The new majority of the National Labor Relations Board (NLRB)
has decided one of the oldest cases pending before the Board,
ruling in favor of unions that bannering activities at construction
sites do not constitute secondary boycott activity under the
National Labor Relations Act (NLRA) (United Brotherhood of
Carpenters and Joiners of America, Local Union No. 1506 and Eliason
& Knuth of Arizona, Inc.). Employers should be aware that this
decision has the potential to dramatically increase the amount of
secondary boycott activity at construction work sites where
non-union labor is working.
In a 3-2 decision, NLRB members Liebman, Becker and Pearce upheld
the Carpenters' Union's use of the "shame, shame,
shame" banners at construction sites where non-union
contractors were working. The Board majority found that the
Carpenters Union did not engage in secondary boycott activity when
they held 16-foot long banners near three construction sites in
Arizona. Though the banners (and accompanying handbills) declared
that specific named construction contractors at those sites paid
substandard wages and benefits, they also stated that the owners of
the businesses where the non-union contractors were working were
contributing to undermining wages and benefits paid to area workers
by using the non-union contractors.
The business owners filed unfair labor practices charges against
the Union (in 2003) on the ground that the banners sought to
involve them in the Union's dispute with the contractors thus
resulting in a secondary boycott in violation of the NLRA. However,
the new NLRB majority found that the language of the NLRA does not
suggest that Congress intended the secondary boycott language of
the NLRA to prohibit "the peaceful stationary display of a
banner."
The Board minority in dissent said that the majority went too far,
claiming that in so ruling, they have established a new standard
that secondary boycotts only occurred if the union's conduct
"caused or could be expected to cause disruption to the
secondary employer's operations." The dissenters argued
that this new standard upset the balance that Congress sought to
achieve in the NLRA and they predicted the decision will
dramatically increase the amount of secondary boycott
activity.
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