The D.C. Circuit overturns the decision of the National Labor Relations Board in two cases involving the Sheet Metal Workers union picketing or threatening to picket neutral employers for using companies with which the union had disputes.

The first case involved a letter sent by the union to a department store threatening to picket its construction job site because the union had a dispute with the contractor the store was using. The NLRB said that because the union did not provide an assurance in its letter that it would confine its picketing to a “reserved gate,” it had committed an unfair labor practice. The Court agrees with a previous Ninth Circuit decision that the Board “could not presume that a union’s threat to picket the job was a threat to picket contrary to the law, when picketing at the job could be done in a lawful manner.”

The second case involved a mock funeral conducted by the union outside of a hospital using non-union contractors. The NLRB held that this was the functional equivalent of illegal picketing. The Court found that “the mock funeral was a combination of street theater and handbilling.” There were buffer zones between the protest and the hospital, and union members did not physically or verbally interfere with or confront hospital patrons, the Court observed, thus consistent with the limitations upheld as constitutional. Sheet Metal Workers’ International Assn. v. NLRB