In what it characterized as an issue of first impression, the National Labor Relations Board (Board) recently held that "bannering" falls outside of the prohibition against unlawful secondary activity contained in Section 8(b)(4)(ii)(B) of the National Labor Relations Act (Act). United Brotherhood of Carpenters and Joiners of America, Local Union No. 1506 and Eliason & Knuth of Arizona, Inc., 355 NLRB No. 159 (Aug. 27, 2010).

The case involved three separate unfair labor practice charges that neutral employers filed against the union in 2003. The union had primary labor disputes with non-union subcontractors who performed work at facilities the neutrals or their affiliates owned. In each case, union members stationed near the entrances to the subject facilities distributed flyers and held banners, measuring 3 or 4 feet high and 15 to 20 feet long, which read "SHAME ON THUNDERBIRD MEDICAL CENTER," "SHAME ON NORTHWEST MEDICAL CENTER," and “DON'T EAT 'RA' SUSHI." Each of the banners also included the statement, "Labor Dispute."

A 3-2 majority of the newly constituted Board narrowly construed the Act's secondary boycott provisions and held that stationary bannering was not illegal because it did not "threaten, coerce, or restrain" any person from doing business with a neutral employer. The majority reasoned that, since there was no violence, intimidation, blocking of ingress or egress or similar direct disruption, there was no coercion or restraint, "as those words are ordinarily understood."  

The majority distinguished bannering from unlawful picketing on the basis that the latter entails not just the holding of signs, but the "persistent patrolling of the picketers back and forth in front of an entrance to a work site, creating a physical or, at least, a symbolic confrontation between the picketers and those entering the worksite." The banners, which were directed primarily at passing motorists, were insufficiently "confrontational," the majority held. Because the message was addressed principally to the public, rather than to other unionized employees, the Board also rejected the General Counsel's contention that, at a minimum, the bannering constituted unlawful signal picketing.

The Board's two dissenting members characterized the bannering as simply a "creative variation on classic picketing." They endorsed a broader and more flexible approach, taking into account the objectives of the Act, namely, preventing the spread of labor discord by coercing a neutral party to "join the fray." The dissenters argued that the bannering was the "confrontational equivalent of picketing" insofar at it was aimed at threatening, restraining, and coercing customers from doing business with the targeted neutral employers.

This decision is significant because it expands a unions' available economic weapons and will likely lead to more activity directed at or involving neutral employers.