When is the display of a picket sign not picketing? An arbitrator said that just having the sign in your car is in fact picketing. The NLRB rejects that idea, saying it’s not picketing unless somebody holds the sign, opening the door to a confrontation.

In a recent case before the NLRB, a union was planning to picket at Verizon New England shortly before the expiration of the parties’ labor contract. Employees were planning to walk with picket signs stating “Honor our Contract.”

Three weeks before the picketing was scheduled to start, the employees began displaying these picket signs in their cars when they were parked in the company parking lots.

The company told the employees not to leave their picket signs displayed in their cars. The employees removed the signs and no one was disciplined. Still, the union filed an unfair labor practice charge and the board’s regional director deferred the case to the parties’ grievance process under their contract.

The arbitrator denied the grievance and found that the employees had violated a provision in their contract against picketing. The board majority declined to defer to the arbitration award and found instead that the company had unlawfully interfered with the employees’ rights under the NLRA.

Board Chairman Mark Gaston Pearce and Member Kent Y. Hirozawa said the arbitrator’s award, which cited an 1897 book on picketing, was “clearly repugnant” to the act. The union had a practice of engaging in informational picketing before the end of their contract terms, the board majority said, observing that the company had never previously complained that this practice violated the contract’s ban on picketing.

The board majority pointed to a statement in the award that “picketing is: to inform the public of the Union’s concerns” and noted that the award failed to refer to any board or court decisions that defined picketing. While the board has found, in some circumstances, that stationary signs can constitute picketing, Pearce and Hirozawa said, the board had relied on the presence of people near the signs. 

In a dissent, Member Harry Johnson said that the board has held that signs placed in a car can be considered picketing when they are also carried by employees walking a picket line. He found that the union “clearly and unmistakably” waived the employees’ right to picket in the parties’ contract.

Pearce and Hirozawa disagreed. They found no evidence that the parties intended the contract’s ban on picket to include displaying signs in employees’ vehicles. Instead, they concluded, the company’s instruction to the employees to remove the signs was unlawful.

The board ordered the company to post a notice at its facility stating that it would not tell employees not to display signs in their personal vehicles while parked in its parking lots by its facilities.

It remains to be seen whether federal appeals courts will follow the board’s interpretation of the parties’ intent and whether parties will be expected to know that the display of picket signs does not always equal picketing. One might wonder whether the result would be the same if the employees had been driving around the company’s parking lots with the signs displayed in their cars.

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