Service Employees Intl. v. NLRB

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SERVICE EMPLOYEES No. 19-70334
INTERNATIONAL UNION LOCAL 87,
Petitioner, NLRB No.
20-CA-149353
v.
NATIONAL LABOR RELATIONS OPINION
BOARD,
Respondent,
PREFERRED BUILDING SERVICES,
INC.,
Intervenor.
On Petition for Review of an Order of the
National Labor Relations Board
Argued and Submitted September 16, 2020
San Francisco, California
Filed April 28, 2021
Before: Paul J. Watford, Michelle T. Friedland, and
Eric D. Miller, Circuit Judges.
Opinion by Judge Watford
2 SEIU LOCAL 87 V. NLRB
SUMMARY *
Labor Law
The panel granted a union’s petition for review of a
decision of the National Labor Relations Board (“the
Board”), which held that janitorial employees had lost the
protection of the National Labor Relations Act (“NLRA”)
due to unlawful picketing.
The janitorial employees cleaned an office building in
San Francisco, California that was managed by Harvest
Properties, Inc. Harvest hired Preferred Building Services
to provide the janitorial services. The employees regarded
Preferred as their principal employer. Several of the
janitorial employees sought help from Service Employees
International Union Local 87 in addressing their concerns
about low wages and poor working conditions. The
employees, joined by members of the Union, staged two
pickets in front of the building’s main entrance. After several
janitorial employees were discharged, the Union filed a
charge with the Board alleging Preferred engaged in unfair
labor practices by discharging employees in retaliation for
their picketing and union activity.
Section 8(b)(4)(ii)(B) of the NLRA does not prohibit
unions from engaging in primary picketing – picketing
aimed at the primary employer, but it does prohibit
secondary picketing – picketing aimed at a neutral third
party with the objective to force the third party to take action
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
SEIU LOCAL 87 V. NLRB 3
to give the union leverage in its dispute with the primary
employer.
The panel held that the Board erred in concluding on this
record that the employees’ picketing violated Section
8(b)(4)(ii)(B) of the NLRA. Specifically, the panel held that
while the Union may have engaged in coercive activity
(picketing and patrolling), the Board’s finding that it
constituted secondary, as opposed to primary, activity was
not supported by substantial evidence. The combination of
the picket signs and the leaflets, considered in their entirety,
clearly disclosed that the employees’ dispute was with
Preferred and not with any of the buildings’ tenants.
Because the Union’s picketing activity complied with the
criteria in Sailors’ Union of the Pacific (Moore Dry Dock
Co.), 92 N.L.R.B. 547 (1950), a rebuttable presumption
arose that it was primary in character. The panel held that
the Board failed to identify substantial independent evidence
rebutting the presumption that the employees’ picketing was
lawful. The panel remanded to the Board for further
proceedings.
4 SEIU LOCAL 87 V. NLRB
COUNSEL
P. Casey Pitts (argued) and Stacey M. Leyton, Altshuler
Berzon LLP, San Francisco, California; Nicole G. Berner,
Claire Prestel, and John M. D’Elia, Service Employees
International Union, Washington, D.C.; for Petitioner.
Kellie Isbell (argued), Senior Attorney; Julie Brock Broido,
Supervisory Attorney; David Habenstreit, Acting Deputy
Associate General Counsel; Alice B. Stock, Associate
General Counsel; Peter B. Robb, General Counsel; National
Labor Relations Board, Washington, D.C.; for Respondent.
Charlotte Garden, Fred T. Korematsu Center for Law &
Equality, Ronald A. Peterson Law Clinic, Seattle University
School of Law, Seattle, Washington; Catherine L. Fisk,
Berkeley, California; for Amici Curiae Labor Law
Professors.
Jonathan C. Fritts, Michael E. Kenneally, and Richard J.
Marks, Morgan Lewis Bockius LLP, Washington, D.C.;
John C. Sullivan, Morgan Lewis Bockius LLP, Dallas,
Texas; Daryl Joseffer and Jonathan D. Urick, U.S. Chamber
Litigation Center Inc., Washington, D.C.; for Amici Curiae
Chamber of Commerce of the United States of America,
Coalition for a Democratic Workplace, Associated Builders
and Contractors, National Retail Federation, and Retail
Industry Leaders Association.
