The National Labor Relations Act (“NLRA”) protects employers from becoming embroiled in labor disputes which are not their own. These innocent employers are referred to as secondary or neutral employers while the employers in a labor dispute are referred to as primary employers. To add pressure on primary employers, unions often pressure neutral employers and employees. This is particularly common in the construction industry where primary and neutral employers and their employees work in close proximity.
Unions have eye-catching ways of drawing attention to their labor disputes. Here is just one of them:
The NLRB recently issued advice to its regional offices on how to handle unfair labor practice claims in situations where a union uses big banners and inflatable rats and cats – like the one above – to pressure neutral employees not to report for work.
Summit Design + Build was the general contractor for a project in Chicago. It subcontracted the project’s electrical work to Edge Electric. Edge and IBEW Local 134 (Union) became entangled in a primary labor dispute over Edge’s failure to pay area standards pay and benefits.
Over three days in August 2018, the Union put up a large yellow banner that read LABOR DISPUTE: SHAME SHAME.” Just below that the banner read “SUMMIT DESIGN AND BUILD.” The Union also set up an inflatable fat cat clutching a construction worker by the throat. The cat was about 12-15 feet high. The Union positioned the banner and the cat about 15 feet from the project’s entrance.
Summit told the Union that Edge would not be working on site at least one of those three days. Union representatives distributed handbills that indicated the Union’s labor dispute was with Summit. Two subcontractors refused to work on the job site because of the union’s activities. The Union admitted that its activity was aimed at Summit even though it had no primary labor dispute with Summit.
The NLRB advice memo concluded that the Union’s activity constituted an unfair labor practice and that a complaint should issue against the Union. Its activities – summed up here:
“The Union agents’ holding of a large, misleading banner—the functional equivalent of a picket sign—and the posting of a large, hostile-looking cat strangling a worker at the entrance to the site, were each tantamount to picketing because each created a symbolic, confrontational barrier to anyone seeking to enter or work at the construction site.”
violated the NLRA’s prohibitions against encouraging neutral employees to withhold their labor and against coercing secondary employers (Summit) from doing business with any other business (Edge).
Finding that the Union’s activities were the functional equivalents of picket signs and picketing was key because picketing is viewed – under Board law and labor history – as more confrontational and coercive. Picketing is more regulated than other types of union activity, like hand-billing. Picketing encompasses more than marching back and forth while carrying with signs in the minds of the authors of the memo.
Also, the false claim on the banner that the labor dispute was with Summit also rendered the Union’s activity less deserving of legal protection under the Act and the First Amendment.
Finally, the advice memo urged the NLRB to reconsider and reverse three specific decisions issued in 2011 that narrowed the definition of “picketing” and thereby gave unions leeway to engage in secondary activity like what occurred Chicago. The memo spelled out the reasons why those three decisions were wrongly decided in light of prior legal precedent.
The memo itself is not a change in NLRB precedent. It only represents the current view of the NLRB’s General Counsel in similar pending and future cases. In fact, an NLRB Administrative Law Judge recently refused to find that a union engaged in unlawful activity using an inflatable rat and loud bullhorns against a neutral employer.
The memo, however, may serve as a road map for the Trump NLRB to address future secondary activity cases. As a guide, the memo points to a better place for employers: a place where the rights of secondary employers not to be drawn into others’ labor disputes and the rights of unions to pressure primary employers have been recalibrated to be more fairly balanced.
Tim Murphy is a partner with Skoler, Abbott & Presser, P.C. in Springfield, Massachusetts. The contents of this article are for information purposes only and should not be construed as legal advice.