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Washington Labor & Employment Wire » NLRB Upholds Practice of “Bannering”

NLRB Upholds Practice of “Bannering”

By a 3-1 margin, the NLRB upheld the tactic of “bannering,” in which unions display large banners at construction sites of neutral employers proclaiming the existence of a labor dispute with a primary employer. Southwest Reg’l Council of Carpenters (New Star Gen. Contractors Inc.), 356 N.L.R.B. No. 88 (February 3, 2011). This tactic is intended to pressure or shame neutral, secondary employers engaging in business with the primary employer.

The three Democratic appointees constituting the majority, Chairwoman Wilma Liebman and Members Craig Becker and Mark Pearce, concluded that bannering did not constitute an unlawful secondary boycott. The majority held that the tactic 1) did not amount to signal picketing (urging employees of the neutral employer to stop work) in violation NLRA Sec. 8(b)(4)(i)(B), and 2) was not a prohibited threat, restraint or coercion of a neutral employer under NLRA Sec. 8(b)(4)(ii)(B). The Board based its decision on Carpenters & Joiners of America (Eliason & Knuth of Arizona Inc.), 355 N.L.R.B. No. 159 (2010), in which the same majority held that bannering did constitute unlawful secondary picketing because, unlike unlawful secondary picketing, the practice was not confrontational. The majority noted that the banners and related handbills at the construction sites did not call for a strike or job action, with the handbills explicitly clarifying that the union was not urging work stoppages or slow downs at the job sites of the neutral employer.

In dissent, Member Brian Hayes, the lone Republican on the Board, argued that bannering amounted to a secondary boycott and could not be distinguished from confrontational picketing. He said the majority applied an overly narrow reading of NLRA Sec. 8(b)(4) and was contrary to Board precedent and NLRA principles.