SEIU LOCAL 87 V. NLRB 5
OPINION
WATFORD, Circuit Judge:
With the help of a union, janitorial employees picketed
outside the commercial office building where they worked
to protest their low wages and poor working conditions. The
employees were fired as a result. The National Labor
Relations Act (NLRA), 29 U.S.C. § 151 et seq., ordinarily
protects employees from being fired for engaging in
concerted action to improve their wages and working
conditions. But here, the National Labor Relations Board
(the Board) held that the employees lost the protection of the
NLRA because the picketing they engaged in was unlawful.
The union that assisted the employees petitions for review of
the Board’s decision and asks that we reverse it. For the
reasons that follow, we grant the union’s petition.
I
The janitorial employees at the center of this dispute
cleaned an office building located at 55 Hawthorne Street in
San Francisco, California. The manager of the building,
Harvest Properties, Inc., hired Preferred Building Services
(Preferred) to provide janitorial services, which included
cleaning the offices of the building’s tenants. Preferred
subcontracted the work to Ortiz Janitorial Services, a sole
proprietorship owned by Rafael Ortiz (collectively, Ortiz).
The administrative law judge (ALJ) who heard this case
found that the employees were jointly employed by
Preferred and Ortiz, a finding that we accept for purposes of
this decision. As will be seen, the employees regarded
Preferred as their principal employer, although Rafael Ortiz
was the source of some of their workplace grievances.
6 SEIU LOCAL 87 V. NLRB
In the fall of 2014, several of the janitorial employees
sought help from Service Employees International Union
Local 87 (the Union) in addressing their concerns about low
wages and poor working conditions. Their workplace
grievances included being subjected to sexually
inappropriate comments from Rafael Ortiz on multiple
occasions. For example, he repeatedly suggested that
improvements in pay and working conditions were
contingent on his female employees’ having sex with him.
The president of the Union suggested that the employees
engage in a picket outside 55 Hawthorne Street to publicize
their concerns, and the employees agreed.
On October 29, the employees staged the first of two
pickets. Joined by members of the Union, the employees
walked in a circle on the sidewalk in front of the building’s
main entrance. The picketers carried signs identifying
Preferred as the target of their protest, with messages such
as “PREFERRED BUILDING SERVICES UNFAIR!” and
“WE PREFER NO MORE SEXUAL HARASSMENT.”
The picketers chanted slogans such as “Up with the union,
down with exploitation,” and “We want justice. When?
Now.” In addition, the picketers handed out leaflets to
passersby, which stated in relevant part the following (the
key language appears in italics):
Who Needs a Minimum Wage Increase?
We do.
We work for Preferred Building Services
which cleans the offices of KGO radio. We
get paid the San Francisco minimum wage of
$10.74 per hour. We endure abusive and
unsafe working conditions and sexual
harassment. The work involves heavy lifting
SEIU LOCAL 87 V. NLRB 7
and the risk of serious injury. A foreman
arbitrarily cut hours from eight hours per day
to six hours and said that any additional hours
would need to include sexual favors. The
company does not provide paid sick days that
are required by San Francisco law or pay
medical bills for injuries on the job as
required by workers compensation.
We are calling on KGO radio to take
corporate responsibility in ensuring that
their janitors receive higher wages, dignity
on the job, respect, their rights to sick pay and
workers compensation, and full legal
protections against sexual harassment and
retaliation for asserting their rights.
Vote Yes on Prop J on Nov. 4 to raise the
city minimum wage.
Join us for a picket line outside the offices of
KGO radio.
Wednesday, October 29
10 a.m.
55 Hawthorne St, San Francisco
(Emphasis added.) In a meeting with the Union’s president
several days after the first picket, the employees reported
that the building’s tenants were “upset by what they had
learned.”
The second picket took place a few weeks later, on
November 19. The picketers again walked in a circle on the
sidewalk in front of the building’s main entrance. They
again carried signs, handed out leaflets, and chanted slogans.
