Primer on Unlawful Area Standards Picketing

This is one of the more confusing areas of labor law, so don’t feel bad if you don’t fully understand the concept of secondary picketing or unlawful area standards picketing. Most lawyers who dabble in labor law don’t understand it, either. Seek competent legal advice from a full-time labor lawyer if you are concerned that a union is engaging in this type of picketing against your company.

County Concrete’s (CC) ready-mix drivers had been represented by the Teamsters Local 560 since 2009, but during that time there was not been a collective bargaining agreement between CC and the union. During that timeframe, the Teamsters tried desperately to get companies to refrain from doing business with CC because CC did not have a contract with the Teamsters. This is called unlawful secondary boycotting or picketing (when pickets are used), or since it deals with the construction industry, unlawful area standards picketing.

On April 11, 2011, the Local 560 President sent a letter to companies who were parties to collective bargaining agreements between Local 560 and the Associated General Contractors of New Jersey, Building Contractors Association of New Jersey, and the Utility and Transportation Contractors Association. The letter threatened to engage in area standards picketing at jobsites when CC was delivering concrete.

On November 1, 2011, the Local 560 President threatened to picket Sharpe Concrete at the St. Peter’s College jobsite with the intent to force Sharpe to cease doing business with CC. This threat violated Section 8(b)(4)(ii)(B) of the National Labor Relations Act.

On December 30, 2011, a Local 560 business agent threatened Macedos Construction that if Macedos did not find a concrete supplier other than CC on the Novartis parking garage project that Local 560 would picket the job. This threat also violated Section 8(b)(4)(ii)(B) of the Act.

On February 28, 2013, the Local 560 President sent out a “Winter Update” newsletter that said:

In the past, Local 560 would contact the contractor who had inadvisedly purchased from County Concrete or other substandard concrete supplier and provide the respectful courtesy of advance notice of picketing so that the contractor can be made aware and at its option make arrangements. Due to the recent claims that such courtesy notices were viewed as “threats,” Local 560 will no longer provide advanced notice of picketing. If you are going to utilize County Concrete be well aware that Local 560 will be showing up at your project with picketing and will no longer provide you with advanced notice.

Local 560 does not seek to enmesh your company in its dispute with County Concrete. Whichever redi-mix company you decide to utilize, we recommend prudence be taken to determine what rates of pay and benefits the Company pays its drivers.

Section 8(b)(4)(ii)(B) prohibits labor organizations and their representatives from threatening, coercing, or restraining any person engaged in commerce where an object thereof is forcing or requiring any person to cease doing business with any other person.

The National Labor Relations Board has held that an unqualified threat to picket a neutral employer’s jobsite where the primary employer is also working violates Section 8(b)(4)(ii)(B) absent assurances that picketing will be conducted in accordance with the Moore Dry Dock legal standards. (Moore Dry Dock is another post for another day)

However, compliance with Moore Dry Dock standards does not preclude a finding of unlawful picketing where there is independent evidence of a secondary objective.

The Winter Update newsletter, on its face, was motivated by the union’s intention to discourage signatory contractors from doing business with County Concrete. Yet, area standards picketing is presumptively valid when a union complies with the Moore Dry Dock standards. And the Winter Update, which was sent only to County Concrete’s potential customers, could of had just one objective: to discourage neutral employers from ordering concrete from CC. Moreover, there was no way to segregate the statements in the Winter Update from the union’s continuing 3-year quest to discourage union contractors from doing business with County Concrete.

In conclusion, by sending its Winter Update letter to employers who are signatory to a collective bargaining agreement with it, Teamsters Local 560 engaged in unfair labor practices within the meaning of Section 8(b)(4)(ii)(A) and (B) of the National Labor Relations Act.

Matt Austin is a Columbus, Ohio lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. Austin Legal’s Concierge Legal Services program is relied upon by companies to remain compliant and competitive. If you have employees, you need Concierge Legal Services. You can call Matt at (614) 285-5342 or email him at Austin@LaborEmploymentOSHA.com.

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