Victory for Unions’ Right to Picket

The Supreme Court of the United States once recognized that “[p]eaceful picketing is the workingman’s means of communication.” Milk Wagon Driver’s Union v. Meadowmoor, Inc., 312 U.S. 287, 293 (1941).  Since then, employers have steadily chipped away at the laws that allow workers to express themselves through picketing.  Fortunately, on April 1, 2019, the Labor Movement deflected the latest attack on the right to picket when the Supreme Court declined to review a Court of Appeals case where the employer attempted to establish a categorical bar on picketing by employees on the employer’s property during work hours.

Whenever employees seek to exercise their right to solicit support for a labor dispute “on their employer’s property, the employees’ rights are balanced against the employer’s property interests . . . .”  Capital Med. Ctr. v. NLRB, 909 F.3d 427, 431 (2018).  Employees are presumed to have the right to solicit support unless the employer presents that a prohibition is necessary to maintain discipline.  InCapital, the employer argued that the law’s presumption in favor of employee rights “should be inapplicable in the context of employee picketing on company property.”  Capital, 909 F.3d at 433.  The court disagreed, finding that picketing is no more disruptive than other kinds of pro-union communication.  Id. at 434.  The court upheld the right to picket for “a small number of off-duty hospital employees, seeking to inform visitors to the facility about an ongoing labor dispute . . . .”  Id. at 430.

For now, the law continues to protect non-disruptive picketing on company property.  Members and organizers should remain vigilant for any attempts by management to curtail the union’s right to peacefully picket on company property.

By Alex Nazarov | April 29, 2019

Legal Developments