Court Upholds Union Right to Banner Secondary

April 29, 2006 by Beeson Tayer & Bodine

The Ninth Circuit Court of Appeals has rejected the NLRB’s conclusion that a union’s banner displayed in front of a secondary employer constituted a secondary boycott. In the process, the Court has confirmed the free speech right of unions and their members to inform the public of a labor dispute in front of secondary businesses not directly involved in the dispute. In Overstreet v. Carpenters Local 1506, 409 F.3d 1199, the Carpenters protested several retail businesses that used non-union contractors. On public sidewalks outside the businesses, the Carpenters erected large, four by fifteen foot banners, that stated: “LABOR DISPUTE: SHAME ON [NAME OF RETAILER]” and, outside another business – a restaurant – it read “LABOR DISPUTE: DON’T EAT AT ANTHONY’S FISH GROTTO”. The Union also passed out pamphlets that explained the dispute involved a contractor and not the retail businesses themselves. Naturally, the businesses filed ULP charges, and the NLRB sought an injunction against the Carpenters in court claiming the banners were the equivalent of unlawful secondary pickets. The Ninth Circuit rejected the claim, ruling that an injunction would unduly risk infringement of the union’s constitutional free speech rights, because:

• The demonstration took place on public property and was far away from the retailers’ entrances;
• The banners faced the public, and not the retailers, indicating the Carpenter’s actions were not aimed at the retailers’ employees or intended to block access by patrons;
• The Carpenters did not patrol or picket in front of the retailers, or make any physical or “symbolic” barriers between the entrances and the public; and
• The banners contained no false assertions.

This decision represents a setback for the NLRB’s attempt to label the display of large banners in front of secondary employers as illegal picketing, but unions must be careful when going beyond the use of traditional handbills when pressuring secondary employers. If any of the factors the court relied on in this case are not present, a union displaying a banner near a secondary employer runs the risk of being slapped with a secondary boycott complaint.

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