FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SERVICE EMPLOYEES 

INTERNATIONAL UNION LOCAL 87,

Petitioner,

v.

NATIONAL LABOR RELATIONS 

BOARD,

Respondent,

PREFERRED BUILDING SERVICES,

INC.,

Intervenor.

No. 19-70334

NLRB No.

20-CA-149353

OPINION

On Petition for Review of an Order of the

National Labor Relations Board

Argued and Submitted September 16, 2020

San Francisco, California

Filed April 28, 2021

Before: Paul J. Watford, Michelle T. Friedland, and

Eric D. Miller, Circuit Judges.

Opinion by Judge Watford
2 SEIU LOCAL 87 V. NLRB

SUMMARY*

Labor Law

The panel granted a union’s petition for review of a 

decision of the National Labor Relations Board (“the 

Board”), which held that janitorial employees had lost the 

protection of the National Labor Relations Act (“NLRA”) 

due to unlawful picketing.

The janitorial employees cleaned an office building in 

San Francisco, California that was managed by Harvest 

Properties, Inc. Harvest hired Preferred Building Services 

to provide the janitorial services. The employees regarded 

Preferred as their principal employer. Several of the 

janitorial employees sought help from Service Employees 

International Union Local 87 in addressing their concerns 

about low wages and poor working conditions. The 

employees, joined by members of the Union, staged two 

pickets in front of the building’s main entrance. After several 

janitorial employees were discharged, the Union filed a 

charge with the Board alleging Preferred engaged in unfair 

labor practices by discharging employees in retaliation for 

their picketing and union activity.

Section 8(b)(4)(ii)(B) of the NLRA does not prohibit 

unions from engaging in primary picketing – picketing 

aimed at the primary employer, but it does prohibit 

secondary picketing – picketing aimed at a neutral third 

party with the objective to force the third party to take action 

* This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
SEIU LOCAL 87 V. NLRB 3

to give the union leverage in its dispute with the primary 

employer.

The panel held that the Board erred in concluding on this 

record that the employees’ picketing violated Section 

8(b)(4)(ii)(B) of the NLRA. Specifically, the panel held that 

while the Union may have engaged in coercive activity 

(picketing and patrolling), the Board’s finding that it 

constituted secondary, as opposed to primary, activity was 

not supported by substantial evidence. The combination of 

the picket signs and the leaflets, considered in their entirety, 

clearly disclosed that the employees’ dispute was with 

Preferred and not with any of the buildings’ tenants. 

Because the Union’s picketing activity complied with the 

criteria in Sailors’ Union of the Pacific (Moore Dry Dock 

Co.), 92 N.L.R.B. 547 (1950), a rebuttable presumption 

arose that it was primary in character. The panel held that 

the Board failed to identify substantial independent evidence 

rebutting the presumption that the employees’ picketing was 

lawful. The panel remanded to the Board for further 

proceedings.
4 SEIU LOCAL 87 V. NLRB

COUNSEL

P. Casey Pitts (argued) and Stacey M. Leyton, Altshuler 

Berzon LLP, San Francisco, California; Nicole G. Berner, 

Claire Prestel, and John M. D’Elia, Service Employees 

International Union, Washington, D.C.; for Petitioner.

Kellie Isbell (argued), Senior Attorney; Julie Brock Broido, 

Supervisory Attorney; David Habenstreit, Acting Deputy 

Associate General Counsel; Alice B. Stock, Associate 

General Counsel; Peter B. Robb, General Counsel; National 

Labor Relations Board, Washington, D.C.; for Respondent.

Charlotte Garden, Fred T. Korematsu Center for Law & 

Equality, Ronald A. Peterson Law Clinic, Seattle University 

School of Law, Seattle, Washington; Catherine L. Fisk, 

Berkeley, California; for Amici Curiae Labor Law 

Professors.

Jonathan C. Fritts, Michael E. Kenneally, and Richard J. 