8 SEIU LOCAL 87 V. NLRB
The signs and slogans were substantially the same as before.
So too were the leaflets, except that the sentence calling on
KGO Radio to accept corporate responsibility was replaced
with the following sentence: “We are calling on KGO radio
and Cumulus Media as the major tenant[s] to help in getting
Preferred Building Services to listen to our demands and not
ignore us.”
While the picketing on November 19 was underway,
several of the employees, the Union’s president, and a co-
director of the San Francisco Living Wage Coalition met
with Benjamin Maxon, the building manager for Harvest
Properties. Maxon testified that, at the meeting, the Union’s
president “told us they were going to keep showing up until
we made changes, more specifically to the wage.” Maxon
informed those present that Harvest was planning to
transition away from Preferred to a unionized contractor.
That same morning, Maxon emailed Preferred’s
executive vice president, Pete Dellanini, to ask him what
Preferred was doing to remedy the situation. In a telephone
conversation that followed, Maxon told Dellanini that Rafael
Ortiz needed to be banned from 55 Hawthorne Street while
they investigated the allegations against him. Dellanini
disagreed with Maxon about the appropriate course of
action. About an hour later, Dellanini sent an email to
Maxon terminating Preferred’s cleaning contract with
Harvest, effective 30 days hence. Preferred likewise
terminated its subcontract with Ortiz for 55 Hawthorne
Street, also effective 30 days hence.
On the evening of November 19, when two of the
employees who participated in the picketing showed up for
work, Ortiz fired them. In mid-December, when Preferred
(and thus Ortiz) ceased providing janitorial services at
SEIU LOCAL 87 V. NLRB 9
55 Hawthorne Street, Ortiz terminated two other employees
who participated in the picketing.
The Union filed a charge with the Board alleging that
Preferred and Ortiz had engaged in unfair labor practices by,
among other things, discharging employees in retaliation for
their picketing and union activity. After investigating the
charge, the Board’s General Counsel filed a complaint
alleging that Preferred and Ortiz had engaged in unfair labor
practices in violation of § 8(a)(1) and (3) of the NLRA. See
29 U.S.C. § 158(a)(1), (3).
The ALJ conducted an extensive evidentiary hearing
during which the discharged employees, the Union’s
president, Maxon from Harvest Properties, Dellanini from
Preferred, and Rafael Ortiz all testified. During the hearing,
Preferred and Ortiz argued that the employees’ picketing on
October 29 and November 19 violated § 8(b)(4)(ii)(B) of the
NLRA. (That provision prohibits so-called secondary
picketing, the specifics of which we will discuss shortly.)
The employees’ unlawful conduct, Preferred and Ortiz
contended, constituted an affirmative defense to the charges
against them. The ALJ rejected that defense on the ground
that the employees’ picketing did not violate
§ 8(b)(4)(ii)(B). The ALJ further found that Preferred and
Ortiz, as joint employers, had threatened and discharged the
janitorial employees in retaliation for their picketing and
union activity in violation of § 8(a)(1) and (3) of the NLRA.
Among other relief, the ALJ ordered that the employees be
reinstated with back pay.
Upon review of the ALJ’s decision, the Board reached
the opposite conclusion. It held that the employees’
picketing violated § 8(b)(4)(ii)(B) and that, as a result of
their participation in that unlawful activity, they lost the
protection of the NLRA. The Board ordered the complaint
10 SEIU LOCAL 87 V. NLRB
against Preferred and Ortiz dismissed in its entirety. The
Union then filed this petition for review.
II
A
Although the parties have briefed a number of issues, the
only one we need to address is whether the Board erred in
concluding that the employees’ picketing violated
§ 8(b)(4)(ii)(B). That provision prohibits various unfair
labor practices, including what is known as “secondary
picketing.” The language relevant to the Board’s
determination provides:
It shall be an unfair labor practice for a labor
organization or its agents . . . (ii) to threaten,
coerce, or restrain any person engaged in
commerce or in an industry affecting
commerce, where . . . an object thereof is . . .
