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

As a result of the discipline imposed on employees who participated in nationwide and local demonstrations during 2006 protesting impending legislation targeting illegal immigrants, the National Labor Relations Board has issued guidelines determining when political advocacy would be protected by the National Labor Relations Act.

The Board says that “non-disruptive political advocacy for or against a specific issue related to a specifically identified employment concern, that takes place during the employees' own time and in nonwork areas, is protected,” however, that on-duty political advocacy is subject to the employer’s “lawful and neutrally applied work rules.” Leaving or stopping work to engage in political advocacy is also subject to the employer’s work rules, and may not be a protected activity.

A shopping mall operator did not commit an unfair labor practice in denying permission for union members to distribute literature at the mall, the Second Circuit rules, overturning a National Labor Relations Board decision in the case.

The enclosed shopping mall had a new tenant who used nonunion labor to remodel its retail space. The mall operator turned down a local Carpenters’ Union request to set up a table at the mall to distribute literature to the “general public” highlighting the advantages of union membership.

The shopping center had a policy of welcoming “civic, charitable, or other organizations to solicit in the common areas of the mall” subject to the mall manager’s determination whether the activity would benefit the mall. The NLRB held that the mall operator excluded the union from its property because it was a labor organization and thus committed an unfair labor practice.

The Second Circuit disagrees with the Board’s reasoning, holding that “[t]he intended audience of the Carpenters’ Union was the ‘general public.’ No employees of the mall or of its tenants were specifically targeted by the Carpenters’ Union.”

The Court says that to amount to illegal union discrimination, “the private property owner must treat a nonemployee who seeks to communicate on a subject protected by [the NLRA] less favorably than another person communicating on the same subject….There was no evidence in this record that any employer was permitted to communicate to the general public, through the use of mall facilities, its reasons for not paying area standard wages to members of a unionized trade. Nor was any competing labor group permitted to engage in efforts to organize members of their trade. Accordingly, the Board’s conclusion that the operator of the mall had discriminated against the Carpenters’ Union cannot stand.” Salmon Run Shopping Center LLC v. NLRB

The D.C. Circuit overturns an arbitration award reinstating a worker terminated for calling hotel management “racists” within the earshot of guests. The worker was on a last chance agreement for a prior incident, in which the union waived its right to grieve if the employee were to be terminated for similar behavior. Although the arbitrator had found that the employee violated the last chance agreement, he ordered the employee to be reinstated since he was a “troubled employee, who clearly displays symptoms of underlying psychological imbalance.” The hotel then appealed the arbitration award. The Court granted the hotel’s appeal, ruling that once the arbitrator found that the triggering event occurred—the violation of the last chance agreement—the arbitrator’s inquiry had to end and the union’s grievance was no longer arbitrable. Hay Adams Hotel LLC v. Hotel & Restaurant Employees Lo. 25