and in areas close to employers with which the union does not have a dispute (“neutral employers”) does not constitute “picketing,” because there is no “patrolling” or confrontational conduct sufficient to constitute threats, coercion or restraint.  Accordingly, absent any additional conduct, such bannering does not constitute a violation of the NLRA sections prohibiting secondary boycott.

The Board emphasized that a union is free to approach a secondary employer to “persuade” him to engage in a boycott against another entity, with which the union has a dispute, so long as the union refrains from “coercion.”  More than mere “persuasion” is necessary to show “coercion.” 

The current Board’s view – as described in the Eliason & Knuth decision – is that the focus of Congress in prohibiting secondary boycott was “picketing” and not peaceful persuasion of customers by means other than picketing.  In order to find “coercion,” it is necessary to find either picketing or conduct that is “otherwise directly disruptive of the secondary employer’s operations in a manner that should be classified as coercion.” 

The Board held that a union’s bannering activities do not constitute picketing, since there is no patrolling back and forth before an entrance to a business or worksite.  Patrolling by the picketers back and forth in front of an entrance to a business or worksite is necessary in order to find “picketing,” as such patrolling “creates a physical, or at least a symbolic confrontation between the picketers and those entering or leaving the business location or worksite.” 

Moreover, in order to find that non-picketing conduct constitutes “coercion,” it is necessary to show that the union’s conduct actually disrupted the neutral employer’s operations.  Examples of such conduct would include blocking entrances or exits, broadcasting its message at extremely high volume through loudspeakers, “or in some other fashion threatening or actually disrupting the neutral’s operations.”

What Can Businesses Expect Now?  In light of the Eliason & Knuth decision, you may see an increase in bannering and handbilling in front of your place of business and at residences of members of management, boards of directors and trustees of “neutral employers” in furtherance of the unions’ efforts to “persuade” secondary neutral employers to boycott entities with which the unions have labor disputes.  If confronted with this type of union activity, an experienced labor and employment attorney can provide useful guidance in handling the matter. 

Kathryn Hackett King is an Associate with Snell & Wilmer L.L.P.  Kathryn’s practice is concentrated in labor and employment litigation.
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Posted by Admin on 10/29 at 01:28 PM