NLRB Advice Memo Recommends Restoring a Broader Definition of Picketing Under the NLRA

On May 14, the National Labor Relation’s Board (“Board”) Advice Division released an advice memorandum recommending that the Board reconsider three picketing cases decided during President Obama’s administration. The memo provides insight regarding how the General Counsel’s Office, and the Board, may interpret picketing activity in the near future. This advice could affect health care entities as both primary and secondary employers.

Factual Background

The advice was furnished in the context of a Chicago-area building project undertaken by Summit Design + Build (“Summit”). The union had a labor dispute with a subcontractor on the project, not with Summit. The union informed Summit that it was planning to picket at the project site; however, Summit informed the union that the subcontractor would not be at the site until days later. Nevertheless, the union erected a large yellow banner roughly 15 feet from the site that read “LABOR DISPUTE SHAME SHAME,” and beneath those words, “SUMMIT DESIGN AND BUILD.” The union also erected a large inflatable cat, holding up an inflatable worker by its neck.

General Framework

The union has a statutory right to picket an employer with which it has a labor dispute. However, there are additional considerations when the union seeks to picket an employer that is working at the site of a neutral secondary employer. This is known as secondary picketing or common situs picketing.

The union maintains the lawful right to picket so long as it does not intend to “enmesh” the neutral secondary employer in the dispute. To determine whether or not a union’s activity is lawful when a primary and secondary employer are occupying the same work site, the Board and the courts generally employ the Moore Dry Dock standards. Additionally, a union must provide at least 10 days advance notice if it intends to picket at the site of a health care institution. These protections afforded to health care institutions and neutral secondary employers were diluted by recent Board decisions holding that certain coercive activity did not amount to picketing and therefore not subject to the above-mentioned conditions.

What Is Considered Picketing?

Defining what type of conduct will be regarded as picketing is crucial to the application of the above-mentioned framework.

Historically, the Board had held several types of conduct outside the literal definition of traditional picketing nevertheless amounted to “signal” picketing because the conduct intended to request neutral employees to refrain from entering or working with the neutral employer. Examples of signal picketing included planting signs in a snowbank and then watching the signs from a parked car, stationing agents near the front of a hospital entrance and posting an agent in a rat costume near a neutral gate. Furthermore, on numerous instances the Board declined to classify certain conduct as picketing but found it nonetheless sufficiently coercive within the meaning of the act. This included conduct such as throwing bags full of trash into a building lobby and broadcasting a message at extremely high volume through loudspeakers facing a neutral building.

In 2010, the Board sharply retracted its historically established broad interpretation of picketing in Carpenters Local 1506 (Eliason & Knuth of Arizona) where it held that the “carrying of picket signs and persistent patrolling” was essential to the definition of picketing and therefore stationary bannering was not picketing. The following year, the Board’s decision in Sheet Metal Workers Local 15 (Brandon Medical Center (Brandon II)) held that an inflatable rat, located at a significant distance from the hospital “where its attendants did not physically or verbally accost hospital patients,” was also not picketing. While the decision acknowledged that in certain circumstances an inflatable rat could be coercive, the Board did not find that it was coercive under the particular facts of Brandon II. In that same year, the Board also ruled that a union was not picketing under the act when it erected banners proclaiming shame on them at 19 different neutral employers’ premises (Carpenters Southwest Regional Council Locals 184 & 1498 (New Star)).

According to the new advice memo, Eliason & Knuth of Arizona, New Star and Brandon II overextended the impact of an earlier Supreme Court decision regarding handbilling. The memo urges the Board to reconsider the trio of cases cited above and reinstate the Board’s prior reasoning regarding signal picketing.

Practical Takeaways

The manner in which the Board defines “picketing” has a direct impact on health care employers. The 10-day advance notice required for picketing at a health care institution is necessary to prevent and minimize patient disturbance and disruption of health care operations. Additionally, as health care institutions continue to outsource or subcontract certain functions within the facility, it is becoming increasingly common for labor unions to picket a health care institution as a result of a labor dispute with the company providing services within the institution. It is in the best interest of health care employers to have a broad definition of picketing so that the 10-day notice and the protections for neutral employers are applicable when a labor union decides to place banners, inflatable objects or engage in other demonstrative conduct at a health care institution. We will continue to monitor developments in this area.

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