SEIU Appeal Implicates Strikes, Worker Actions Across U.S.

From Labor & Employment on Bloomberg Law

February 15, 2019

By Hassan A. Kanu

A janitors’ union in San Francisco has taken on a court battle with major implications for what workers can do to protest their employers’ practices, and the fight starts immediately in the wake of a government finding that more individual Americans went on strike in 2018 than any year since 1986.

The Service Employees International Union filed a federal court appeal to challenge a labor board ruling that a group of subcontracted janitors were justifiably fired for picketing at the building where they worked. The workers were objecting to low pay and alleged sexual harassment by a supervisor, according to the union.

The National Labor Relations Board held that the workers weren’t covered by federal labor laws because they were trying to convince a ‘secondary employer'—the property management company—to cut ties with their own. SEIU has appealed, and is also arguing that the workers were protected by the First Amendment’s free speech rights.

The SEIU’s case pits workers’ rights under the National Labor Relations Act and the First Amendment squarely against those of employers, and could have important practical implications for labor-employment relations across the country.

Although the picketing workers weren’t on strike, the NLRB’s decision has significant effects on what workers can do, as a general matter, to influence employers’ working terms and conditions. The appeal takes on more significance with the backdrop of the Bureau of Labor Statistics’ recent findings that 2018’s 20 major work stoppages and strikes involving more than 1,000 workers were the most in the U.S. since 2007.

Attorneys with SEIU and SEIU 32BJ filed the Feb. 7 appeal on behalf of Local 87, the San Francisco affiliate that represents janitors. The larger umbrella organization is the second-largest union in the country, with over 2 million members.

‘Coercive’ Conduct?

The workers, who were directly employed by Ortiz Janitorial Services, picketed in front of the building where they worked. Their signage called out a building tenant to act. Their backers at SEIU and the San Francisco Living Wage Coalition also pressured the building’s management firm to do something to improve their working conditions under OJS.

The NLRB in August 2018 said the groups’ conduct violates a law that permits what’s known as “secondary picketing,” but prohibits “coercive conduct” to force a secondary employer to cut ties with the primary employer.

SEIU took the dispute to the U.S. Court of Appeals for the Ninth Circuit after a three-member Republican majority on the labor board declined to reconsider the issue. The case involves important questions about free speech in the workplace context: where, and why, the boundaries should be drawn.

“By construing the NLRA to prohibit non-coercive picketing, leafleting, and speech simply because the workers asked the managers and tenants of the building where they worked to help them improve the unjust working conditions in that building, the Board engaged in content-based discrimination in a manner that cannot survive modern First Amendment scrutiny,” the SEIU told Bloomberg Law in an email ahead of their appeal.

The NLRB didn’t immediately respond to a request for comment. The board generally refrains from commenting on ongoing proceedings.

The case is SEIU v. NLRB, 9th Cir., No. 19-70334, appeal filed 2/7/19.


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