Bannering is a pressure tactic used by organized labor in which a banner is positioned outside a construction project owner’s or construction-related firm’s business with accusations that often falsely claim that the business uses poor labor practices. Bannering usually occurs in response to a business’s or community’s decision to hire a contractor whose workers have chosen not to join a union. Unions use bannering to pressure the project owner into hiring unionized contractors and hiring union labor. The banners often contain the words “shame on” followed by the business’s name and, while sometimes held by union members, are often brandished by low wage nonunion temporary workers with no benefits. The unions even hire homeless people, who labor officials exploit to deprive opportunities from qualified local contractors.
How does Bannering Work: Big Labor’s Playbook
While no two bannering campaigns are the same, there is often a predictable series of events that leads to union bannering:
- The union sends the targeted contractor a letter – often with no supporting documentation – claiming that employees working on a specific project or for an individual employer are paid substandard wages and benefits. The letter demands that the targeted employer provide private employee payroll information to the union within a specified number of days.
- The union sends the construction owners who have hired the targeted contractor a notice claiming there is a labor dispute, even if no employees of the targeted firm are involved in the so-called dispute. The notices often claim that the project owner is using a contractor who is paying their workers substandard wages and will be subject to demonstrations.
- The union stages protests at either the construction owner’s property or the construction firm’s place of operation drawing attention to the often fictional labor dispute. These protests typically include a large banner declaring “shame” on either the project owner or contractor, hand billing and sometimes other disruptive activity.
The ultimate goal behind this process is to intimidate project owners, job creators and local communities.
The Southwest Regional Council of Carpenters uses bannering techniques most frequently; however, many other unions employ this tactic as well.
“The Rat” and Other Outlandish Tactics
Unions utilize other forms of outlandish street theater, in addition to bannering, to bully construction owners and contractors in their communities. These tactics include the use of inflatable rats and noisy public demonstrations. These outlandish forms of street theater are designed to draw attention to the union’s false claims and intimidate project owners and contractors.
Bannering and the Law: How is this Legal?
The National Labor Relations Board (NLRB) and the courts have declared that stationary bannering is usually legal so long as the banners do not “create a confrontation.” See United Brotherhood of Carpenters Local 1506 (Eliason & Knuth) (NLRB 2010), and subsequent cases. Although the NLRB has yet to identify what it considers “confrontational,” bannering often occurs along with unlawful picketing, which can successfully be challenged. Picketing typically is characterized by groups of people patrolling at or near an entrance to a jobsite, usually carrying signs and acting in a confrontational manner.
Below are some of the actions that generally will cause picketing to be found unlawful:
- Trespassing on private property
- Blocking entrances
- Mass demonstrations or disruptive conduct, such as using bullhorns to disturb or offend neutral individuals
- “Secondary” picketing, which involves coercing neutral customers or contractors, including picketing at an entrance “reserved” for neutrals
- Picketing for more than 30 days with intent to unionize employees without filing an election petition
The merit shop construction industry won a victory on March 29, 2012 when a federal court of appeals in Georgia upheld a jury verdict that awarded Fidelity Interior Construction, Suwanee, Ga., with $1.7 million against the Carpenters’ union. The jury found that the Carpenters conducted an illegal “area standards” campaign that included bannering, picketing and handbilling at buildings where Fidelity was, had or might be working.
In the appeals court decision, Fidelity Interior Construction v. Southeastern Carpenters Regional Council, the court rejected the union’s argument that its tactics were only First Amendment “free speech.” Instead, the court found that the union campaign was designed to coerce third parties to stop doing business with Fidelity and that the actions violated the federal secondary boycott law, which is designed to protect neutral customers and other third parties from coercive union activities.
This case could set an important precedent for construction firms and their customers.
A summary of the judgment is available here (PDF) and the full opinion can be downloaded here (PDF). A news release issued by Wimberly, Lawson, Steckel, Schneider & Stine, P.C., sums up the case here (PDF).