The National Labor Relations Board’s General Counsel's Office's Division of Advice has concluded that a union seeking to organize a construction employer’s drywall workers did not violate Section 8(b)(1)(A) of the National Labor Relations Act by  following the employer’s supervisors and managers aggressively in cars from the employer’s main office to various jobsites in the Phoenix area.  Southwest Regional Council of Carpenters and Carpenters Local 1506, Case No. 28-CB-102769 (August 28, 2013).

Arok, Inc. (“Employer”) is  a metal frame and drywall contractor.   For many years, Southwest Regional Council of Carpenters and Carpenters Local 1506 (“Union”) had been trying to organize the Employer’s drywall workers. At the Union’s behest, its members began following the Employer’s supervisors and managers from the Employer’s main office to various jobsites around Phoenix, sometimes by driving aggressively, including running red lights, to maintain pace with the employer’s supervisors.

The Employer filed an unfair labor practice charge against the union under Section 8(b)(1)(A) of the NLRA, which prohibits restraint and coercion of employees by unions. The Regional office of the NLRB asked the Division of Advice to help it decide whether the charge had merit and whether a complaint should be issued. The Division decided the charge should be dismissed if not withdrawn.

The Division noted that, in the past, the NLRB had found unlawful  under the NLRA union conduct such as throwing of rocks and placing tacks in the roads, assaulting employees and supervisors, damaging vehicles, preventing people and vehicles from entering onto company premises, threats from pickets, fights; beatings, and  mass picketing activity that, when directed at employees, would unlawfully restrain and coerce them.

In contrast, the Division noted the NLRB has found that lesser conduct directed at employees, where “[n]o one is injured, nothing was thrown, no one was prevented from going to work or leaving, and no vehicle was harmed or excluded from the premises,” does not violate Section 8(b)(1)(A).

The Division decided the "Union’s conduct did not rise to the requisite level of unlawful restraint or coercion” because the union agents did not “verbally threaten [the employer’s managers or supervisors] or engage in any other intimidating conduct toward them.” The Division also determined that no violation had occurred because the union agents had not followed any employees protected by the NLRA. (Supervisors are not protected by the NLRA). The Division noted that a violation of 8(b)(1)(A) does not require that the unlawful conduct be directed against the employees protected by the law; if the employees either witnessed or learned of unlawful conduct directed at supervisors or managers, a violation also could be found.

The labor movement has embraced aggressive organizing tactics; this case highlights just one example. This case also underscores the unreasonable lengths to which the NLRB will permit unions to go to achieve their ends.