New NLRB General Counsel's Position Can Alter Location of Striking Workers in Favor of Labor Unions

by J. Michael McGuire and Bryan O'Keefe

Excerpt:

In a labor union strike, the physical location of strikers in relationship to the employer's facility can impact the level of disruption to the employer's business and therefore the overall success-or failure-of the work stoppage. This is especially true when the strikers are in a location that provides them easy access to clients or customers, such as a shopping center or mall.

Traditionally, the National Labor Relations Board (NLRB) used a balancing test, considering the employer's private property rights versus the strikers' Section 7 rights, to determine where striking employees could be located in relationship to the employer's physical building. In most instances, employers could exercise their private property rights and exclude strikers from the immediate area around the facility. But in a November 2011 case, the NLRB's General Counsel has shifted this view and adopted a new legal standard that gives far greater weight to the striking employees Section 7 rights. If the General Counsel's innovative approach prevails, private property rights of business owners will become secondary and labor unions will have the ability to locate themselves close to the employer's facility during a strike, making the strike more likely to succeed. The fact that the federal court in the recent case has sided with the union and the NLRB, at least at a preliminary stage, should put all employers on notice about possible changes in long-established law concerning the physical location of strikers and picketers.

I . Traditional Approach: 1992 General Counsel Advice Memo

The traditional approach in deciding where striking workers can be located can be found in a 1992 NLRB General Counsel Advice Memo in the case of Unbelievable, Inc., d/b/a New Frontier Hotel & Casino. In that case, strikers at a Las Vegas casino attempted to picket and handbill on the employer's property . The employer called the police and the strikers were arrested. The union filed an unfair labor practice charge, claiming that the employer violated the employees Section 7 rights.

Through an advice memo, the General Counsel (GC) directed that the charge should be dismissed. The GC held that the proper test in this situation is the so-called modified Babcock & Wilcox test which balances an accommodation of Section 7 rights against the private property rights of the employer. The GC found that the charge was without merit because the employees involved had alternative means to communicate their message from nearby public property. The end result is that by exercising private property rights, the employer could relocate the strikers off of the business's property to public property and lessen the disruptive impact of the picketing.

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J. Michael McGuire is a graduate of the University of Maryland School of Law and a partner at Baltimore-based Shawe Rosenthal, which is a management side labor and employment law firm.

Bryan M. O'Keefe is a graduate of the Pennsylvania State University Dickinson School of Law and an associate at Shawe Rosenthal. Mr. O'Keefe's bar admission is currently pending before the Maryland Board of Law Examiners. Both focus their practice on labor-management relations and employment litigation. They can be reached at jmm@shawe.com or okeefe@shawe.com, respectively.