Background
Janitors employed by Preferred Building Services, Inc. and its subcontractor, Ortiz Janitorial Services, sought assistance from Service Employees International Union Local 87 over low pay, poor working conditions, and sexual harassment. In 2014, they held several informational pickets outside San Francisco buildings that they cleaned. After the protests, Ortiz threatened or reduced work for some participants, Preferred ended certain cleaning contracts and its subcontract with Ortiz, and multiple employees were fired.
The NLRB’s General Counsel alleged that Preferred and Ortiz, acting as joint employers, interfered with protected concerted activity and retaliated against employees for picketing. Following an earlier Ninth Circuit decision rejecting the Board’s finding that the picketing had an unlawful secondary object, the Board concluded on remand that the employers violated Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act. It ordered reinstatement, backpay, and compensation for other direct or foreseeable pecuniary harms. Preferred petitioned for review, and the Board sought enforcement.
The Court’s Holding
The D.C. Circuit denied Preferred’s petition and granted the Board’s cross-petition for enforcement. It held that Preferred suffered no prejudice from the administrative law judge’s exclusion of evidence concerning a later protest at Millennium Towers because the Board accepted Preferred’s evidentiary proffer as true and reasonably concluded that it did not establish an unlawful secondary object. The proffer did not show that the protest targeted a neutral third party, and the December 24 protest occurred after the unfair labor practices at issue.
The court also held that substantial evidence supported the Board’s finding that the picketing was neither recognitional nor organizational. The signs and leaflets addressed the public and employees’ workplace grievances, and there was no contemporaneous demand for union recognition, solicitation of employees to join the union, tendered contract, or condition that picketing would stop if a contract were signed. Finally, the court held that it lacked jurisdiction under Section 10(e) to consider Preferred’s statutory, constitutional, and retroactivity challenges to the Board’s Thryv remedy because Preferred had not adequately raised those objections before the Board and showed no extraordinary circumstances excusing that failure.
Key Takeaways
- An evidentiary exclusion does not warrant relief without prejudice, and there was none where the Board accepted the employer’s proffer as true but reasonably found it insufficient.
- Substantial evidence supported the finding that picketing over wages, working conditions, harassment, and retaliation lacked a prohibited recognitional or organizational object.
- A party must specifically preserve objections to an NLRB remedy before the Board; a passing reference to the remedy as “unauthorized” did not satisfy Section 10(e).
Why It Matters
The decision reinforces that informational picketing remains protected when its context and communications concern workplace grievances rather than an effort to compel union recognition or organize employees. It also illustrates that aggressive conduct at a later protest does not establish an unlawful secondary purpose without evidence that the conduct targeted a neutral party or related to the earlier adverse employment actions.
For practitioners, the opinion underscores the jurisdictional importance of presenting each statutory, constitutional, and retroactivity objection to an NLRB remedy directly to the Board, including through reconsideration when necessary.