Labor: NLRB Upholds Picketing Standards
By Nick A. Nykulak
Picketing by a labor union is a protected activity under the National Labor Relations Act (NLRA), but in order for the picketing to be lawful, labor unions must strictly adhere to certain rules when “neutrals” are involved. Under the NLRA, labor unions may peacefully picket to inform the public that they have a dispute with an employer and may properly inform the employers’ employees, material men, suppliers and business visitors of that dispute.
In 1950, the National Labor Relations Board (NLRB) decided Moore Dry Dock, which established the standards a labor union must follow in order for picketing to be lawful. Under Moore Dry Dock, a labor union, at a minimum, must strictly limit all picketing activity to times when the primary employer is on the jobsite and engaged in its normal business operations at the jobsite. A labor union must also strictly limit picketing activity to places reasonably close to the location of the jobsite. Lastly, the picketing activity must disclose clearly to the public and those on the jobsite that the union’s dispute is with the primary employer.
The employer that the labor union has a “dispute” with is considered the “primary,” and all other employers are considered “neutrals” to the dispute. It is unlawful for any labor union to purposely “mesh” a neutral into the dispute with a primary by threatening the neutral with pickets or other unlawful conduct that has an “objective” of having the neutral cease doing business with the primary. Consider the scenario where a union official threatens a general contractor, by stating that unless the “neutral” general contractor replaces the non-union subcontractor (the primary) with a union subcontractor, the union “will shut this job down with pickets.” This is an example of an unlawful statement that would subject the union to an unfair labor practice charge. If monetary damages result from the unlawful picketing activities, or the primary is removed from the jobsite due to the unlawful threat, the general contractor and/or the subcontractor (or any other person/entity that is harmed) may recover such damages in federal district court from the labor union making the unlawful threats.
In a very recent decision, the NLRB reaffirmed its previous holdings that “unqualified” threats to picket a jobsite (i.e., threats made to a neutral which fail to state that any picketing on the jobsite will be limited to and directed at only the primary with whom the union has a dispute) are unlawful under the NLRA. The NLRB held that a union official’s statement made to a neutral general contractor that the union would picket “unless” demolition work at the jobsite was performed by a union contractor instead of a non-union subcontractor clearly demonstrated the union’s unlawful secondary objective of forcing the neutral general contractor to cease doing business with the primary non-union subcontractor. As such, the NLRB continues to hold that any threats, restraint or coercion that are designed to force or require a neutral employer to cease doing business with the primary, including unqualified threats to picket the entire jobsite, remain unlawful under the NLRA.
A union’s picketing activities are subject to many more constraints than are discussed in this article. Should you have any questions about a threatened or actual picketing activity, please do not hesitate to contact Nick Nykulak or Alan Ross.