(B) forcing or requiring any person . . . to
cease doing business with any other person
. . . . Provided, That nothing contained in this
clause (B) shall be construed to make
unlawful, where not otherwise unlawful, any
primary strike or primary picketing.
29 U.S.C. § 158(b)(4)(ii)(B).
As the proviso makes clear, § 8(b)(4)(ii)(B) does not
prohibit unions from engaging in primary picketing—that is,
picketing “aimed at the employer with whom there is a
primary dispute” (known in labor parlance as the primary
employer). NLRB v. Operating Engineers, 400 U.S. 297,
303 (1971). Unions are free to engage in peaceful picketing
with the objective of forcing the primary employer to meet
SEIU LOCAL 87 V. NLRB 11
the union’s demands, even when such conduct “may
seriously affect neutral third parties.” Id.; see also National
Woodwork Manufacturers Association v. NLRB, 386 U.S.
612, 627 (1967). What the provision prohibits is secondary
picketing—that is, picketing aimed at a neutral third party
with the objective of forcing that party to take action that will
afford the union leverage in its dispute with the primary
employer. Section 8(b)(4)(ii)(B) thus reflects “the dual
congressional objectives of preserving the right of labor
organizations to bring pressure to bear on offending
employers in primary labor disputes and of shielding
unoffending employers and others from pressures in
controversies not their own.” NLRB v. Denver Building &
Construction Trades Council, 341 U.S. 675, 692 (1951).
A violation of § 8(b)(4)(ii)(B) has two elements. First, a
labor organization must engage in conduct that coerces,
threatens, or restrains a person engaged in commerce,
typically a neutral employer not involved in the union’s
dispute. Second, an object of that conduct must be, as
relevant in this case, to force or require the neutral employer
to “cease doing business” with the primary employer. This
second element does not require a showing that the union
literally sought to force the neutral employer to terminate its
business relationship with the primary employer. Operating
Engineers, 400 U.S. at 304. The element is also satisfied
when the union seeks to force the neutral employer “to bring
pressure on the [primary] employer to agree to the union’s
demands.” Id. at 303. Thus, picketing has an impermissible
secondary object in violation of § 8(b)(4)(ii)(B)’s “cease
doing business” element when it (1) is aimed at a neutral
employer, and (2) seeks to force that employer either to cut
ties with the primary employer or to pressure the primary
employer into making changes to its labor policies. (One can
think of the second element as itself having two subparts.)
12 SEIU LOCAL 87 V. NLRB
As to the first element, the ALJ in this case held that the
employees’ picketing qualified as coercive conduct because
it involved patrolling back and forth in front of the entrance
to 55 Hawthorne Street. The Board did not disturb that
finding. The Union and its supporting amici raise a serious
First Amendment challenge to the ALJ’s coercion
determination, but the Board counters that the Union waived
this challenge by raising it below for the first time in a
motion for reconsideration. We need not resolve either
party’s contentions concerning the coercion element because
we conclude that the Board’s finding as to the second
element—that an object of the employees’ picketing was to
coerce neutral employers Harvest Properties and KGO
Radio to “cease doing business” with Preferred—is not
supported by substantial evidence. See 29 U.S.C. § 160(e);
Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951).
B
Determining whether picketing has an impermissible
secondary object can be tricky when, in cases like this one,
the picketing occurs at a location occupied by both the
primary employer and one or more neutral employers. That
was true here because the site of the picketing—
55 Hawthorne Street—was not only a location where the
employees’ primary employer (Preferred) performed work,
but also the location of the building’s manager (Harvest
Properties) and the building’s tenants (such as KGO Radio).
Picketing outside the building’s main entrance would thus
be likely to draw the attention of both the primary and neutral
employers.
