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Recent NLRB Decision Reinforces that Most “Bannering” Does Not Violate the NLRA

Over the past 12 months, the National Labor Relations Board has considered whether certain union activities directed at a “secondary employer”—an employer doing business with the “primary employer” with which the union has a dispute—violated the National Labor Relations Act (NLRA). Section 8(b)(4)(ii)(B) of the NLRA generally prohibits “secondary activities” that are threatening, coercive, or restraining and are aimed at forcing a secondary employer to stop doing business with another person or company. Since September 2010, the Board has decided in several cases that “bannering,” a union practice of displaying a large banner outside of a secondary employer’s location, does not violate this secondary activity prohibition in the NLRA. This past spring, the Board extended its reasoning to cover other types of bannering as well, such as the display of large inflatable rats or similar balloons. This month, a majority of the Board again reaffirmed the broad, although not unlimited, protection for bannering under the NLRA and First Amendment.
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