Excerpted from Maryland Employment Law Letter, written by attorneys at the law firm Whiteford, Taylor & Preston L.L.P.

Anyone who has spent time in downtown Baltimore over the past several months has become acutely aware of the activities of the Mid-Atlantic Regional Council of Carpenters in opposing work being given to nonunion contractors and subcontractors. The union frequently has picketed, along with hired nonunion picketers, at various locations in which nonunion work is being performed and has brought a pickup truck with a large inflatable rat to be parked in front of the offending buildings. Recently, a law firm on the receiving end of the union's tactics tried to stop them by taking the union to court, but its action backfired.

Facts

Goodell, DeVries, Leech & Dann, LP, is a prominent litigation boutique firm that leases three floors of the Alex Brown Building at One South Street in Baltimore. The firm employed Constantine Commercial Construction to perform certain renovations in its offices, and Constantine brought in Starkey Construction, Inc., as a subcontractor to perform the dry-wall work. The union's labor dispute was solely with Starkey.

The union picketed and displayed the rat while Starkey worked. After the subcontractor had completed its work and left the site, the union ceased the picket line at the building and removed the inflatable rat. It continued to display a large banner that read "Shame on Goodell, DeVries, Leech & Dann, LLP" and "Labor Dispute," however. The banner was held by several union members who didn't march or make any sounds.

The law firm filed a charge with the National Labor Relations Board (NLRB) alleging that the union was engaged in a secondary boycott, which is forbidden under the National Labor Relations Act (NLRA). The general counsel of the NLRB agreed with the firm and sought to bar the activity under § 10(I) of the NLRA, which allows the Board to petition a federal court to bar such activity. Unfortunately for the firm and the general counsel, the district court declined to grant the requested injunction.

Court's reasoning

In her opinion, District Judge Catherine C. Blake recognized that the general counsel was asserting that the banner in front of the office building was designed to have the Goodell firm refrain from doing business with Starkey and thus constituted a secondary boycott. Although she acknowledged that the courts generally show deference to the NLRB in determining such issues, she held that the free-speech guarantees of the First Amendment to the U.S. Constitution aren't superseded by the NLRA.

Although the general counsel contended that the display of the banner amounted to "coercion," the courts have recognized a difference between coercive conduct and consumer boycotts, which receive First Amendment protection while coercive action is forbidden by the Act. The judge followed the distinction between handbilling, which is deemed noncoercive, and picketing, which has an inherent appearance of coercion. She believed that customers and others weren't intimidated by walking past someone who's attempting to hand them a handbill whereas a picket line may in fact have a coercive effect.

The general counsel also argued that the use of a large banner by the union members was more analogous to picketing than to handbilling. The judge found, however, that there was no evidence that the presence of a banner deterred anyone from entering a building and that such banners were "mere persuasion" and not coercive in nature. According to her, the banner was more like a highway billboard, which is clearly noncoercive. As a result, she denied the request for an injunction. Wayne R. Gold, Regional Director of Region 5 of the National Labor Relations Board v. Mid-Atlantic Regional Council of Carpenters, Civil No. CCB-05-3147, D.C. Md. (December 22, 2005).

Bottom line

The fact that a court will allow unions to hold up large banners near the entrance of an office building and find such conduct not to be a secondary boycott prohibited by the NLRA should be of great concern to businesses and property owners whose tenants have been targeted by a union.

Copyright © 2006 M. Lee Smith Publishers LLC. This article is an excerpt from MARYLAND EMPLOYMENT LAW LETTER. Maryland Employment Law Letter is not intended to provide legal advice or opinions, but rather to provide information about current developments in Maryland employment law. Questions about individual problems should be addressed to legal counsel.