To assist in distinguishing between permissible and
impermissible picketing at a location shared by primary and
neutral employers, the Board has developed a set of four
criteria drawn from Sailors’ Union of the Pacific (Moore
SEIU LOCAL 87 V. NLRB 13
Dry Dock Co.), 92 N.L.R.B. 547 (1950). Those criteria
focus on whether: (1) “[t]he picketing is strictly limited to
times when the situs of [the] dispute is located on the
[neutral] employer’s premises”; (2) “at the time of the
picketing the primary employer is engaged in its normal
business at the situs”; (3) “the picketing is limited to places
reasonably close to the location of the situs”; and (4) “the
picketing discloses clearly that the dispute is with the
primary employer.” Id. at 549. When each of these criteria
is satisfied, a rebuttable presumption arises that the picketing
constituted lawful primary activity. See Electrical Workers
v. NLRB, 366 U.S. 667, 677 (1961).
The Board erred in its application of the Moore Dry Dock
criteria in this case. No one disputes that the first three
criteria were satisfied, but the Board concluded that the
fourth criterion was not. The Board predicated this
conclusion on the thinnest of reeds. It conceded that the
signs carried by the picketers disclosed that the employees’
dispute was with their primary employer, Preferred.
However, according to the Board, that message was
obfuscated by language in the leaflets distributed to
passersby during the picketing on October 29. In particular,
the Board focused on one sentence in the leaflets that read:
“We are calling on KGO radio to take corporate
responsibility in ensuring that their janitors receive higher
wages, dignity on the job,” etc. (Emphasis added.) The
Board reasoned that by using the word “their” in this
sentence, the picketers “led the public to believe that KGO—
who was not involved in the dispute—was their employer
and had the ability to adjust their working conditions.”
We do not think the Board’s reasoning can withstand
scrutiny, even granting the Board the deference it is due. The
one sentence on which the Board focused cannot be viewed
14 SEIU LOCAL 87 V. NLRB
in isolation; it must be considered in light of the evidence as
a whole. See United Association of Journeymen v. NLRB,
912 F.2d 1108, 1110 (9th Cir. 1990). The most important
evidence relating to the identity of the party with whom the
employees had a dispute was the message displayed
prominently on the signs the picketers were carrying:
“PREFERRED BUILDING SERVICES UNFAIR!” The
signs never mentioned KGO Radio or any other neutral third
party and thus left no doubt that the employees’ dispute was
with Preferred alone. Consequently, this case is unlike the
typical case in which the Board finds the fourth Moore Dry
Dock criterion to be unmet: one in which the union fails to
identify the primary employer at all. See, e.g., Service
Employees International Union Local 87 (Pacific
Telephone), 279 N.L.R.B. 168, 175 (1986); Local 32B-32J,
Service Employees International Union, 250 N.L.R.B. 240,
244–45, 247–48 (1980).
Contrary to the Board’s conclusion, the reference to
KGO Radio in the leaflets did not dilute the clarity of the
message disclosed by the signs. At the outset, the leaflets
themselves clearly described the relationship between the
employees, Preferred, and KGO Radio: “We work for
Preferred Building Services which cleans the offices of
KGO radio.” (Emphasis added.) The relationship described
is one familiar to members of the general public, in which
janitorial workers are employed by a janitorial services
company hired to clean the offices of a multi-tenant building.
In light of the upfront disclosure that the employees worked
for Preferred and cleaned the offices of KGO Radio, readers
of the leaflets would have understood the subsequent
statement calling on KGO Radio to accept corporate
responsibility for “their” janitors to refer to the company in
its capacity as a tenant of the building benefitting from the
employees’ labor, not as their employer. That understanding
SEIU LOCAL 87 V. NLRB 15
is even more inescapable with respect to the leaflets
distributed on November 19, which replaced the sentence the
Board found problematic with a sentence reiterating that
Preferred was the entity with whom the employees had a
dispute: “We are calling on KGO radio and Cumulus Media
as the major tenant[s] to help in getting Preferred Building
Services to listen to our demands and not ignore us.”
(Emphasis added.) The Board itself has previously held that
referring to neutral parties in picketing materials is
permissible as long as it remains clear that the dispute is with
the primary employer. In re Pacific Northwest District
Council of Carpenters, 339 N.L.R.B. 1027, 1029 (2003).
The combination of the picket signs and the leaflets,
considered in their entirety, clearly disclosed that the
employees’ dispute was with Preferred and not with any of
the building’s tenants. The Board therefore erred in finding
that the fourth Moore Dry Dock criterion was not met and in
failing to afford a presumption of lawfulness to the
employees’ picketing.
