Hearn Construction and Carpenter' Union Local 180 Decision and Order
In a ruling at the end of June 2009, the two-member NLRB found that the arrest of Carpenter picketers at a designated gate on public property violated Section 8(a)(1) of the National Labor Relations Act (Carpenters Local 180 and Hearn Construction, 354 NLRB No. 37). Unfortunately, the Board overtly refused to rule on a determination that the arrests would have been illegal even if the picketers were on private property.
In the summer of 2007, the Union conducted traditional area standards picketing at the jobsite. After several days of peaceful picketing at the designated gate, the General Contractor sought the citizens’ arrest of the picketers. The location of the arrest was public property along the roadside where the sidewalk would eventually be built. A construction fence was moved out to the street itself. Locations for picketing were limited. Either the Union needed to picket in the street which would be dangerous and possibly illegal, or in the entrance to the construction site between the gate posts on the land covered by an encroachment permit. The Administrative Law Judge ruled that the property was, in fact, public property and therefore the arrests violated the Act.
The Union argued it does not matter if the property was public or private. The Administrative Law Judge agreed and ruled that the picketing did not violate the National Labor Relations Act and, therefore, under California Penal Code Section 602(o) the picketers’ behavior was not trespassing. The Administrative Law Judge relied on a recent access case in which our office represented the Union, Fashion Valley Mall, LLC v. NLRB, 42 Cal. 4th 480 (2007). The NLRB looks to state law to determine employer property rights and balance the owners’ property rights against the Union’s Section 7 rights. FashionValley lowers the owner’s property interest specifically allowing the right to leaflet and picket on private property.
The National Labor Relations Board upheld the Administrative Law Judge’s decision with one exception. In footnote 3 of the NLRB decision the Board said
We do not pass on Judge Cracraft’s alternative theory that it does not matter whether the picketing occurred on public or private property.
This means that the two-member NLRB, Chairperson Liebman and Member Schaumber, did not accept or reject Judge Cracraft’s picketing on private property theory. This has two important impacts.
First, this means that Unions should continue to argue under Penal Code 602(o) that picketing on private property is not trespass because it does not violate the National Labor Relations Act. As long as there are no violations of other sections of the Act through picketing such as Section 8(b)(4) (secondary boycott while picketing), 8(b)(7) (recognitional picketing for longer than a reasonable period not to exceed thirty days), or 8(g) (picketing a healthcare facility without the proper notice), picketing is therefore permitted and not prohibited under the National Labor Relations Act and is not trespass under California law.
Second, the question remains, is the otherwise legal picketing on private property protected under the NLRA? The two-member NLRB has decided not to review whether arrests for picketing on private property at a designated gate is an unfair labor practice. The two-member Board leaves the question to the full Board. Now that President Obama has nominated three new members to the Board, Senate confirmation of the three nominees will provide an opportunity for the full Board to review the question.