Labor Board Expands
Directed at Customers
Unions can now hassle
“neutrals” with Jumbo Banners
A step beyond DeBartolo
At the end of last month the Obama labor board, now fully constituted, held that a construction union could post sixteen foot long, stationary “FOR SHAME” banners to pressure customers of non-union contractors. United Bhd. of Carpenters, 355 N.L.R.B. No. 159 (August 27, 2010). The customers were two hospitals and a restaurant in Arizona, and when confronted with the banners filed unfair labor practice charges against the Carpenters union, alleging secondary pressure. Although the charges were filed seven years ago, vacancies at the National Labor Relations Board held up the process of adjudication and appeal. The Board, departing from precedent under §8(b)(4) of the National Labor Relations Act, ruled that stationary bannering was analogous to the handbilling deemed legal by the U.S. Supreme Court in DeBartolo Corp. v. Florida Gulf Coast Building and Construction Trades Council, 485 U.S. 568 (1988).
At each of the locations the banners were placed on a public sidewalk and faced the street rather than the neutral’s facility. The restaurant affected, RA Tempe, served Japanese cuisine, and the banner there read “FOR SHAME” at the top of the banner, then in the middle section “DON’T EAT ‘RA’ SUSHI.” At each location union representatives held the banner in place. Others passed out handbills.
In DeBartolo the union had passed out handbills to customers of a mall, asking them to boycott the mall (the first paragraph read: “PLEASE DON’T SHOP AT EAST LAKE SQUARE MALL PLEASE.”) Since this decision the Board generally has followed the path of dividing activity into handbilling and picketing. Now, in the Carpenters case, the Board has ruled (with two dissenters) that bannering belongs in the handbilling category, even if the extraordinary size and posting of union agents was arguably coercive. The Board majority found that the missing element of coercion was patrolling, and it was undisputed that there was none at any of the locations.