C
The presumption of lawfulness afforded by the Moore
Dry Dock criteria is a rebuttable one, and the Board held that
even if the presumption applied, it was rebutted by
independent evidence that the employees’ picketing had a
prohibited secondary object—namely, to pressure Harvest
Properties to “cease doing business” with Preferred.
29 U.S.C. § 158(b)(4)(ii)(B). 1 In our view, the Board’s
1
In concluding that there was independent evidence of a secondary
object, the Board exclusively relied on evidence pertaining to Harvest.
The Board cited no independent evidence suggesting that the employees
had a “cease doing business” object as to KGO Radio or any other tenant
of 55 Hawthorne Street.
16 SEIU LOCAL 87 V. NLRB
conclusion is not supported by substantial evidence. The
record shows that, throughout “the entire course of conduct”
at issue here, the target of the employees’ picketing was
always Preferred, not Harvest. Local 560, International
Brotherhood of Teamsters (County Concrete Corp.),
360 N.L.R.B. 1067, 1068 (2014).
In Operating Engineers, the Supreme Court fleshed out
what it means for a union to act with a prohibited secondary
object. 400 U.S. at 303–05. In that case, the operating
engineers’ union had a dispute with the primary employer,
White Construction, one of three subcontractors hired by
neutral party Burns & Roe, the general contractor. The
union informed Burns & Roe that its members intended to
strike unless Burns & Roe signed a contract, which would
have been binding on all three subcontractors, acceding to
the union’s demands. When Burns & Roe refused, the
operating engineers employed by all three subcontractors
walked off the job and threatened Burns & Roe and the
subcontractors with further work stoppages. Id. at 300–01.
There was no dispute that the union had engaged in
coercive conduct. See Brief for Respondent at 5–6, NLRB v.
Operating Engineers, 400 U.S. 297 (1971) (Nos. 40, 42),
1970 WL 121901, at *5–6. The only issue was whether the
union had acted with an impermissible secondary object. As
noted earlier, the Court held that the “cease doing business”
element of the statute could be met by showing that the union
sought to force the neutral employer either to terminate its
contract with the primary employer or to pressure the
primary employer into changing its labor policies. 400 U.S.
at 305.
Before reaching the question of what qualifies as a
“cease doing business” objective, however, the Court first
analyzed whether the union had even engaged in secondary,
SEIU LOCAL 87 V. NLRB 17
as opposed to primary, activity. Id. at 303. Distinguishing
between the two types of conduct requires an inquiry into the
union’s intent. If a union engages in coercive conduct
directed at the primary employer merely hoping that neutral
parties will be induced to take action supportive of the
union’s cause, its conduct remains primary in character and
is not forbidden by § 8(b)(4)(ii)(B). See Electrical Workers,
366 U.S. at 673. The union’s conduct loses its primary
character only when an object of that conduct is coercing one
or more neutral parties into taking action supportive of the
union’s cause. Determining whether the union acted with
the requisite intent often requires “the drawing of lines more
nice than obvious,” but it is a task the statute nonetheless
compels. Id. at 674.
In Operating Engineers, “the normally difficult task of
classifying union conduct” as primary versus secondary was
“easy.” 400 U.S. at 303. The union’s coercive activity was
“aimed directly” at neutral parties—namely, Burns & Roe
and the two subcontractors not involved in the primary
dispute. Id. at 303–04. The union engaged in a strike against
these neutral parties “for the specific, overt purpose of
forcing them to put pressure on White,” the primary
employer. Id. at 304. Thus, the union exerted coercive
pressure that was “unmistakably and flagrantly secondary.”
