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The Narrowing of the Picketing Definition and Beginning of the NLRB Tilt Favoring Unions

On August 27, 2010, the reconfigured National Labor Relations Board (“NLRB” or “Board”) issued a decision in United Brotherhood of Carpenters, 355 NLRB No. 159 (08/27/10), which significantly expands the labor movement’s ability to wage public campaigns against “neutral” employers in addition to “primary” employers that are the source of the labor dispute.  In recent months, the Board’s composition has significantly changed due to President Obama’s recess appointments of Craig Becker and Mark Pearce, and appears to be very favorable to the unions.

In United Brotherhood of Carpenters, the Board majority of Chairman Liebman, and Members Becker and Pierce held that a union has the right to display “large stationary banners” with messages attacking secondary employers that purchase products or services for the “primary employer” with home the union has a labor dispute.  The case involves a construction union in a dispute with nonunion contractors that allegedly offered substandard wages and benefits.  The union targeted two medical centers and a restaurant that utilized the services of the nonunion contractors with large 16-foot banners reading “SHAME ON [secondary employer]” based upon their business relationships with the nonunion contractors.  The neutral employers filed an unfair labor practice charge against the union with the NLRB.

“Secondary boycotts” are prohibited pursuant to Section 8(b)(4)(ii)(B) of the National Labor Relations Act (“NLRA”).  Under the NLRA, secondary boycotts are defined as when a labor organization engages in conduct to “threaten, coerce, or restrain any person . . . where . . . an object thereof is . . . forcing or requiring any person to . . . cease doing business with any other person.”  This provision permits peaceful handbilling, but prevents unions from engaging in picketing activities, like marching and carrying signs, that are designed to target a secondary employer in an effort to persuade the public not to patronize the secondary employer due to its relationship with the primary employer.

Under United Brotherhood of Carpenters, the Board majority held that stationary bannering was a protected activity akin to lawful handbilling, rather than unlawful picketing.  Thus, the newly reconfigured Board reasoned that stationary bannering was permissible even if the banners used were very large and targeted secondary employers.  The majority held that “[t]he banner displays here did not constitute such proscribed picketing because they did not create a confrontation. Banners are not picketing signs . . . [and] [t]he banner holders did not move, shout, impede access [to], or otherwise interfere with the secondary’s operations.”

Members Schaumber and Hayes issued a strong dissenting opinion, stating:

[T]he Act also recognizes the significant disruption and economic harm that can follow when labor disputes embroil neutral parties. Congress addressed these competing interests by enacting and subsequently amending the provisions of Section 8(b)(4), which prohibit a range of coercive secondary boycott activity. The Board has hewed over the years to the legislative purpose underpinning Section 8(b)(4) by applying the statutory language flexibly and pragmatically to prevent often creative attempts to circumvent the scope of the Act’s prohibitions.

The dissent further stated:

The majority does not limit its holding to the facts of this case, which were submitted on a stipulated record. Instead, our colleagues capitalize on the opportunity to narrowly circumscribe the Board’s historically expansive definition of “picketing.” Further, in assessing whether any conduct that does not involve traditional picketing is proscribed by Section 8(b)(4)(ii), the majority will now require a showing that the union’s conduct “directly caused, or could reasonably be expected to directly cause, disruption of the secondary’s operations.” This new standard substantially augments union power, upsets the balance Congress sought to achieve, and, at a time of enormous economic distress and uncertainty, invites a dramatic increase in secondary boycott activity.

The United Brotherhood of Carpenters case provides a clear example of how the newly reconfigured Board may construe the NLRA in an effort to expand the weaponry and capabilities of organized labor.  This is but one of many cases pending before the newly reconfigured Board.  This reconfigured Board will also decide cases, such as the remanded case Register Guard, which have the potential to even further tilt the balance of labor law in favor of the unions.

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