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DC Circuit affirms NLRB’s ruling that off-duty employees have protected right to picket near hospital entrance

Historically labor practitioners (and the NLRB and the courts) have analyzed picketing versus handbilling differently. As a general rule, handbilling (i.e., the distribution of literature) has been allowed in many circumstances where picketing (the holding of a picket sign) is not. For example, in hospitals, since the Board’s 1945 Republic Aviation decision, handbilling, like solicitation (verbal requests for support) has been presumptively permitted “outside of immediate patient-care areas, such as in hospital lounges and cafeterias … unless the hospital can demonstrate the need for the restriction ‘to avoid disruption of health-care operations or disturbance of patients.’” 

In this case, the NLRB extended that approach to picketing, and the D.C. Circuit has affirmed its approach. The DC Circuit cautioned that the employer might have been able to block the picketing if it could prove that the “likelihood” that the otherwise protected activities would disturb patients or disrupt patient care. 

It is likely that future courts (and the Board) will limit this ruling to its facts where:

  • Off-duty employees
  • Of a hospital
  • Wish to picket by merely “holding … picket signs—without any chanting, marching, or obstructing of passage”
  • In a manner where they stand “stationary” and do not patrol
  • In a location, which even if near the hospital entrance, does not impede pedestrians, traffic or other operations
  • And do so without the likelihood of disturbing patients or disrupting patient care.

Source: Capital Medical Center v. NLRB, (D.C. 8/10/18).

Rat balloon soon to be deflated by NLRB?

Bloomberg BNA reports that the NLRB General Counsel is looking to litigate one of organized labors’ favorite forms of protest: A giant inflatable rat. The effectiveness of the baloon is certainly questionnable, but it is equally undeniable that the presence of one draws attention. Often inflated in the back of a pickup truck, parked lawfully at a meter, or simply on the side of a street where a vehicle might otherwise park, these rats typically stand about twice as tall as a human: Usually under any local ordinance’s height limits.

The rats often draw much more attention than protesters might simply standing and handing out information to passersby, and that’s the point: Labor law generally distinguishes between handbilling and picketing. Handbilling is typically seen as pure speech, and as such, protected by the First Amendment, and subject to limited governmental constraints. Picketing is more easily constrained; picketing is subject to strict rules under the National Labor Relations Act for example.

In the NLRB’s 2011 Sheet Metal Workers Local 15, the Board held these rats were more like handbilling than picketing, and as such constitute symbolic speech within the First Amendment. Now, according to Bloomberg BNA, the NLRB General Counsel is looking to re-litigate that holding, contending that they should, instead, be subject to the picketing rules, and/or are at most a form of commercial speech. Commercial speech is generally afforded less protection under the First Amendment, though, in a perhaps curious twist, recent rulings by the Supreme Court seem to be suggesting the Court will afford put it on a higher constitutional footing.

 

NLRB requires unions to state explicitly that they will work not to harm neutral employers when threatening “area standards” picketing

When companies work at the same site or even just near each other, a union — unhappy with one of them — may come to feel that actions at that location — such as that particular employer’s wage or benefit levels — are depressing “area standards.” Unions (like everyone) have a right to protest actions that affect their community, even if for example none of their members work for that employer. That is often the case because that particular employer is often a non-union company that the union is trying to organize.

Before commencing their protest activities, the union may warn not only that employer but all the employers at that location. The Board calls those other employers “neutrals.”

The Board require unions who give such warnings to explicitly state that they will work to minimize the impact on neutrals.

A union’s broadly worded and unqualified notice, sent to a neutral employer, that the union intends to picket a worksite the neutral shares with the primary employer is inherently coercive. Without any details, such a notice is ambiguous about whether the threatened picketing will lawfully target only the primary employer or will unlaw- fully enmesh the neutral employer. The neutral would understandably question why the union is sending a strike notice to an employer with no role in the dispute, and this question would reasonably lead it to at least sus- pect, if not believe, that its business would be targeted by the picketing and that it would be prudent to cease doing business with the primary employer to avoid losses. It would be unrealistic to expect neutral employers, many with little experience in arcane common-situs picketing law, to assume the union would avoid enmeshing them in the picketing. Thus, an unqualified picketing threat communicated to a neutral at a common situs is an am- biguous threat, and such an ambiguous threat enables a union to achieve the proscribed objective of coercing the neutral employer to cease doing business with the prima- ry employer—the very object a union seeks to achieve when it makes a blatantly unlawful threat to picket or unlawfully pickets a neutral. Accordingly, as our dis- senting colleague refuses to acknowledge, it is reasona- ble to conclude that when a union sends to a neutral an unqualified and therefore ambiguous notice of its intent to picket a common situs, it does so with an object to coerce the neutral to cease doing business with the pri- mary employer. A union may still lawfully inform a neutral of its intent to picket as long as it qualifies the notice by clearly indicating that its picketing will comply with legal limitations on such picketing.

Source: Electrical Workers IBEW Local 357, N.L.R.B., Case 28-CC-115255, 12/27/18

Impact of Supreme Court’s Janus decision continues to expand, even beyond labor law

Bloomberg BNA published an interesting article looking at the expanding reach of the Supreme Court’s Janus decision in 2018, which held that public employers could not, under the First Amendment, be required to pay union dues or even a service fee. Many have predicted that Janus will have a major impact on unions in America. Its application to unionized workforces in the private sector is already being litigated. Bloomberg BNA’s article notes that its impact is expanding even beyond labor law:

  • Legal commentators are debating whether it has heightened the protections afforded commercial speech under the First Amendment. Historically commercial speech has of course enjoyed less protection than political speech.
  • It may have rendered unconstitutional laws in states that require attorney bar membership.
  • It may mean that statutes, like Title VII, which require one party to pay the other’s attorney fees are unconstitutional.
  • It may have rendered the NLRB’s longstanding rules that require, within limitations, that employers sometimes allow workers to wear political or pro-union buttons in the workplace.

Turn on your radios!

The Supreme Court holds oral arguments tomorrow in Masterpiece Cakeshop. I will be live in-studio on 850 KOA Colorado’s Morning News, for a series of segments starting about 8:00 AM tomorrow morning discussing the case.