Id.In our case, while the Union may have engaged in
coercive activity (picketing and patrolling), the Board’s
finding that it constituted secondary, as opposed to primary,
activity is not supported by substantial evidence. Because
the Union’s picketing complied with the Moore Dry Dock
criteria, a rebuttable presumption arose that it was primary
in character. In concluding that there was independent
evidence of a secondary object sufficient to rebut that
18 SEIU LOCAL 87 V. NLRB
presumption, the Board relied most heavily on statements
made during and after the November 19 meeting that
occurred while picketing was underway. As noted earlier,
several of the employees, the Union’s president, and a co-
director of the San Francisco Living Wage Coalition met
with Maxon of Harvest Properties. Maxon recalled that the
Union’s president told him at the meeting that the picketers
would “keep showing up until we made changes” to the
employees’ wages, which the Board interpreted as “until
[Maxon] made changes” to the wages. (Emphasis added.)
We do not think this statement can bear the weight the
Board placed upon it. By stating that the employees would
“keep showing up,” the Union indicated that the employees
would continue to engage in the same type of picketing they
had engaged in earlier. But that picketing was directed
solely at Preferred, not Harvest. At no point was Harvest
ever mentioned in any of the picketers’ signs, leaflets, or
chants, and nothing else that transpired during the picketing
suggested that, despite their focus on Preferred, the picketers
also sought to place coercive pressure on Harvest. The
statement made during the meeting on November 19 did not
reveal a new, previously hidden object of the picketing
already underway, nor threaten future picketing that would
be secondary in character. Even deferring, as we must, to
the Board’s reading of the statement, Maxon’s inference that
the picketing would stop if he helped to increase wages does
not reveal a secondary object or even the Union’s precise
statement. Maxon’s recollection is consistent, for example,
with the Union’s having stated that it would continue to
picket until wages were increased generally, without
specifying who should make that change. Indeed, Maxon
could not recall whether the Union had asked him to “talk to
Preferred or talk to somebody about raising wages,” even
though that would have been the most obvious request for
SEIU LOCAL 87 V. NLRB 19
the Union to make if it were, in fact, trying to coerce Harvest
into pressuring Preferred.
The Board’s decision in County Concrete illustrates the
distinction between picketing with an impermissible
secondary object of coercing a neutral employer and
picketing that remains directed solely at the primary
employer. In that case, the Board addressed two different
conversations between union representatives and neutral
employers, one that it found to reflect an unlawful secondary
object, the other that it found to be lawful. In the first
conversation, the union’s president told the neutral employer
that if he did not switch to a supplier paying higher wages,
the union would be “putting a picket line against you”—i.e.,
the neutral employer—and told him to reconsider “[b]efore
you run into a problem.” 360 N.L.R.B. at 1069 (emphasis
added). Based on those statements, the Board found that
“the threatened picketing was specifically aimed at [the]
neutral employer.” Id. at 1070.
In the second conversation, the union agent told the
neutral employer that the primary employer would have to
pay the area standard wages “or else he would picket the
job.” Id. at 1071 (emphasis in original). The union agent
then told the neutral employer that if he did not want the
union to picket the primary employer at the jobsite, he
“would have to get somebody else because [the primary
employer] is not paying the wages.” Id. at 1072. The Board
deemed this second conversation to be “a textbook
illustration of a lawful, primary objective,” emphasizing that
the union never threatened to establish a picket line against
the neutral employer. Id. at 1071.
The Union’s statement to Maxon that the employees
would “keep showing up” unless Maxon made changes to
their wages is akin to the second conversation in County
20 SEIU LOCAL 87 V. NLRB
Concrete. The Union was simply explaining “the realistic
options that [Maxon] had available if [he] did not want the
Union to picket [Preferred] at the jobsite.” Id. at 1072. It
would be a different matter if the Union had told Maxon, “If
you don’t make changes to our wages, we will keep showing
up to picket you.” In that case, the Union’s statement would
be akin to the first conversation in County Concrete,
evincing an unlawful intent to coerce a neutral employer.
The actual conversation that took place, though, contained
no indication of such an intent.
To support its finding of an impermissible secondary
object, the Board also relied on the Union president’s
statement to Maxon that it seemed “inappropriate” that
Rafael Ortiz was still working at 55 Hawthorne given the
allegations against him. But the Union’s president made this
statement while explaining why the employees were
picketing. The Board has previously held that simply
informing a neutral employer about the nature of a labor
dispute does not establish an unlawful secondary object. See
Carpenters District Council of Detroit & Southeastern
Michigan, 322 N.L.R.B. 612, 612 (1996). Moreover, Maxon
stated that the Union never asked him to ban Rafael Ortiz
from the building, much less demand that he take such action
on threat of picketing directed against Harvest. Instead, as
Maxon testified, he made the decision to ban Rafael Ortiz
from the building of his own volition.
