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Bannering was not unlawful secondary picketing
June 10, 2005 by Ross Runkel at LawMemo
It can be a fine line between free speech protected by the first amendment and secondary picketing that violates the National Labor Relations Act (NLRA). Today's issue of Employment Law Memo tells the story:
Overstreet v. United Brotherhood of Carpenters (9th Cir 06/08/2005).
The NLRB's Regional Director sued the union under NLRA Section 10(l) seeking to enjoin an alleged violation of Section 8(b)(4)(ii)(B). The trial court denied the injunction; the 9th Circuit affirmed (2-1).
The union had a dispute with three contracting companies, objecting to their failure to hire union employees and alleged failure to meet local labor standards. In an effort to induce the contractors to change their practices, the union put pressure on 18 "retailers" who did business with them. Near each retailer, the union set up a 4x15 foot banner that read "SHAME ON [NAME OF RETAILER]" in large red letters, with the words "LABOR DISPUTE" in smaller black letters on each side. Individual union members held the banners from 20 to several hundred feet from the retailers' entrances. The union members remained stationary, did not block entrances, and did not confront customers.
(1) The court announced a new standard for granting Section 10(l) injunctions. Previously the standard was highly deferential to the Regional Director: whether the Regional Director had "reasonable cause" to believe the union violated Section 8(b)(4)(ii)(B). The court adopted the same standard used in Section 10(j) cases, which is the ordinary standard generally governing issuance of injunctions, including whether the Regional Director has a "fair chance of success on the merits." Additionally, because this particular case had 1st amendment overtones, the court said there should be no deference at all to the NLRB's conclusions and that there must be a "particularly strong" showing of likely success.
(2) The court held that the Regional Director was unlikely to succeed on the merits. The union conceded that its goal was to dissuade customers from patronizing the retailers, which had the goal of encouraging the retailers to cease doing business with the contractors. Thus, the issue was whether the union's actions fit the "threaten, coerce, or restrain" portion of Section 8(b)(4)(ii)(B). Here there was no "coercing" because there was no "picketing," and no one-on-one physical interaction or communication. The court also concluded that the union was not engaged in "signal picketing" (a signal to employees of the secondary employers) because the banners were directed toward passing motorists and were not directed at employees.
(3) The court rejected the argument that the banners were fraudulent in that they used the phrase "labor dispute" - suggesting that the union had a primary dispute with the retailers rather than with the contractors. The banners were not false because the union in fact did have a labor dispute with the secondary businesses (retailers).
The DISSENT said the Regional Director was likely to prevail on the "fraudulent speech" claim because the banners falsely conveyed the message that the union had primary labor disputes with the secondary employers, that is, that the retailers were treating their employees shamefully.
My view: Let the law review articles begin.
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