The National Labor Relations Board (“NLRB”) decided earlier this month that unions may “endorse” the boycott, divest and sanction (“BDS”) campaign against Israel without running afoul of the National Labor Relations Act’s (the “Act”) ban on so-called “secondary boycotts.” But the case did not affirm that unions actually could engage in the boycott, since that issue was not before the Board.

Nonetheless, some people inaccurately are spinning the decision as the NLRB giving BDS a green light.

The issue arose when the the United Electrical, Radio, and Machine Workers of America (the “Union”) passed a resolution endorsing BDS in August, 2015.  The Union is self-consciously radical – its website calls for “aggressive struggle,” blames “bosses and bankers,” and promises that it is “Fighting for Workers’ Rights in the New World Order.”  In addition to a slew of posts about BDS and “build[ing] solidarity” with Palestinians, the Union’s Political Action update opposes the TransPacific Partnership, defends Venezuela’s farcical “democracy” and effectively endorses Bernie Sanders:

Sanders has been a reliable friend of UE, as mayor of Burlington, congressman starting in 1991, and U.S. senator from Vermont since 2003. The leaflet linked below compares Bernie Sanders and his leading Democratic opponent Hillary Clinton on the issues of trade and jobs, workers’ rights, war, higher education, Wall Street and banks, corporate money in politics, and climate change. We included none of the Republican candidates in the comparison because all of them are much too far from UE’s positions on workers’ rights and other key issues.

The Union’s resolution did not explicitly call for a boycott or strike, or for members to take any other particular action, only for members to “become engaged” in BDS.

The Israeli anti-lawfare organization Shurat HaDin Israel Law Center brought a “charge” before the NLRB, alleging in essence that the Union’s resolution amounted to an unlawful call for a labor action because it is inherent to the BDS movement and the Union pointed members to material treating labor actions against Israel positively.

The NLRB reject Shurat HaDin’s charge, reasoning that neither the resolution nor any material linked to by the Union would reasonably be understood by the employees as a signal or request to engage in a work stoppage against their own employer.  BDS advocates are making bizarre allegations of Shurat HaDin being a Mossad front, and falsely trumpeting this decision as allowing boycotts against Israel:

Responding to the decision by the National Labor Relations Board, an independent agency of the US government, [Union] National President Peter Knowlton said that the union had “withstood attempts by the US government to silence us during the McCarthy era in the 1950s,” and was “unbowed by the latest attempt of a surrogate of the Israeli government to stifle our call for justice for Palestinian and Israeli workers.”

He added: “The NLRB’s decision is a victory for the growing BDS movement across the US, which faces increasing political attempts to silence and intimidate critics of the Israeli government. As Americans who have a constitutional right to criticize our own government, we certainly have a right to criticize and, if we choose, boycott a foreign government that is heavily subsidized by US taxpayers.”

(Emphasis added.)  This last line – that the NLRB gave the okay for unions to boycott foreign governments – did not happen.  To the contrary, the NLRB’s decision very specifically and repeatedly noted that the resolution would not be understood as calling for any specific action.

Obviously, endorsing BDS is immoral and predicated on a false understanding of the Arab/Israeli conflict.  Misrepresenting Shurat HaDin’s charge and the NLRB’s decision are part and parcel of the same effort to exaggerate Israel’s imperfections and shield its attackers.

Union Endorsement

According to the Advice Memorandum signed by NLRB Associate General Counsel Barry J. Kearney, the Union’s Convention:

1.      Calls on Congress and the Administration to end all U.S. military aid to Israel; and to pressure Israel to end the occupation of the West Bank and East Jerusalem and the siege of Gaza and negotiate a peace agreement on the basis of equality, democracy, and human rights for the Palestinian and Israeli people, including Palestinian self determination and the right of return for refugees.

2.      Endorses the BDS movement and urges the union at all levels to become engaged in BDS and the movement for peace, justice and equality between the Palestinians and Israelis.

The first component is, of course, calling on Congress to force Israel to commit national suicide. It does not speak to the Union’s members or subsidiaries at all.

The second component specifically calls for union members to “become engaged” in the boycott effort. The NLRB explained further that the Union’s website discussing the resolution linked to a “boycott list”specifying products that supporters should boycott.

The NLRB Decision

In October, the Shurat HaDin filed a charge alleging the Union violated Section 8(b)(4)(i)(B) of the Act by advocating a “secondary boycott.”  In its allegations, Shurat HaDin pointed out several previous instances of organized labor actually striking and refusing to unload Israeli goods, picketing against dockworkers unloading Israeli goods, and explicitly promoting the “academic boycott” of Israel.

The NLRB explained the applicable law:

Section 8(b)(4)(i)(B) of the Act makes it unlawful under certain circumstances for a labor organization or its agents to engage in, or induce or encourage employees to engage in, a strike or other work stoppage against their own employer.  There are two elements to any violation of this provision.  First, the labor organization must “engage in [a work stoppage] or induce or encourage” the employees of a neutral employer to engage in a work stoppage, i.e., refuse in the course of employment to ‘use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services.”  Second, the objective of the proscribed conduct must be to ‘force or requires any person to cease doing business with any other person.”  This objective, often referred to as a secondary objective, has been interpreted to mean having the purpose of pressuring a neutral party to intercede in a union’s dispute with its direct target.  The Supreme Court . . . held that secondary activity arising from a union’s political protest, as opposed to a labor dispute with an employer, is within the scope of Section 8(b)(4)(i)(B)’s prohibition.

(Emphasis added, footnotes omitted.)  In addition:

The words “induce or encourage” are broad enough to include “every form of influence and persuasion.”  The question of whether statements by a labor organization or its agents violated the Act under Section 8(b)(4)(i)(B) turns on whether “such statements would reasonably be understood by the employees as a signal or request to engage in a work stoppage against their own employer.”  Activity intended only to educate consumers, secondary employers, or secondary employees, and even prompt them to action—so long as the action is not a cessation of work by the secondary employees—is lawful.

(Emphasis added, footnotes omitted.)

The NLRB decided that the Union did not violate the Act “because employees would not reasonably understand the Union’s resolution as a signal or request to engage in a work stoppage against their own employer.”

The NLRB gave three reasons for its decision.  First, there is no express call for a work stoppage against employees’ own employer.  Second, neither the text of the resolution not the material linked from the website contained a request that the employees engage in a work stoppage against their own employer.

Third, the material Shurat HaDin submitted that reflects actual work stoppages induced by the BDS campaign would not have caused employees to interpret the resolution as requesting a work stoppage because those material weren’t linked or referenced by the Union and there is no reason to believe employees knew about them at all, and separately because those materials “lack a sufficient connection to the Union’s resolution to cause employees to read the Union’s resolution as incorporating them.”

What It Means

It means the Unions have wide leeway to advocate BDS anywhere and everywhere, other than encouraging work stoppages against employees’ own employers.  This seems to include even explicitly advocating union members picketing other union members’ employers.  That is a bizarre outcome.

Shurat HaDin can appeal up the chain within the NLRB and will likely do so.  They will likely argue that BDS is by its very terms a boycott movement, and that the materials linked from the Union’s resolution all revolves around disrupting economic interaction with Israeli companies.  Encouraging employees to “become engaged” in a boycott campaign against Israel necessarily implies that those employees should boycott Israel, and companies doing business with Israel.

The NLRB’s narrow, deferential interpretation of the Union’s endorsement is a win for BDS.  It is not, however, an endorsement of Union boycotts against Israel.