Free speech, religious freedom claims stall in parking structure labor dispute

Transition is the order of the day at the National Labor Relations Board, as Trump Administration policies take hold and key appointments beckon. New leadership should support the sound National Labor Relations Act (NLRA) application exhibited in an early-May decision tied to a 2016 cast-in-place parking structure project.

Administrative Law Judge Mary Miller Cracraft recommends the Board adopt her findings of NLRA violations by the International Association of Bridge, Structural, Ornamental, and Reinforcing Iron Workers, Local 229, San Diego. The recommendation caps a decision detailing Local 229 actions—and tandem stunts of Operating Engineers Local 12, Whittier, Calif.—directed at Western Concrete Pumping Inc. (WCP) through a peer in reinforcing steel and post-tensioning, Commercial Metals Co. or CMC Rebar. Both were subcontractors to McCarthy Building Companies Inc. on a four-story parking structure at the Pechanga Resort & Casino in Temecula, Calif.; each claimed a labor dispute with WCP over paying workers to area standards, but was not similarly engaged with CMC Rebar, an Iron Workers Master Labor Agreement signatory.

In support of its labor dispute with WCP, Local 12 members began four months of picketing the Pechanga jobsite in August 2016, bearing “Not Paying Area Standard Wages – Western Pumping” signs. At picketing onset, an Iron Workers 229 business agent sent CMC employees a text containing a No Picket Lines symbol circled by “FRIENDS DON’T LET FRIENDS CROSS.” The message encouraged the rebar crews to strike or refuse to perform Pechanga work in support of both locals’ labor dispute with WCP.

In a site visit two weeks later, the Local 229 agent presented CMC employees a “Picket Line Etiquette” flyer. Among directives for rank & file: “Labor’s first commandment: “THOU SHALL NOT CROSS THE LINE;” “ONCE A PICKET LINE IS ESTABLISHED, your Business Agents and other Union Officials are legally gagged and handcuffed from giving advice pertaining to THAT JOB. They can only tell you if the Picket Line is AUTHORIZED;” and, “A good union member knows their rights: You have the right not to work behind ANY Picket Line; You have the right to decide for yourself whether to walk off a job being picketed.”

“Picketing or activity that induces or encourages the employees of a secondary employer to stop work, where an object is to compel that employer to cease doing business with the struck or primary employer” violates the NLRA, Judge Cracraft explains. “Local 229 induced or encouraged employees of CMC, a neutral employer, to stop working with the objective of forcing CMC to cease doing business with the primary employer WCP,” she concludes.

Instead of challenging the NLRB General Counsel’s contention of unfair labor practices, Iron Workers 229 attorneys argue that NLRA Section 8, as applied to the facts in the CMC/WCP case, is contrary to First and Thirteenth Amendment, plus Religious Freedom and Restoration Act protections. Judge Cracraft rejects arguments on First Amendment protections, and finds counsel’s invoking of the Thirteenth Amendment—ratified in 1865 to abolish slavery and involuntary servitude—as lacking merit. She further rejects claims that the business agent’s communications with Local 229 members are Religious Freedom Restoration Act-protected.

The case surfaced at the sunset of the Obama administration, which business and construction groups rightly criticized for using the NLRB to advance union-friendly policies through new directives or reinterpretation of longstanding labor-management relationship rules. The no-nonsense style typifying Trump Administration agency moves thus far suggests the Board might be less likely to attract claims of bedrock U.S. Constitution protections when union attorneys attempt to defend clients testing NLRA limits.