"Shame On..." What's All this Bannering About?
Thomas R. Barton
Utah is not often the site of genuine labor-management strife. Over the last year, however, Salt Lake City has been a battleground for a labor dispute with issues on the cutting edge of the law. The dispute is between two Utah construction contractors (the "Contractors"), and local and regional chapters of the United Brotherhood of Carpenters and Joiners of America (the "Union").
Certain members of the Union began a strike against the Contractors in the spring of 2004. The Union chose to advertise their dispute with the Contractors by erecting banners throughout the Salt Lake City area. You may have seen them. The Union stations the banners on street-front public property. Union members hold them up and distribute letters (or handbills) to those who ask for them. In big red letters, the banners state "SHAME ON ... " and then list the name of a business. In smaller black letters, the banners also say "Labor Dispute." However, most of the businesses have no direct labor dispute with the Union. These companies simply do business with the Contractors. Only the handbills reveal that the dispute is really between the Union and the Contractors.
The Contractors and businesses filed unfair labor practice charges against the Union with the National Labor Relations Board (the "NLRB"). They alleged that the Union's bannering violated the National Labor Relations Act (the "NLRA") because it constituted an unlawful "secondary boycott"-meaning that the Union directed economic coercion against "neutral" employers. The Union's position was that the bannering is peaceful speech protected by the NLRA and the First Amendment. Neither the NLRB itself nor the U.S. Supreme Court have addressed the legality of this type of bannering.
The NLRB issued an agency complaint against the Union, which was heard by an administrative law judge ("ALJ"). The NLRB also filed a lawsuit in Utah's Federal District Court to stop the bannering immediately. The Union prevailed in both forums. See Benson v. United Brotherhood of Carpenters, 337 F.Supp.2d 1275 (Utah, 2004); Southwest Regional Council of Carpenters, Cases 27-CC-877 et al., 2004 NLRB LEXIS 660. The ALJ and the court determined that the bannering was protected by the First Amendment, and therefore did not violate the NLRA. The ALJ and the federal court also relied on the NLRA's broad definition of the term "labor dispute," and concluded that the companies were part of a labor dispute. Therefore, the ALJ and the court determined that banners themselves were truthful.
The Union continues to banner here in Salt Lake City. It has also engaged in bannering campaigns in other areas with similar legal results. In June, the Ninth Circuit Court of Appeals found in favor of the Union in Overstreet v. United Brotherhood of Carpenters, 409 F.3d 1199 (9th Cir. 2005).
However, the Union has not convinced everyone that its bannering is protected by the First Amendment and the NLRA. Judge Kleinfeld dissented in the Ninth Circuit case, and two other administrative law judges have ruled against the Union. One of their arguments is that the banners are "fraudulent speech," because any reasonable person reading the banner would think that the company named on the banner-not some other company-had a primary labor dispute with the Union. The only way for this false impression to be corrected is for the passerby to stop, walk over to a Union representative and ask for a handbill. However, if the passerby did not take the time to do this, and most did not, the passerby would be left with the impression that the Union was accusing the company on the banner of treating its employees shamefully. And this was not the case.
Recently the Union has taken its bannering a step further by targeting companies that don't do business with the Contractors. The banners are the same. But the handbills reveal that the company named is a potential tenant in a building where one of the Contractors is slated to perform work. According to the Union, the company being bannered is guilty of "thinking about profiting from unfair labor practices." By this measure, most of the population might be subject to bannering.
As the labor dispute between the Union and the Contractors drags on, it will be interesting to see if the Union continues to test the limits of what is protected by the NLRA and the First Amendment, or whether a decision on this issue is reached by the NLRB or the Supreme Court. In the meantime, the public should remain mindful of the fact that the banners are merely editorial soundbites, not the whole story.
Certain members of the Union began a strike against the Contractors in the spring of 2004. The Union chose to advertise their dispute with the Contractors by erecting banners throughout the Salt Lake City area. You may have seen them. The Union stations the banners on street-front public property. Union members hold them up and distribute letters (or handbills) to those who ask for them. In big red letters, the banners state "SHAME ON ... " and then list the name of a business. In smaller black letters, the banners also say "Labor Dispute." However, most of the businesses have no direct labor dispute with the Union. These companies simply do business with the Contractors. Only the handbills reveal that the dispute is really between the Union and the Contractors.
The Contractors and businesses filed unfair labor practice charges against the Union with the National Labor Relations Board (the "NLRB"). They alleged that the Union's bannering violated the National Labor Relations Act (the "NLRA") because it constituted an unlawful "secondary boycott"-meaning that the Union directed economic coercion against "neutral" employers. The Union's position was that the bannering is peaceful speech protected by the NLRA and the First Amendment. Neither the NLRB itself nor the U.S. Supreme Court have addressed the legality of this type of bannering.
The NLRB issued an agency complaint against the Union, which was heard by an administrative law judge ("ALJ"). The NLRB also filed a lawsuit in Utah's Federal District Court to stop the bannering immediately. The Union prevailed in both forums. See Benson v. United Brotherhood of Carpenters, 337 F.Supp.2d 1275 (Utah, 2004); Southwest Regional Council of Carpenters, Cases 27-CC-877 et al., 2004 NLRB LEXIS 660. The ALJ and the court determined that the bannering was protected by the First Amendment, and therefore did not violate the NLRA. The ALJ and the federal court also relied on the NLRA's broad definition of the term "labor dispute," and concluded that the companies were part of a labor dispute. Therefore, the ALJ and the court determined that banners themselves were truthful.
The Union continues to banner here in Salt Lake City. It has also engaged in bannering campaigns in other areas with similar legal results. In June, the Ninth Circuit Court of Appeals found in favor of the Union in Overstreet v. United Brotherhood of Carpenters, 409 F.3d 1199 (9th Cir. 2005).
However, the Union has not convinced everyone that its bannering is protected by the First Amendment and the NLRA. Judge Kleinfeld dissented in the Ninth Circuit case, and two other administrative law judges have ruled against the Union. One of their arguments is that the banners are "fraudulent speech," because any reasonable person reading the banner would think that the company named on the banner-not some other company-had a primary labor dispute with the Union. The only way for this false impression to be corrected is for the passerby to stop, walk over to a Union representative and ask for a handbill. However, if the passerby did not take the time to do this, and most did not, the passerby would be left with the impression that the Union was accusing the company on the banner of treating its employees shamefully. And this was not the case.
Recently the Union has taken its bannering a step further by targeting companies that don't do business with the Contractors. The banners are the same. But the handbills reveal that the company named is a potential tenant in a building where one of the Contractors is slated to perform work. According to the Union, the company being bannered is guilty of "thinking about profiting from unfair labor practices." By this measure, most of the population might be subject to bannering.
As the labor dispute between the Union and the Contractors drags on, it will be interesting to see if the Union continues to test the limits of what is protected by the NLRA and the First Amendment, or whether a decision on this issue is reached by the NLRB or the Supreme Court. In the meantime, the public should remain mindful of the fact that the banners are merely editorial soundbites, not the whole story.
Copyright 2005. Published for general informational purposes only, and should not be construed as legal advice. If you need legal advice please consult with your attorney.