Are Employers Supposed to Protect Striking Employees?

By Fiona W. Ong & Gary L. Simpler - Shawe Rosental LLP

July 28, 2023

As most of us know, Hollywood is striking (or more specifically, the members of the writers’ and actors’ unions). Some of you may have seen media reports, like this CNN article, about the unions filing unfair labor practice (ULP) charges with the National Labor Relations Board over unsafe picketing conditions. Which may cause some of you to wonder – what is an employer’s responsibility with respect to those conditions?

Generally, employees and their union must picket on public property and not on the employer’s premises. Here, the union members are picketing on the sidewalk outside of Universal Studios. The unions are claiming that NBCUniversal has designated picketing areas that are covered with construction fencing, thereby forcing the picketers into busy streets where two picketers have been struck by cars. The unions also say that the employer failed to provide barriers to create a pedestrian walkway, despite being advised by the police department to do so.

And just to make matters worse, NBCUniversal trimmed the trees on the public sidewalk, resulting in a claimed loss of shade during this crazy hot summer. NBCUniversal says that this was a regularly-scheduled annual trimming (which they have done the prior three (3) years) to prepare for the upcoming windy season. According to Fox News, the LA City Controller has pushed back on that explanation, saying that the trees were on a public sidewalk requiring a permit for trimming, and that no permits were issued. Monetary penalties are being threatened.

Now, as management-side attorneys, this whole situation struck us as a little odd. (Disclaimer: all of our information is coming from media reports and publicly available documents – so there could be other relevant information of which we are not aware). Typically, the union, not the employer, chooses the location for picketing. So if the chosen area has construction, it would seem that the union could move to a different public area to picket. And since it’s the union who has chosen to picket, it would also seem that it should be the union who arranges for any necessary traffic barriers – as recommended by the police – to protect its own members.

Now, there are circumstances in which union members could be allowed to picket on an employer’s private property – but this is limited to when there are really no viable alternatives. And if the picketing is occurring on the employer’s property, the employer would need to ensure that the picketing can be done safely.

As to the trees, just as a purely practical observation, if you look at the before and after pictures of the trees, as displayed in the LA City Controller’s tweet, it doesn’t really look like the pre-pruned trees provided much shade at all – and with the rotation of the earth, any shade would be transient. Regardless, assuming that NBCUniversal’s explanation is legitimate (which we are quite sure will be thoroughly explored by the NLRB and, apparently, the LA City Controller), the timing of the trimming is not great. NBCUniversal has apologized and says that it is arranging for pop up tents and water.

Certainly, under the law, employers should not take any actions to make picketing more difficult for union members. On the other hand, they don’t have any obligation to make it easier or more comfortable for them either – at least legally. But here, the issue is playing out not only before the NLRB, but in the court of public opinion. And employers facing that scenario need to think very carefully about their actions.

Shady business indeed.

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