by J. Michael
McGuire and Bryan O'Keefe
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 firstname.lastname@example.org or email@example.com,