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Bannering Tactics and How to Defend Yourself

On August 27, 2010, the National Labor Relations Board (NLRB) unleashed another weapon to the union arsenal. The NLRB ruled that “bannering” did not violate the National Labor Relations Act (NLRA) and created another “legal” means for unions to put pressure on their targets. So far, in 2011, unions have proved that this is a missile they have no problem firing.

Ricardo Torres President & CEO - PSLC

4/15/2011

On August 27, 2010, the National Labor Relations Board (NLRB) unleashed another weapon to the union arsenal. The NLRB ruled that “bannering” did not violate the National Labor Relations Act (NLRA) and created another “legal” means for unions to put pressure on their targets. So far, in 2011, unions have proved that this is a missile they have no problem firing.

It is very interesting that this case went in front of the National Labor Relations Board. The union was meticulous and purpose driven when they set up the bannering attacks that went before the NLRB. Contrary to using their normal tactics of creating a hostile environment, they used a small group of people and simply stood there with their signs without saying anything other than “here is some information” and handing out flyers. It was almost like they were daring their targets to file a ULP. They did file and it led to a decision from the Board stating that bannering was within the union’s rights per the National Labor Relations Act (NLRA).

Carpenter’s unions have already begun using this tactic on a regular basis. Our inside information tells us that several other unions are planning on using this tactic as it has proven to be effective. It is important that you understand what this tactic is, what you can legally do to prevent it and what you can do to minimize your risks.

What is Bannering?

In a bannering attack, unions do not chant, yell or engage in the typical union conduct associated with picket lines. This is because unions know that bannering is not considered to be “coercive” by the NLRB, which would violate NLRA Section 8(b)(4)(ii)(B), while at the same time creating an impact similar to a secondary boycott (which is not legal) because the presence of the union by itself intimidates people.

Bannering involves placing on the property of a neutral or secondary employer, a large stationary sign indicating a “Labor Dispute” which leads people into believing there is a strike. The large and very obvious banner might be held by 2 or 3 (or more) union “representatives” who may be armed with a truckload of “informational” flyers to distribute to onlookers. There could be several very large banners so long as the union “representatives” do not create an environment that may be viewed as coercive by the NLRB. Trust me when I say they are prepared to push the envelope on this tactic.

These “banners” contain negative content about the business or business owner from the building they have “peacefully” set up shop with (often across the street). But, these business owners are not the official target of the union. They are businesses or business owners who do business with their targets but the effect could be (and often is) the same. The union is trying to create forced pressure on their true target by hampering their client’s ability and/or desire to do business with them. And it is working.

Why do unions use bannering tactics?

This all ties in to a previous topic that was covered in Confessions of a Union Organizer where I discussed the reasoning behind why a union would want to put a business under and sacrifice the employees they are trying to protect, or why they would put a company out of business after failed attempts to organize their workers. The answer is fear. They want to create an atmosphere of fear so that the next company they try to organize simply caves in. They want other business owners to know that they cannot win a union campaign if they cannot operate their business and make a profit. They want business owners to know how much money they would spend to fight them.

The good news here is that by being proactive a good business owner can minimize the risk of this type of attack and minimize the dollars spent fighting it and the solutions are simply good business practices.

My company has won several union campaigns, should I worry?

You have to be prepared for a retaliatory attack as an example of force by the union. Does this mean it is going to happen 100% of the time? No, but you should be aware that the union is increasingly using this method to set an example. It doesn’t cost much to prepare (and in fact this preparation is good for business) compared to how much it will cost if they do make you a target with the mindset of shutting down your operations.

I once had a client where the International Union of Operating Engineers (IUOE) worked hard for over 4 years to shut down operations of an employer who won a strike against the union. The employees eventually decertified the union and had two representation elections. The union then attacked their clients costing them well over 10 million dollars, knowing that if they went out of business then the company who replaced them would more than likely allow the union to organize (or directly hire union labor) rather than face the same fate as the previous company.

I have no history with the unions, why should I worry?

If you have no history with the unions but are in a high risk industry such as healthcare, hospitality or building/construction you are a vulnerable target. Unions look at these industries because disruptions in business such as “bannering” are effective as they don’t simply affect the business owners or Board of Directors. These tactics affect their customers. Because of this vulnerability or soft underbelly, unions leaders sit in their headquarters during strategizing sessions and pinpoint which companies within these industries they would rather see buried so that it would make room for new companies who will have knowledge of the attack and will be fearful of the union.

What can I do to prevent bannering?

There is little that you can legally do to actually prevent a union from bannering. They have the right to free speech, with this August, 2010 NLRB ruling which basically gives the union the right to disrupt your business. What you should be doing are Business 101 practices anyways. There are 4 key steps here: Engage your employees, be good to your customers, build public support and have a battle plan established just in case your company becomes the target of union bannering.