The remaining evidence on which the Board relies does
even less to rebut the presumption of lawfulness. The Board
noted that, during the November 19 meeting, the employees
were “happy” when Maxon told them that Harvest planned
to look for a unionized contractor to replace Preferred. That
the employees were pleased by this news does not show that
Harvest’s decision came about as a result of unlawful
SEIU LOCAL 87 V. NLRB 21
secondary picketing. To the contrary, Maxon testified that
Harvest had already been planning to transition to a union
contractor either before or around the time of the picketing,
and the ALJ found no evidence to connect that decision to
the picketing. “The objectives of any picketing include a
desire to influence others” to take actions favorable to the
employees’ cause. Electrical Workers, 366 U.S. at 673.
That others are moved to do so, and that the employees are
“happy” about that outcome, does not transform a lawful
primary picket into an unlawful secondary one. See Ramey
Construction Co. v. Local Union No. 544, 472 F.2d 1127,
1131 (5th Cir. 1973).
The Board further noted that, after the meeting with
Maxon, one of the employees announced to the other
picketers, “it seems to me that the negotiations . . . were
successful and we gained a victory,” referring to the fact that
Rafael Ortiz had been banned from the building. Another
employee stated, “we spoke with the building manager and
he suspended our employer and promised there will be
changes and respect for us.” But a union is free to speak
with, and even to negotiate with, a neutral employer as long
as those discussions do not take place in the shadow of
coercive conduct directed against the neutral employer. See
Carpenters v. NLRB, 357 U.S. 93, 99 (1958).
Finally, the Board relied on the employees’ reports that
the building’s tenants were “upset” about the picketing as
evidence that the employees had an impermissible secondary
object, citing Service Employees International Union Local
525 (General Maintenance Co.), 329 N.L.R.B. 638 (1999).
In that case, the janitorial union had engaged in “trashing
episodes,” which involved storming building lobbies and
strewing trash around, in order to pressure tenants to demand
that the building owners force the janitorial contractors to
22 SEIU LOCAL 87 V. NLRB
resolve the dispute. Id. at 664–65. In finding that the union
had an impermissible secondary object, the Board relied on
a union agent’s statements in a radio broadcast that neutral
tenants were “upset” by the trashing episodes. Id. at 680.
The reaction of the tenants was relevant evidence there
because the union directly targeted the buildings’ tenants and
owners with its coercive activity. In this case, by contrast,
the Union never engaged in coercive conduct targeting
Harvest or any of the building’s tenants. Additionally, while
in General Maintenance the tenants were upset about the
union’s trashing of their buildings, here the tenants were
“upset by what they had learned” from the demonstrations—
presumably, that Preferred was not treating its employees
well. The evidence about the emotional reaction of the
tenants in this case merely suggests that the Union was
successful in gaining the sympathies of others through its
primary picketing.
* * *
In short, the Board failed to identify substantial
independent evidence rebutting the presumption that the
employees’ picketing was lawful. The Union never made
any statements or took any actions indicating that an
objective of its picketing was to coerce Harvest into
pressuring Preferred to meet the employees’ demands.
Certainly, the picketing led to disruption of the business
relationship between Harvest and Preferred. Ultimately,
Preferred cancelled its contract with Harvest, and Harvest
then hired a unionized contractor. But, as the Supreme Court
has noted, “[s]ome disruption of business relationships is the
necessary consequence of the purest form of primary
activity.” Operating Engineers, 400 U.S. at 304.
The Board erred in concluding on this record that the
employees’ picketing violated § 8(b)(4)(ii)(B) of the NLRA.
SEIU LOCAL 87 V. NLRB 23
We remand to the Board for further proceedings consistent
with this opinion.
PETITION FOR REVIEW GRANTED; CASE
REMANDED.