Marks, Morgan Lewis Bockius LLP, Washington, D.C.; 

John C. Sullivan, Morgan Lewis Bockius LLP, Dallas, 

Texas; Daryl Joseffer and Jonathan D. Urick, U.S. Chamber 

Litigation Center Inc., Washington, D.C.; for Amici Curiae 

Chamber of Commerce of the United States of America, 

Coalition for a Democratic Workplace, Associated Builders 

and Contractors, National Retail Federation, and Retail 

Industry Leaders Association.
SEIU LOCAL 87 V. NLRB 5

OPINION

WATFORD, Circuit Judge:

With the help of a union, janitorial employees picketed 

outside the commercial office building where they worked 

to protest their low wages and poor working conditions. The 

employees were fired as a result. The National Labor 

Relations Act (NLRA), 29 U.S.C. § 151 et seq., ordinarily 

protects employees from being fired for engaging in 

concerted action to improve their wages and working 

conditions. But here, the National Labor Relations Board 

(the Board) held that the employees lost the protection of the 

NLRA because the picketing they engaged in was unlawful. 

The union that assisted the employees petitions for review of 

the Board’s decision and asks that we reverse it. For the 

reasons that follow, we grant the union’s petition.

I

The janitorial employees at the center of this dispute

cleaned an office building located at 55 Hawthorne Street in 

San Francisco, California. The manager of the building, 

Harvest Properties, Inc., hired Preferred Building Services 

(Preferred) to provide janitorial services, which included 

cleaning the offices of the building’s tenants. Preferred 

subcontracted the work to Ortiz Janitorial Services, a sole 

proprietorship owned by Rafael Ortiz (collectively, Ortiz). 

The administrative law judge (ALJ) who heard this case 

found that the employees were jointly employed by 

Preferred and Ortiz, a finding that we accept for purposes of 

this decision. As will be seen, the employees regarded 

Preferred as their principal employer, although Rafael Ortiz 

was the source of some of their workplace grievances.
6 SEIU LOCAL 87 V. NLRB

In the fall of 2014, several of the janitorial employees 

sought help from Service Employees International Union 

Local 87 (the Union) in addressing their concerns about low 

wages and poor working conditions. Their workplace 

grievances included being subjected to sexually 

inappropriate comments from Rafael Ortiz on multiple 

occasions. For example, he repeatedly suggested that 

improvements in pay and working conditions were 

contingent on his female employees’ having sex with him. 

The president of the Union suggested that the employees 

engage in a picket outside 55 Hawthorne Street to publicize 

their concerns, and the employees agreed.

On October 29, the employees staged the first of two 

pickets. Joined by members of the Union, the employees 

walked in a circle on the sidewalk in front of the building’s 

main entrance. The picketers carried signs identifying 

Preferred as the target of their protest, with messages such 

as “PREFERRED BUILDING SERVICES UNFAIR!” and 

“WE PREFER NO MORE SEXUAL HARASSMENT.” 

The picketers chanted slogans such as “Up with the union, 

down with exploitation,” and “We want justice. When? 

Now.” In addition, the picketers handed out leaflets to 

passersby, which stated in relevant part the following (the 

key language appears in italics):

Who Needs a Minimum Wage Increase?

We do.

We work for Preferred Building Services 

which cleans the offices of KGO radio. We 

get paid the San Francisco minimum wage of 

$10.74 per hour. We endure abusive and 

unsafe working conditions and sexual 

harassment. The work involves heavy lifting 
SEIU LOCAL 87 V. NLRB 7

and the risk of serious injury. A foreman 

arbitrarily cut hours from eight hours per day 

to six hours and said that any additional hours 

would need to include sexual favors. The 

company does not provide paid sick days that 

are required by San Francisco law or pay 

medical bills for injuries on the job as 

required by workers compensation.

