[co-author: Tracey O’Brien ]

On May 17, 2019, the Office of the General Counsel (GC) released an advice memorandum dated December 20, 2018 signaling the National Labor Relations Board’s (Board) intent to continue to overturn precedent. The advice memo instructs a Regional Office to issue a complaint against the International Brotherhood of Electrical Workers, Local 134 (union) for unlawful secondary boycott activities under §8(b)(4)(i) and (ii)(B) of the National Labor Relations Act (Act) in which large banners and a 12-foot inflatable cat were displayed. The release of the advice memo signals a forthcoming change in the Board’s position that would reverse the recent expansion of the right of workers and unions to engage in expressive activity.

The union’s activity against the neutral employer

The union was engaged in a primary labor dispute with sub-contractor, Edge Electric (Edge) relating to wages and benefits. Summit Design and Build (Summit), a general contractor, subcontracted the electrical work to Edge. The union admitted that their primary labor dispute was with Edge but not with Summit.

Beginning on August 13, union agents were posted as observers on the Summit worksite. On August 15-16, 2018, the union displayed a large banner with a written message indicating the existence of a labor dispute and naming Summit on the face of the banner. The union also erected a 12-foot inflatable cat depicted as “clutching a construction worker around the neck.” Edge was present at the construction site beginning on August 16, at which time Summit implemented a reserved gate system. As a result of the labor dispute, two subcontractors refused to enter the premises between August 13-15.

NLRB General Counsel recommendations

The GC made the following recommendations to a Regional Office regarding the union’s activities at the neutral employer’s worksite:

• Advised the Regional Office to issue a §8(b)(4)(i) and (ii)(B) complaint against the union for unlawful activity against a neutral employer, absent a settlement;
• Advised the Regional Office to use the case against the union to urge the Board to reconsider and overturn its previous decisions issued during the Obama administration in the following cases:
• United Brotherhood of Carpenters Local Union No. 1506, (Eliason & Knuth of Arizona) (2010) – finding that hand-billing activity and the non-confrontational display of large banners near neutral employer locations did not create a barrier and does not violate the NLRA secondary boycott provisions.
• Sheet Metal Workers Local 15(Brandon Regional Medical Center) –finding that a large inflatable rat positioned outside of a hospital that did not physically block ingress or egress to the hospital without confrontational or disruptive activity by union agents does not violate the NLRA secondary boycott provisions.
• Southwest Regional Council of Carpenters (New Star General Contractors, Inc.) –finding that large stationary banners held by union members with messages directed at the neutral employers were non-confrontational, did not constitute picketing, and does not violate the NLRA secondary boycott provisions.

Coercive conduct or persuasive communication?

According to the GC, the three cases cited above were “wrongly decided” and “inappropriately” departed from previous Board decisions regarding unlawful secondary boycott activities. Section 8(b)(4)(ii)(B) of the Act prohibits conduct by unions or its agents that threatens, coerces, or restrains a neutral or secondary employer from doing business with another business with which the union has a primary labor dispute. In seeking to reverse the Board’s rulings, the GC distinguished between intimidating conduct and persuasive communication to determine whether the secondary boycott activity was lawful.

The GC construed unlawful conduct under the Act as coercive economic retaliation against a neutral employer. The GC also asserted that historical precedent defined traditional picketing as well as signal picketing, which pressures a neutral’s employees to refuse to work, broadly and flexibly to prohibit a range of conduct, such as:

• Planting picket signs in the snow with the union’s agents watching from a parked car;
• Disorderly conduct in front of neutral’s business and attaching large banners to a neutral’s building; and
• Posting stationary agents with signs near a neutral employer’s entrance.

In contrast, the GC acknowledged that the distribution of handbills lacks a confrontational element, relies on persuasive communication and is lawful.

In the advice memo, the GC also favorably referenced the position of a dissenting Board member in the above three cases who argued that:

• Bannering and the use of inflatables at the entrance of a neutral’s business is confrontational in that the objective is to dissuade the public from entering the business by using coercive conduct rather than through a persuasive message.

• The use of inflatable rats and banners is a coercive measure used to intimidate third parties and to signal the existence of an invisible picket line that discourages third parties from crossing, including neutral employees.

Consequently, the GC recommended that the Regional Office urge the Board to conclude that the union’s use of an inflatable cat and a large banner are tantamount to unlawful secondary picketing and signal picketing under the Act because:

• The inflatable cat, depicted as clutching the neck of a construction worker, was intimidating.

• The union’s objective was to cause Summit to discontinue its working relationship with Edge.
• The banner and cat created a symbolic confrontational barrier to those entering the construction site.
• The banner near the construction site was an attempt to signal neutral employees to strike because the banners failed to name Edge as the object of the labor dispute.
• Posting the large misleading banner and “intimidating violent cat strangling a construction worker” went beyond persuasion and became unlawfully coercive.
• The union’s conduct was entitled to less protection under the First Amendment because the conduct constitutes labor or commercial speech, and the government has a substantial interest in regulating such speech due to its effect on interstate commerce.

Subsequently, the case was informally settled, and the Board had no occasion to consider the GC’s recommendations.

Board presented with new opportunity to expand definition of unlawful secondary activity

Following the May 2019 release of the GC’s advice memo, however, in the case of International Brotherhood of Electrical Workers Local 98 and Shree Sai Siddhi Spruce, LLC d/b/a Fairfield Inn and Suites by Marriott (Fairfield), an ALJ declined to accede to the GC’s position with respect to inflatables as recommended in the advice memo. In Fairfield, union agents distributed union flyers in front of a hotel, placed stationary inflatable rats which displayed no written messages near the entrance of a neutral employer-hotel, and used a bull horn to broadcast messages over a three-hour period that was loud enough to cause hotel guests to complain and to request a change of room. After the union admitted the hotel was a neutral employer and not the target of their primary labor dispute, the sole issue before the ALJ was whether the union’s conduct violated the secondary boycott provisions under the Act.

Despite the recommendations in the GC’s advice memo, the ALJ concluded that use of inflatable rats is protected expressive activity, basing his ruling on witness testimony, a video of the union activity in front of hotel, and Board precedent. The ALJ asserted that while the inflatable rat has a derogatory connotation, its inference is similar to the word “scab,” an unflattering connotation for a non-union worker. As such, use of the rat constitutes robust, protected speech in another form. His conclusion noted that the display of the rats contained no coercive attributes or written messages, and the union agents’ activity of walking in front of the hotel and handing out flyers was not intimidating and did not constitute picketing. Unlawful picketing instead requires persistent patrolling by multiple individuals who form a physical or symbolic barrier that is intimidating or coercive. Finally, the ALJ noted that any minimal movement of the hotel tables on the side walk to set up the inflatable rat when the outdoor restaurant was closed also did not convert the union’s actions to unlawful coercive activity. The use of the rats simply reinforced the message contained in the handbills that non-union labor was used to perform hotel renovations.

The use of the excessively loud bullhorn over a three-hour period by the union agent resulting in complaints by hotel guests who requested a change of room and compensation by the hotel was, however, another story. The ALJ found that conduct was coercive, had a negative impact on the operations of the secondary employer and as such, is prohibited under the Act.

What does this mean for employers?

In accordance with NLRB rules, the ALJ decision was transferred to the Board providing the Board with an opportunity to implement the GC’s recommendations and to reverse Obama-era precedent with respect to the use of inflatables and banners under the Act. Until the Board concludes otherwise, however, the previous Board decisions that designate the use of inflatables and banners during labor disputes as lawful non-picketing secondary activities remain in place.