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Ninth Circuit Overturns NLRB Decision ‘Finding Unlawful Secondary Picketing, Citing Insufficient Evidence Of An Intent To Coerce A Neutral Employer’

Published Friday, May 7, 2021
by The National Law Review
Ninth Circuit Overturns NLRB Decision ‘Finding Unlawful Secondary Picketing, Citing Insufficient Evidence Of An Intent To Coerce A Neutral Employer’

The United States Court of Appeals for the Ninth Circuit has overturned a decision by the National Labor Relations Board (NLRB) - dismissing a complaint against two joint employers alleging unlawful termination in retaliation for picketing activity.

The Court, reversing the NLRB, found that the Employees’ picket was not unlawful secondary activity and therefore did not lose the protection of the Act (Service Employees International Union Local 87 v. NLRB, Case No. 19-70334 (April 28th, 2021).

The case involved an Unfair Labor Practice (ULP) charge filed by the Union on behalf of terminated Employees against their primary employers, a building services company and a janitorial services subcontractor.

A property management company hired the building services company to provide janitorial services to one of the buildings it managed.

The building services company subcontracted the work to the janitorial services subcontractor who directly employed the Employees to perform the janitorial work.

In response to issues concerning wages and other working conditions, the Employees, with the assistance of the Union, organized two pickets in front of the building for which the Employees provided janitorial services.

At the conclusion of the pickets, several Employees were fired by the janitorial services subcontractor, and the building services company terminated its contract with the property management company - and, consequently, with the subcontractor.

The Union filed a ULP charge against the primary employers, alleging unlawful termination in retaliation for protected activity under the Act.

However, the NLRB credited the employers’ affirmative defense and found that the employees lost the protection of the Act by engaging in secondary activity in violation of Section 8(b)(4)(ii)(B) of the Act.

The NLRB held that the Employees’ picketing constituted secondary activity intended to pressure a neutral party, the property management company, to “cease doing business” with the primary employers.

Under the Act, conduct that coerces, threatens or restrains a neutral employer with the objective of pressuring the neutral employer to “cease doing business” with the primary employer, or the employer with whom Employees have a labor dispute, constitutes unlawful, secondary activity.

Conduct is found to have this requisite secondary objective when it seeks to force the neutral employer to terminate its business relationship with the primary employer or to pressure the primary employer into changing its labor policies.

The NLRB found the General Counsel and the Union failed to establish that the picketing clearly disclosed that the dispute was with the primary employers, the building services company and the subcontractor, creating a rebuttable presumption that the picketing was unlawful secondary activity.

The NLRB further held the picketing had an impermissible secondary objective.

On appeal, the Court concluded the NLRB’s finding of unlawful picketing activity was not supported by sufficient evidence but rather was based on the “thinnest of reeds.” 

Contrary to the NLRB, the Court found that the picketing Employees clearly indicated that their dispute was with their primary employer, stating that the single sentence in a leaflet isolated by the NLRB in its analysis did not obfuscate the plain language of the picketers’ signs and materials that called on the building services company by name.

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