We are calling on KGO radio to take 

corporate responsibility in ensuring that 

their janitors receive higher wages, dignity 

on the job, respect, their rights to sick pay and 

workers compensation, and full legal 

protections against sexual harassment and 

retaliation for asserting their rights.

Vote Yes on Prop J on Nov. 4 to raise the 

city minimum wage.

Join us for a picket line outside the offices of 

KGO radio.

Wednesday, October 29

10 a.m.

55 Hawthorne St, San Francisco

(Emphasis added.) In a meeting with the Union’s president 

several days after the first picket, the employees reported 

that the building’s tenants were “upset by what they had 

learned.”

The second picket took place a few weeks later, on 

November 19. The picketers again walked in a circle on the 

sidewalk in front of the building’s main entrance. They 

again carried signs, handed out leaflets, and chanted slogans. 
8 SEIU LOCAL 87 V. NLRB

The signs and slogans were substantially the same as before. 

So too were the leaflets, except that the sentence calling on 

KGO Radio to accept corporate responsibility was replaced 

with the following sentence: “We are calling on KGO radio 

and Cumulus Media as the major tenant[s] to help in getting 

Preferred Building Services to listen to our demands and not 

ignore us.”

While the picketing on November 19 was underway, 

several of the employees, the Union’s president, and a codirector of the San Francisco Living Wage Coalition met 

with Benjamin Maxon, the building manager for Harvest 

Properties. Maxon testified that, at the meeting, the Union’s 

president “told us they were going to keep showing up until 

we made changes, more specifically to the wage.” Maxon 

informed those present that Harvest was planning to 

transition away from Preferred to a unionized contractor.

That same morning, Maxon emailed Preferred’s 

executive vice president, Pete Dellanini, to ask him what 

Preferred was doing to remedy the situation. In a telephone 

conversation that followed, Maxon told Dellanini that Rafael 

Ortiz needed to be banned from 55 Hawthorne Street while 

they investigated the allegations against him. Dellanini 

disagreed with Maxon about the appropriate course of 

action. About an hour later, Dellanini sent an email to 

Maxon terminating Preferred’s cleaning contract with 

Harvest, effective 30 days hence. Preferred likewise 

terminated its subcontract with Ortiz for 55 Hawthorne 

Street, also effective 30 days hence.

On the evening of November 19, when two of the 

employees who participated in the picketing showed up for 

work, Ortiz fired them. In mid-December, when Preferred 

(and thus Ortiz) ceased providing janitorial services at 
SEIU LOCAL 87 V. NLRB 9

55 Hawthorne Street, Ortiz terminated two other employees 

who participated in the picketing.

The Union filed a charge with the Board alleging that 

Preferred and Ortiz had engaged in unfair labor practices by, 

among other things, discharging employees in retaliation for 

their picketing and union activity. After investigating the 

charge, the Board’s General Counsel filed a complaint 

alleging that Preferred and Ortiz had engaged in unfair labor 

practices in violation of § 8(a)(1) and (3) of the NLRA. See

29 U.S.C. § 158(a)(1), (3).

The ALJ conducted an extensive evidentiary hearing 

during which the discharged employees, the Union’s 

president, Maxon from Harvest Properties, Dellanini from 

Preferred, and Rafael Ortiz all testified. During the hearing, 

Preferred and Ortiz argued that the employees’ picketing on 

October 29 and November 19 violated § 8(b)(4)(ii)(B) of the 

NLRA. (That provision prohibits so-called secondary 

picketing, the specifics of which we will discuss shortly.) 

The employees’ unlawful conduct, Preferred and Ortiz 

contended, constituted an affirmative defense to the charges 

against them. The ALJ rejected that defense on the ground 

that the employees’ picketing did not violate 

§ 8(b)(4)(ii)(B). The ALJ further found that Preferred and 

Ortiz, as joint employers, had threatened and discharged the 

janitorial employees in retaliation for their picketing and 

union activity in violation of § 8(a)(1) and (3) of the NLRA. 

