When three Republican appointees on the D.C. Circuit tell the NLRB that its approach to an issue is “without foundation in the Act, relevant case law or any general legal principle,” you might think the Trump appointees on the Board would take heed.  But, the Trump NLRB is so eager to make life difficult for unions that it has issued an opinion sticking to the misguided view that a union breaks the law if it merely notifies Company B that it might picket against Company A.

The rules governing picketing by unions can be fairly complicated.  It is illegal under federal labor law for a union to picket against Company B in order to put pressure on Company A.  But, if Company A does business at Company B’s premises, the union can picket Company A at that location.  In labor law parlance, a location where more than one company conducts business is known as a “common situs.”  Company B can limit the scope of picketing at a common situs by setting up a separate entrance (known as a “reserve gate”) for those doing business with Company A.  For many years, the NLRB has held that in the situation outlined above, a union acts illegally if it notifies Company B of its intent to picket unless the union affirmatively states that its picketing will comply with applicable law.

Thirty years ago, the Ninth Circuit Court of Appeals held that it was “irrational” for the Board to presume that a union was making an illegal threat unless the union proclaims that its picketing will be conducted in a lawful manner.  Unfortunately, the Board did not take the hint.  In 2006, the Board held that the Sheet Metal Workers made an illegal threat when it notified the customer of a sheet metal contractor that it might engage in picketing at any site where the contractor was doing business.  The D.C. Circuit refused to enforce the Board’s order.  Instead, the court observed that “[t]he Board offers us no reason to believe that it can make an unfair labor practice out of a union’s failure to assure an employer the union will abide by the law.”

In a recent case, Intl. Bhd. of Electrical Workers, Local 357, the Board finally had a chance to fix this error.  Yet, Board Members Ring and Kaplan stubbornly insisted on adhering to the approach that, according to two Circuit courts, lacks foundation in any legal principle.  These two Trump appointees insist that “[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.”  Why is it coercive?  Because “such a notice is ambiguous about whether the threatened picketing will lawfully target only the primary employer or will unlawfully enmesh the neutral employer.”  But, just last year, the Trump Board criticized earlier NLRB decisions for requiring what it described as “linguistic precision” in employer work rules.   Instead, the Trump Board formulated a new test for judging employer work rules that gives employers the benefit of the doubt when ambiguous work rules could be interpreted to prohibit conduct protected by the NLRA.  And, the Board has held that it is legal for an employer to tell workers that “in collective bargaining you could lose what you have now,” even if the employer does not provide any assurance that it will bargain in good faith.  The Board has also allowed employers to make ambiguous statements about what will happen if workers go on strike.  In Napleton Cadillac of Libertyville, the employer sent a letter to strikers informing them, “we have placed ads for replacement technicians….  After you are replaced, should you make an unconditional offer to return to work you will be placed on a preferential hiring list should an opening occur.”  In fact, under settled Board law, unless the replacements are informed they will be permanent, the employer would be required to reinstate strikers immediately, and the burden is on the employer to prove that the replacements are permanent.  Accordingly, the ALJ viewed the employer’s letter as an improper threat that the strikers would not be reinstated even if the replacements are only offered temporary positions.  But, the Board reversed the ALJ, finding that even though the employer didn’t use the word “permanent” to describe the replacements it intended to hire, the letter implied that the replacements would be permanent.  In other words, the Board gave the employer the benefit of the doubt that an imprecise letter should not be construed as an illegal threat.

The absurdity of the Trump Board’s position, and its hostility to unions, becomes even more clear when you consider the actual facts in the Electrical Workers case.  The Union had a dispute with a company called Convention Technical Services that provides electrical services to the convention industry.  The Union wrote a letter to the Southern Nevada Building and Construction Trades Council, an umbrella body of building trades unions, requesting strike sanction authorization, copying members of the Board of Directors of the Las Vegas Convention and Visitors Authority, which manages the Las Vegas Convention Center.  It’s perfectly legal for a union to notify other employers that it has a dispute with a particular employer, and it’s also legal for the union to ask those other employers to take its side in the dispute.  Yet, according to the NLRB, merely by copying the convention center board members on a letter, giving them a heads up about the Union’s plans, the Union made an illegal threat.  Sure, going forward, the Union can pay a lawyer to write all of its letters to employers to make sure that the letters include the proper legal disclaimer.  But, the same Board members who want to impose this obligation on unions, believe it would be “unrealistic” to expect the Las Vegas Convention and Visitors Authority, with $390 million in annual revenue, to understand how to set up a reserve gate to insulate itself from the Union’s dispute with Convention Technical Services. Perhaps we need to take this out of the realm of labor law to truly appreciate the outrageousness of the Board’s position.  What if every time a local community organization publicized a rally it was required to include a disclaimer that the rally would be conducted in accordance with all applicable laws?  This is basically what the NLRB is demanding of unions.  In the rare instances when the NLRB has required wrongdoing employers to read a notice to assembled workers, judges have gone on at length about how offensive it is to require the perpetrator to “spout lines some government officials have put in his mouth.”  It’s never been clear to me why it’s more objectionable to require someone to speak words than to write them.  But, in this case, I don’t think circuit court judges will look more kindly upon the Board requiring innocent union officials to invoke a particular incantation (“we promise to obey the law”) in order to publicize lawful picketing activity.