Step 1: Engage Your Employees

You should start by doing what you are supposed to be doing anyways. Make sure your employees are satisfied with the work environment and that they are actively engaged.

Ensure that your front line supervisors are properly and actively communicating with the workers. Are they reporting issues up the corporate management ladder? If not, make some changes now. As your position moves higher in the management chain, the need to see the big picture increases. Without this information, you will be running blind.

Let your employees feel that they have a sense of ownership on pieces of the business puzzle. This is not saying that you should let the employees call the shots. Employees should feel like they are being heard and frankly, sometimes the best ideas come from your employees if you just give them the opportunity to express themselves. As a true leader, it is your job to find these ideas even though it may be like searching for a diamond in the rough. The payoff is huge. Your employees will all feel the positive energy buzz created when they see each other’s ideas put into motion. The tricky part is setting the bad ideas aside without creating an atmosphere of malcontent. You have to do it, but how you do it is an art form in itself. Simply putting your employees less than desirable ideas on the shelf isn’t enough. Even if it is a small blurb in a newsletter, you should consider reaching out to your workers who are actively participating in improving your operations as a sign of appreciation.

Of course there is much more to bringing your employees to a desirable level of active engagement (that would be another article). What is important is that by engaging your employees you are building your army to fight a smear campaign (like bannering) from the union. Treat them right and they will go to war on your side. If they are not engaged, you may be dealing with a mutiny.

Step 2: Be Good to Your Customers

This goes without saying but by constantly providing good customer service you are not just securing revenue generation but you are also building a loyalty towards your management team and your organization. This loyalty is what is absolutely necessary when dealing with bannering tactics from the union. Even the best promoters of customer service will lose clients because of this tactic. Your job is to minimize the risk by having a solid relationship in place with your customer. If you ever hit with a bannering attack, you will be apologizing to your customers. This apology will be felt as sincere when you have a sense of loyalty in place with your clients.

The worst thing you can do is to depend too much of past relationships. By maintaining a positive relationship with your customers you are effectively staying in front of any union bannering or organizing tactics (I say organizing because the goal of this pressure is to also bring in organizers from other unions to start trying to organize the secondary employees).

Step 3: Build Public Support

You are running a business in a community. You create jobs for local residents. You provide a service necessary for local residents to enjoy a high quality of life. Be proud of that fact. Every good company has a public relations aspect to them. Larger corporations hire a full time PR staff while smaller companies simply rely on guerilla marketing tactics to spread a good word about their company.

No matter what you are doing, take the necessary steps to include goodwill towards the community. Whether you donate millions to the homeless or sponsor a youth sports team, make sure the community at-large knows about it. Unions are masters at gaining public support. As a business leader or owner you need to be sure your company is too. In fact, you need to be better. Union’s find it hard to publicly defame a company who is in front of the community. The public tends to believe the ones who have a history of lending a hand. While they may be temporarily swayed by union claims, it is much easier to sway the focus back towards your community involvement if you have a history to prove it.

It is important to define or “frame” your company image rather than defend, reinvent or reframe your company after a union attacks your image.

Step 4: Have a Battle Plan Established

If you are (or ever are) a victim of bannering you need to take a few notes from the political playbook. You must build a campaign to win your customers support, your workers support and the public’s support. If you followed the previous rules, you should be fine. You may need the help of a consultant or specialist to help put the plan into action. After all, if you go to your family physician and he finds a serious problem, he/she is going to send you to a specialist. This does not make the family physician a bad doctor. In fact, it makes him a professional. He/she is providing a responsible solution by pointing you in the best direction possible for proper care.

During this phase you are going to campaign to win the hearts of your customers, workers and the general public. You are also going to provide an education to your supervisors and managers regarding how their behaviors in handling this type is situation is governed by the National Labor Relations Act. If you believe you are about to be bannered you must have a full fledged PR campaign prepared. You should know what you are going to say to your employees and to the public (and more importantly what not to say). You should develop protocols to ensure that you can operate your business effectively, including possible ingress and egress issues created by any disruptions. This may sound like a lot but it is nothing compared to what you have to do if you are caught off guard and have to play “catch up” after the union makes their move.

You have to be quick here. You should do everything possible to stay ahead of the union. Get your message across concisely and effectively. If you have the support of these groups, you in essence have recruited an army. The union does not like wars that are hard to win or that create a backlash against them. You have proven that there is no element of fear. The union cannot fight a war where fear is not their primary weapon. By doing these steps, you have proven to be a leader. The union does not like conflict with an opponent that has the propensity to win.

Final Words

As you can see, the first three steps here should be part of your standard operating procedures. The last one is something you have to take a small amount of time to plan and prepare. By following these steps, you will minimize your risks associated with the union’s latest favorite trick – bannering.