Punching In: NLRB Memo Explores Expanding Union Picketing Rights

Monday morning musings for workplace watchers

Easing a Standard? | In-Limbo Workplace Bills

Ian Kullgren: NLRB General Counsel Jennifer Abruzzo has big plans for 2022, including a push to make it easier for workers to picket companies other than their employer, and ratcheting up fines.

In a little-noticed memo last week related to a case on remand from the U.S. Court of Appeals for the Ninth Circuit, Abruzzo encouraged the board to loosen the standard for secondary picketing, a practice where union workers picket a company associated with their employer—a parts supplier or product distributor, for example—during a labor dispute.

Federal labor law restricts picketing when the target is a neutral third party, particularly when unions try to intimidate or coerce the company to cut ties with their employer. Abruzzo wants to loosen that standard.

In her memo, she urged the board to draw a distinction between secondary picketing and unlawful coercion—in essence, making the argument that secondary picketing isn’t always illegal. She said the board’s wide ban may violate the First Amendment, and that union assembly should be considered lawful “unless rebutted by clear and convincing evidence to the contrary.”

“What she’s trying to push is a more fact-intensive, case-by-case approach to secondary picketing,” said Jeffrey Hirsch, a labor law professor at the University of North Carolina.

Abruzzo’s recommendation could allow unions to expand their picket lines beyond their primary places of work. For example, the United Mine Workers of America recently demonstrated outside shareholder offices of Warrior Met Coal, calling attention to a strike that’s stretched on nearly nine months. In response to a local court order stopping Alabama coal strikers from picketing at the entrances to their mines, the UMWA and the AFL-CIO are focusing on the investment firms BlackRock and Fidelity. The change Abruzzo proposed would make such techniques less risky and could spark similar demonstrations.

Her memo is part of a 2018 case where the then-Republican majority found that a group of janitors had illegally picketed outside a building where they worked. The Ninth Circuit later discarded that finding and remanded the case to the board.

Abruzzo also asked the board to change the way it assesses damages for workers who were fired illegally. The NLRB can’t levy punitive damages for labor law violations, and restitution is typically limited to back pay. But she said that other economic harm—for example, foreclosure, repossession and moving costs for someone who couldn’t make their mortgage payments—also should be included in payments to workers.

Also Read

Biden’s Top Labor Lawyer Will ‘Fully Use’ Enforcement Arsenal

Trump-Era NLRB Precedent for Severance Deals on Chopping Block

NLRB Cracks Down on Immigrant Worker Intimidation, Abruzzo Says

Sen. Chuck Schumer at the Capitol.

Photographer: Ting Shen/Bloomberg

Paige Smith: Congress met a number of procedural deadlines as the end of 2021 nears, passing a defense authorization bill, another stopgap bill to fund the government, and raising the debt limit. Lost in the looming cutoffs—and pending negotiations over President Joe Biden’s nearly $2 trillion Build Back Better Act—are some proposals that would directly provide additional protections for workers, including the Pregnant Workers Fairness Act and the Protecting Older Workers Against Discrimination Act, both of which cleared the House but are languishing in the Senate.

It’s not to say that Congress hasn’t been busy, nor that the spending package now in negotiations doesn’t include workplace provisions, but bills that would directly bolster employee-focused laws are in limbo.

“All of these are things that workers need very urgently,” said Judy Conti, director of government affairs for the National Employment Law Project. The Covid-19 pandemic exposed that workers are “increasingly unwilling” to work at “substandard” jobs, and this legislation might be one way employers can respond to worker shortages, she added.

Here are some of those employment proposals that cleared the House earlier this year:

• the Pregnant Workers Fairness Act (H.R. 1065), which would provide more protections for employees seeking accommodations during and after pregnancy, cleared the House in May and the Senate Health, Education, Labor and Pensions Committee by a 19-2 vote in August.
• the Protecting Older Workers Against Discrimination Act (H.R. 2061), which would make it easier for workers to prove age or disability bias, cleared the House in June.
• the PUMP for Nursing Mothers Act (H.R. 3110), which cleared the House in October, would extend existing protections to more categories of workers taking breastfeeding breaks.
• the Protect Older Job Applicant Act (H.R. 3992), which would allow older workers to allege a seemingly neutral hiring practice is discriminatory, cleared the House in November.

Conti said the Pregnant Workers Fairness Act, in particular, had strong bipartisan support and could qualify as low-hanging fruit for Congress.

“Senator Schumer should get that on the floor immediately, and start making a difference there,” she said, referring to Senate Majority Leader Chuck Schumer (D-N.Y.).

Matt Kent, a regulatory policy associate with Public Citizen, said that while it may seem like all of the oxygen on Capitol Hill is being taken up by larger items, it doesn’t mean it’s impossible to find floor time.

“I understand the difficulties of finding floor time, but there is floor time to be had,” Conti said.

Editor’s Note: “Punching In” is taking a two-week hiatus for the holidays. We’ll be back in your inboxes for a new year starting Monday, Jan. 10.

We’re punching out. Daily Labor Report subscribers, please check in for updates during the week, and feel free to reach out to us.