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NLRB Agrees with AGC, Decides to Retain Notice Rule in Common-Situs Picketing Case

January 17, 2019

On December 27, 2018, in IBEW Local 357 (Desert Sun Enterprises), the National Labor Relations Board (NLRB) issued a decision reaffirming its longstanding rule that, when a union notifies a neutral employer of its intent to picket a primary employer (the employer with which it has a direct dispute) at a site where both employers are operating, the union must include assurances that it that the picketing will conform to the NLRB’s Moore Dry Dock standardsThe decision is consistent with an amicus brief filed by AGC and is important for contractors and owners.

Background

On October 9, 2013, IBEW Local 357 learned that Desert Sun Enterprises Limited d/b/a Convention Technical Services (CTS) was performing work on a show at the Las Vegas Convention Center (LVCC).  On the same day, Local 357 sent a letter to the Southern Nevada Trades Council seeking a strike sanction against CTS “for any and all jobs because of not paying area standards.”  Local 357 also sent the same letter to selected members of the Board of Directors for the Las Vegas Convention & Visitors Authority (LVCVA). The LVCVA manages the LVCC, which includes common-situs exhibition halls where employees dispatched by Local 357 and other labor organizations perform work.

Neither the strike sanction request letter nor the Trades Council’s approval of a strike informed anyone that, if the union established a picket line, it would comply with the standards contained in Sailors Union of the Pacific (Moore Dry Dock), 92 N.L.R.B. 547 (1950).  The letter also failed to  provide any expected dates or duration of any picketing or to identify the CTS jobs at issue.  

In Moore Dry Dock, the NLRB established criteria to determine whether a union has demonstrated an unlawful motive for involving a neutral employer (and its employees) in picketing or threatening to picket a primary employer with whom it has a dispute, at a common situs. Under the Moore Dry Dock standard, picketing is considered presumptively lawful if: (1) the picketing is strictly limited to times when the site of the dispute is on the neutral premises; (2) at the time of the picketing, the primary employer is engaged in its normal business operations at the common situs; (3) the picketing is limited to locations reasonably close to the location of the situs; and (4) the picketing discloses clearly that the dispute is with the primary employer.  The Board has long held that “[w]here a union makes an unqualified threat to a neutral [employer] to picket a jobsite where an offending primary employer would be working, and has reason to believe that persons other than the primary would be at work at the site, it has an affirmative obligation to qualify its threat by clearly indicating that the picketing would conform to Moore Dry Dock standards or otherwise be in uniformity with Board law.”

The NLRB has relied on this standard for over 50 years.  In Desert Sun, however, the union and the former general counsel of the NLRB argued that the Board should overrule the rule and no longer require a picketing union to assure neutral employers that the union’s picketing would comply with the Moore Dry Dock standards.  AGC, jointly with the Council on Labor Law Equality, filed an amicus brief in the case, urging the NLRB to maintain the rule because the requirement is consistent with the National Labor Relations Act, protects important public policies, and reflects the realities of labor relations at common situs worksites.  The brief explained that, “Departing from precedent…would allow unions to turn studied ambiguity in their communications into a weapon they could readily wield against the potentially many secondary employers at the potentially many sites at which a primary employer and those secondary employers are both working.”

Decision and Analysis

The Board agreed that the standard should be retained.  It reasoned that its longstanding requirement was justified in light of “Congress’s deep concern with ensuring that neutral employers remain free from entanglement in the labor disputes of others.”  The Board noted that “an unqualified picketing threat communicated to a neutral at a common situs is an ambiguous 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 primary employer – the very object a union seeks to achieve when it makes a blatantly unlawful threat to picket or unlawfully pickets a neutral.”  Accordingly, the Board ruled that the union violated the Act by threatening to engage in common-situs picketing without assuring the neutral employer that its picketing would be lawful. 

The Board’s reaffirmation of its longstanding rule will help ensure that secondary employers are not embroiled in disputes between labor organizations and primary employers and can continue to perform work uninterrupted at the same site as the primary employer.  While the Board reiterated that it does not “expect unions to necessarily cite Moore Dry Dock or use any specific legalese,” the Board held that unions will be required to “make clear in some manner that it will comply with legal limitations on common situs picketing so as to not entangle neutrals.”  As AGC argued in its brief, requiring such clear and unambiguous notice of the union’s intent to abide by the Moore Dry Dock standards will serve to help shield innocent secondaries from the cost, disruptions, and uncertainty that might otherwise result. 

Editor’s Note:  This article was written by guest authors Mark Stubley and John Merrell of the law firm Ogletree Deakins, who also drafted the amicus brief referenced in the article.

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