The U.S. Court of Appeals for the Third Circuit (which covers the State of New Jersey) held that an employer improperly relied upon a no-strike/no-lockout provision to suspend employees who picketed the employer’s annual shareholders meeting in Woodbridge, New Jersey.

Facts

The employees were suspended for three days based on the “no-strike/no-lockout” provision in the collective bargaining agreement (CBA), which was expressly designed to “prevent any suspension of work due to labor disputes”. The no-strike/no-lockout provision further stated that employees would be subject to discipline for “picketing” or “any other interference with the Employer’s business.” The Union filed grievances over the suspensions, but the employer refused to arbitrate.

The Union filed unfair labor practice charges with the National Labor Relations Board (NLRB). Proceedings were held before an Administrative Law Judge (ALJ), who found that the picketing was protected activity under the National Labor Relations Act (NLRA). The NLRB in Washington, D.C. upheld the ALJ’s ruling, as did the U.S. Court of Appeals for the Third Circuit.

Third Circuit’s Ruling

The Third Circuit recognized that a union can waive the right to “strike” or “picket,” as long as the waiver is “clear and unmistakable” in the CBA. Here, the no-strike/no-lockout provision in the CBA did not clearly and unmistakably waive the employees’ right to picket for any purpose. It only waived the employees’ right to picket where the picketing caused a “suspension of work”. Since the employee picketing at the shareholders meeting did not result in a suspension of work, the no-strike/no-lockout provision did not apply.

While no-strike/no-lockout provisions are common in CBAs, such provisions will not necessarily prohibit picketing in all situations. Check your provision today. Make sure the language is broad enough to preclude all picketing and striking, and to allow appropriate discipline.

Engelhard Corp. v. National Labor Relations Bd., No. 04-3034, 04-4366 (3d Cir. February 14, 2006).