The Second Circuit says there is a difference between picketing and striking, and reverses a National Labor Relations Board decision upholding the termination of employees engaged in unlawful picketing.

A union sought to organize workers of an Albany health clinic, and conducted a 40-minute picketing in front of the facility without giving prior notice to the clinic. Five nonunion employees who were not on duty at the time joined in the picketing. According to the Court, they did not block the entrance to the clinic, and the picketing was peaceful. After the clinic sought an unfair labor practice declaration from the NLRB because the union did not provide the required 10-day notice, the employees were terminated for engaging in an “illegal picket.” The NLRB upheld the terminations.

The Second Circuit overturns the NLRB, stating that the National Labor Relations Act prohibits a “labor organization” from striking or picketing a health care institution without giving the specified period of notice, but “the statute does not state that an employee who does the same commits a violation.”

“While labor organizations are subject to sanction for either striking or picketing without observing the notice requirement specified by section 8(g) [of the NLRA] because of the obligation that section attributes to them, the statute specifies sanctions for employees who participate in the violation only in the case of strikes and not in the case of picketing (unless the employees are agents of the labor organization and have violated section 8(b)),” the Court holds. Civil Service Employees Association v. NLRB