NLRB Finds Laborers Unlawfully Threatened to Picket Job with Nonunion Contractor
May 14, 2009
The National Labor Relations Board has held that Laborers Local 79 violated the National Labor Relations Act when it threatened a real estate developer that it would picket and "shut down" the developer's job site unless demolition work was performed by a union contractor.
The developer, JMH Development, purchased an old warehouse in Brooklyn for conversion into apartments and retail stores. JMH originally hired a general contractor that subcontracted demolition work to a union contractor. However, it became dissatisfied with the performance of those contractors and eventually hired open-shop contractor Northeast Interiors to complete demolition. Local 79 put pressure on JMH and one of the project investors to fire Northeast and hire a union contractor. The union's tactics included threats to picket the job site where Northeast was working. The union had no labor dispute directly with JMH or the investor, only with Northeast.
While a union generally has the right to picket an employer with which it has a direct dispute (a primary employer), the Act prohibits unions from pressuring secondary employers to "cease doing business" with the primary employer. In the 1950 Moore Dry Dock case, the Board established standards for determining if picketing at a common situs (where employees of a primary employer and employees of a secondary employer work on the same premises) is lawful. The picketing is considered to be lawful primary picketing if it is:
- Limited to times when the employees of the primary employer are working on the premises.
- Limited to times when the primary employer is carrying on its normal business there.
- Confined to places reasonably close to where the employees of the primary employer are working.
- Conducted so that the picket signs, the banners, and the conduct of the pickets indicate clearly that the dispute is with the primary employer and not with the secondary employer.
The Board has held that common situs picketing may be unlawful even if these standards are met where the union's statements or actions otherwise indicate that the picketing has an unlawful objective. The Board has also held that a union's mere failure to provide assurances that threatened picketing would meet the Moore Dry Dock standards can itself establish a violation of the Act. However, two circuit courts have rejected the Board's position on this.
In the present case, the Board found that Local 79 made unqualified threats to picket without providing assurances that the picketing would meet the Moore Dry Dock standards. Even if that is insufficient to find a violation of the Act, the Board found a violation in this case based on direct evidence of Local 79's unlawful secondary objective, including statements by union agents to JMH that Local 79 would picket "unless" demolition work was performed by a union contractor instead of Northeast.
Local 79, Laborers Int'l Union of N. America, AFL-CIO, 354 NLRB No. 14 (April 30, 2009).