In 2014, Ogletree, Deakins, Nash, Smoak & Stewart, P.C. submitted an amicus brief on behalf of the Associated General Contractors of America and the Council on Labor Law Equality in Desert Sun Enterprises Limited, NLRB Case No. 28-CC-115255. Desert Sun addressed the notice that a union must provide to neutral employers when the union intends to picket a primary employer operating at a common situs. For over 50 years, the Board held that the union must provide any neutral employers with assurances that the picketing would conform to the NLRB’s Moore Dry Dock standards. In Desert Sun, the Union (IBEW Local 357) threatened to engage in common situs picketing without assuring the neutral employer that its picketing would be lawful under the Moore Dry Dock standards. Both the General Counsel and the Union argued that the Board should overrule its decades-old rule requiring a union to provide Moore Dry Dock assurances. The amicus brief argued that the Board’s current notice requirements are consistent with the NLRA, that requiring unions to meet unambiguous notice requirements to secondary employers is consistent with the Board’s neutral enforcement of the NLRA, that important public policy interests are best protected by the Board’s current notice requirements, and that the Moore Dry Dock standards reflect the realities of industrial relations in common situs cases.
We are pleased to report that the Board has issued a ruling consistent with the Ogletree, Deakins amicus briefing. On December 27, 2018, the Board issued its decision in Desert Sun, 367 NLRB No. 61 (Dec. 27, 2018), in which the Board held that its longstanding rule remains necessary to further important policy objectives and ensure that neutral employers “remain free from entanglement in the labor disputes of others.” Several of the points made by the Board in its decision were the same points raised in the amicus brief.
This is an important decision for construction employers and owners. If you have any questions about the decision, please contact Mark Stubley, Mark.Stubley@ogletree.com