Employment Law Daily NLRB: Janitorial subcontractor’s employees engaged in unprotected secondary picketing
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Wednesday, September 5, 2018

NLRB: Janitorial subcontractor’s employees engaged in unprotected secondary picketing

By Lisa Milam, J.D.

Addressing worker picketing in the context of multiple employers at a common situs within a “fissured industry,” a three-member NLRB panel held that janitors employed by the subcontractor of a building services company were engaged in unlawful secondary picketing where their picket signs urged a key tenant of the building in which they cleaned offices to “take corporate responsibility” to help improve their working conditions. Consequently, their conduct was not protected under the NLRA, and their employer did not violate the Act by discharging them (Preferred Building Services, Inc., August 28, 2018).

Picketing. The janitors worked for OJS, a small janitorial subcontractor owned by Rafael Ortiz. OJS has contracts with Preferred Building Services, Inc., which is a contractor for Harvest Properties, which owns an office building on Hawthorne Street, where KGO Radio is one of the building’s biggest tenants. The janitors clean KGOs offices in the Hawthorne Street building.

Eager to air their complaints about wages and working conditions, the janitors picketed in front of the Hawthorne Street building. They marched in front of the lobby chanting slogans like, “up with the union, down with exploitation.” (The janitors had first brought their concerns to the president of the SEIU local.) They also distributed leaflets calling for a minimum wage increase (they also had complained to leaders of the local “living wage” group). In addition, they carried signs bearing slogans like “PREFERRED BUILDING SERVICESUNFAIR!”and “WE PREFER NO MORE SEXUAL HARASSMENT.”

The picketers’ signage primarily addressed KGO Radio. They read, “We work for Preferred Building Services which cleans the offices of KGO radio,” and gave details about the abusive work conditions they endure. For one, they claimed that Ortiz cut their hours and demanded sexual favors in order to restore them. The janitors expressly called upon KGO “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.” Neither OJS (their direct employer) nor Harvest Properties (the contractor’s client) was mentioned by name on the signs or leaflets. The janitors repeated the pickets a few weeks later.

The fallout. In a meeting with Harvest Properties, the union and living wage coalition told the company they would keep showing up until the janitors’ working conditions improved. So the building manager asked Preferred to investigate the janitors’ allegations, and instructed that Ortiz would not be allowed on the premises until the investigation was complete. This prompted a celebratory announcement to the other janitors that the picketers’ efforts had succeeded—that “the person that we wanted to leave it seems has been let go.” The building manager had suspended the employer “and promised there will be changes and respect for us,” one picketer relayed in a video that aired on local TV and the union’s YouTube page.

Rather than investigate, though, Preferred cancelled the cleaning contract with Harvest Properties, and in turn, notified OJS that it was cancelling its corresponding subcontract. Ortiz discharged two of the picketers immediately; the other two were let go when the contract expired the following month. Harvest replaced Preferred with a unionized contractor.

Secondary picketing. An administrative law judge found that Preferred committed numerous unfair labor practices in response to the picketing. The company argued these adverse actions did not violate the NLRA, though, because the janitors had engaged in unlawful secondary picketing and, as such, lost the protections of the Act.But the ALJ rejected this notion out-of-hand, and would not allow the employer to even attempt to establish the affirmative defense. In the ALJ’s view, the janitors had engaged in coercive picketing, but they did not have a prohibited secondary object, and therefore they did not breach Section 8(b)(4)(ii)(B) of the Act. She reasoned that the picketing complied with the four criteria set forth in Moore Dry Dock Co. Their signs clearly indicated Preferred was their primary employer (as she had found it was their joint employer, along with OJS), and she saw no independent evidence of a prohibited secondary object.

The Board disagreed. The ALJ erred first by prematurely rejecting the employer’s affirmative defense and then by refusing to allow the company to present evidence in support of its defense. The Board then found that, even without employer-proffered evidence, there was enough independent evidence to establish that the janitors engaged in unlawful secondary picketing with an impermissible purpose.

Impermissible object. “In cases involving multiple employers at a common situs, there is a strong rebuttable presumption that picketing is unlawful if it fails to comply with the Moore Dry Dock criteria,” the Board said. But picketing can be found unlawful even when it meets those criteria if there is evidence, based on the picketers “entire course of conduct,” that the picketing had an impermissible secondary purpose. “Section 8(b)(4)(ii)(B) prohibits threatening or coercive conduct that has an object to force a secondary employer—a neutral—to cease doing business with a primary employer, i.e., the employer with whom a labor dispute exists,” the Board explained.

Here, even if the janitors satisfied Moore Dry Dock criteria, they clearly were hoping to persuade their employer’s client to take action, which the statute prohibits. The picketers pressured Harvest Properties into removing Ortiz, and made it clear in the video released the same day that they intended to pressure the building manager into initiating changes to their working conditions.

Moore Dry Dock criteria not met. At any rate, the picketing did not meet the Moore Dry Dock criteria anyhow, because the janitors did not clearly indicate their dispute was with Preferred (ostensibly as their joint employer, although the Board didn’t need to take up this question). While their picket signs named Preferred, their leaflets asked KGO to ensure that “their” janitors can secure better working conditions. This language could misled the public into thinking that their beef was with KGO, who was not involved in the dispute, and that the tenant had the ability to remedy their plight. And it served as independent evidence of their impermissible object: to disrupt the relationship between their employer and its client. In this case, they succeeded.

“That Preferred, not Harvest, cancelled the contract is irrelevant in these circumstances,” the Board said. “The fact remains that an object of the picketers was to pressure Harvest, a neutral employer, to cease doing business with Preferred unless it increased wages for janitorial employees working in that building and removed Ortiz.” Further evidence of a prohibited secondary object? The fact that the picketers boasted that other neutral tenants were “upset” to hear about their poor working conditions. Finding ample evidence of an impermissible motive, the Board held the janitors engaged in unlawful secondary picketing. Consequently, their employer did not violate the Act by discharging them, the Board held, reversing the ALJ.

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