The National Labor Relations Board’s General Counsel’s Office’s Division of Advice has concluded that a union seeking to organize a construction employer’s drywall workers did not violate Section 8(b)(1)(A) of the National Labor Relations Act by  following the employer’s supervisors and managers aggressively in cars from the employer’s main office to various jobsites in the Phoenix area.  Southwest Regional Council of Carpenters and Carpenters Local 1506, Case No. 28-CB-102769 (August 28, 2013).

Arok, Inc. (“Employer”) is  a metal frame and drywall contractor.   For many years, Southwest Regional Council of Carpenters and Carpenters Local 1506 (“Union”) had been trying to organize the Employer’s drywall workers. At the Union’s behest, its members began following the Employer’s supervisors and managers from the Employer’s main office to various jobsites around Phoenix, sometimes by driving aggressively, including running red lights, to maintain pace with the employer’s supervisors.

The Employer filed an unfair labor practice charge against the union under Section 8(b)(1)(A) of the NLRA, which prohibits restraint and coercion of employees by unions. The Regional office of the NLRB asked the Division of Advice to help it decide whether the charge had merit and whether a complaint should be issued. The Division decided the charge should be dismissed if not withdrawn.

The Division noted that, in the past, the NLRB had found unlawful  under the NLRA union conduct such as throwing of rocks and placing tacks in the roads, assaulting employees and supervisors, damaging vehicles, preventing people and vehicles from entering onto company premises, threats from pickets, fights; beatings, and  mass picketing activity that, when directed at employees, would unlawfully restrain and coerce them.

In contrast, the Division noted the NLRB has found that lesser conduct directed at employees, where “[n]o one is injured, nothing was thrown, no one was prevented from going to work or leaving, and no vehicle was harmed or excluded from the premises,” does not violate Section 8(b)(1)(A).

The Division decided the “Union’s conduct did not rise to the requisite level of unlawful restraint or coercion” because the union agents did not “verbally threaten [the employer’s managers or supervisors] or engage in any other intimidating conduct toward them.” The Division also determined that no violation had occurred because the union agents had not followed any employees protected by the NLRA. (Supervisors are not protected by the NLRA). The Division noted that a violation of 8(b)(1)(A) does not require that the unlawful conduct be directed against the employees protected by the law; if the employees either witnessed or learned of unlawful conduct directed at supervisors or managers, a violation also could be found.

The labor movement has embraced aggressive organizing tactics; this case highlights just one example. This case also underscores the unreasonable lengths to which the NLRB will permit unions to go to achieve their ends.

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Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues.

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Daniel D. Schudroff Daniel D. Schudroff

Daniel D. Schudroff is an Associate in the New York City office of Jackson Lewis P.C.. His practice is focused on traditional labor matters, employment litigation, and counseling. Mr. Schudroff represents clients in both federal and state courts, as well as before administrative…

Daniel D. Schudroff is an Associate in the New York City office of Jackson Lewis P.C.. His practice is focused on traditional labor matters, employment litigation, and counseling. Mr. Schudroff represents clients in both federal and state courts, as well as before administrative agencies including the National Labor Relations Board, New York State Public Employment Relations Board, Equal Employment Opportunity Commission, New York State Division of Human Rights, New York City Commission on Human Rights, and New York State Department of Labor. Mr. Schudroff also advocates on behalf of employers at arbitration hearings and during collective bargaining negotiations. In addition, Mr. Schudroff regularly advises unionized and non-unionized clients with respect to a wide array of issues arising under the National Labor Relations Act and Labor Management Reporting and Disclosure Act. Mr. Schudroff also regularly counsels employers affected by the Fair Labor Standards Act, Railway Labor Act, Worker Adjustment and Retraining Notification Act, Uniformed Services Employment and Reemployment Rights Act, New York Labor Law, and Taylor Law.