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Union Protests On Construction Sites: When Bannering Becomes Unlawful Secondary Activity

With the summer now upon us, many employers have broken ground on expansion, renovation, and other construction projects. Embarking on a construction project often involves engaging in several new multi-level relationships, and introducing hundreds of workers, suppliers, and subcontractors, onto an organization's property.

In addition to the obvious risks and unpredictability inherent in construction projects, organizations are wise to prepare for the often complicated - and sometimes adversarial - personnel dynamics on a construction site.

Bannering vs. Unlawful Picketing

In recent years, unions have used a tactic on construction jobsites known as “bannering” to protest an organization's selection of a non-union contractor or subcontractors on a construction site.

Bannering often involves the display of a large banner with an inflammatory slogan that “shames” the organization for using non-union labor on a project. The protesters also may distribute leaflets and handbills, or even exhibit a large inflatable rat colloquially known as “Scabby,” to pressure the employer to replace the existing contractor with one who uses union-represented workers. The employer in these circumstances is a “secondary” or “neutral” employer, while the contractor or subcontractor utilizing non-union workers is the “primary” employer (i.e., the organization whose employment practices are disputed by the protesters).

While the National Labor Relations Act (the “Act”) prohibits unions from engaging in coercive and/or confrontational secondary pressure against neutral employers, such as the construction project owners described above, union bannering - even when involving such attention-grabbing gimmicks as Scabby the Rat - is not considered unlawfully coercive under current National Labor Relations Board (“Board”) precedent. As such, stationary bannering displays on public sidewalks in front of an employer's business are protected by the First Amendment, as long as the protestors are not confrontational or threatening, do not block access to the employer's property, and do not involve patrolling or mass demonstrations that rise to the level of unlawful picketing.

Recommendations For Employers

The Board's current General Counsel, Peter Robb, has indicated an interest in revisiting whether inflammatory secondary bannering - and particularly the use of Scabby - violates the Act's prohibition on secondary boycott activity.

In the meantime, employers should consider addressing the possibility of bannering activity during the pre-construction planning stages of a development project. In particular, employers should consider including, in all construction contracts, a “labor harmony” provision, obligating the contractor to use all reasonable efforts to maintain good labor relations on a project and a dispute-free jobsite.

If a union engages in bannering on an employer's jobsite, the employer should carefully monitor the activity (but avoid recording and photographing lawful, peaceful demonstrations) for coercive conduct, including the following: trespassing on the employer's property; blocking access to the employer's business; violence and/or threats; disruptive conduct, such as the use of bullhorns or other noise-amplifying devices; and mass demonstrations involving patrolling or marching. These activities can elevate lawful bannering activity to unlawfully coercive secondary picketing, in which case the employer should be prepared to file an unfair labor practice charge with the Board and request injunctive relief.

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If you have questions regarding preparing for construction projects, or any other labor law issues, please feel free to contact one of our experienced labor attorneys.