D.C. Circuit Overturns NLRB Decision

Union's Arsenal of Protest Activity Expanded

A decision by the United States Court of Appeals for the District of Columbia Circuit, may provide unions more freedom to conduct protest activities in support of organizing efforts.

The D.C. Circuit recently upheld as lawful a mock funeral staged by the Sheet Metal Workers Union across the street from a hospital in support of the Union's efforts to get the hospital to stop using a non-union construction firm. During the Union's theatrics, which were accompanied by loud funeral music, one Union representative dressed up and paraded as the "grim reaper" while four other individuals carried a fake casket in procession. Occasionally, the Union representatives would hand out leaflets describing medical malpractice claims against the hospital which carried the headline: "Going to Brandon Hospital Should Not Be a Grave Decision."

Though recognizing that the Union's theatrics may have been unsettling and highly offensive to some of the hospital's visitors (the NLRB went so far as to characterize it as a "death march"), the court concluded that the Union's conduct was nonetheless protected by the First Amendment because it was neither coercive, threatening, restraining, nor intimidating to the hospital's patrons. Indeed, the court concluded that the Union's overall behavior was orderly, disciplined, and somber – "as befits a funeral." In essence, the court said the Union put on a great show.

This decision may give rise to creative protest activities that could affect you and your business. Whether it be the SEIU and its "Justice for Janitors" campaign, or the activities of another union, you can be sure that this decision will embolden local unions to engage in public displays designed to embarrass non-union employers whose employees the union wants to represent.

If you have questions about the NLRB decision, please contact Michael Boldt at michael.boldt@icemiller.com.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice.  The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.