Among other relief, the ALJ ordered that the employees be 

reinstated with back pay.

Upon review of the ALJ’s decision, the Board reached 

the opposite conclusion. It held that the employees’ 

picketing violated § 8(b)(4)(ii)(B) and that, as a result of 

their participation in that unlawful activity, they lost the 

protection of the NLRA. The Board ordered the complaint 
10 SEIU LOCAL 87 V. NLRB

against Preferred and Ortiz dismissed in its entirety. The 

Union then filed this petition for review.

II

A

Although the parties have briefed a number of issues, the 

only one we need to address is whether the Board erred in 

concluding that the employees’ picketing violated 

§ 8(b)(4)(ii)(B). That provision prohibits various unfair 

labor practices, including what is known as “secondary 

picketing.” The language relevant to the Board’s 

determination provides:

It shall be an unfair labor practice for a labor 

organization or its agents . . . (ii) to threaten, 

coerce, or restrain any person engaged in 

commerce or in an industry affecting 

commerce, where . . . an object thereof is . . . 

(B) forcing or requiring any person . . . to 

cease doing business with any other person 

. . . . Provided, That nothing contained in this 

clause (B) shall be construed to make 

unlawful, where not otherwise unlawful, any 

primary strike or primary picketing.

29 U.S.C. § 158(b)(4)(ii)(B).

As the proviso makes clear, § 8(b)(4)(ii)(B) does not 

prohibit unions from engaging in primary picketing—that is, 

picketing “aimed at the employer with whom there is a 

primary dispute” (known in labor parlance as the primary 

employer). NLRB v. Operating Engineers, 400 U.S. 297, 

303 (1971). Unions are free to engage in peaceful picketing 

with the objective of forcing the primary employer to meet 
SEIU LOCAL 87 V. NLRB 11

the union’s demands, even when such conduct “may 

seriously affect neutral third parties.” Id.; see also National 

Woodwork Manufacturers Association v. NLRB, 386 U.S. 

612, 627 (1967). What the provision prohibits is secondary

picketing—that is, picketing aimed at a neutral third party 

with the objective of forcing that party to take action that will 

afford the union leverage in its dispute with the primary 

employer. Section 8(b)(4)(ii)(B) thus reflects “the dual 

congressional objectives of preserving the right of labor 

organizations to bring pressure to bear on offending 

employers in primary labor disputes and of shielding 

unoffending employers and others from pressures in 

controversies not their own.” NLRB v. Denver Building & 

Construction Trades Council, 341 U.S. 675, 692 (1951).

A violation of § 8(b)(4)(ii)(B) has two elements. First, a 

labor organization must engage in conduct that coerces, 

threatens, or restrains a person engaged in commerce, 

typically a neutral employer not involved in the union’s 

dispute. Second, an object of that conduct must be, as 

relevant in this case, to force or require the neutral employer 

to “cease doing business” with the primary employer. This 

second element does not require a showing that the union 

literally sought to force the neutral employer to terminate its 

business relationship with the primary employer. Operating 

Engineers, 400 U.S. at 304. The element is also satisfied 

when the union seeks to force the neutral employer “to bring 

pressure on the [primary] employer to agree to the union’s 

demands.” Id. at 303. Thus, picketing has an impermissible 

secondary object in violation of § 8(b)(4)(ii)(B)’s “cease 

doing business” element when it (1) is aimed at a neutral 

employer, and (2) seeks to force that employer either to cut 

ties with the primary employer or to pressure the primary 

employer into making changes to its labor policies. (One can 

think of the second element as itself having two subparts.)
12 SEIU LOCAL 87 V. NLRB

As to the first element, the ALJ in this case held that the 

employees’ picketing qualified as coercive conduct because 

it involved patrolling back and forth in front of the entrance 

to 55 Hawthorne Street. The Board did not disturb that 

finding. The Union and its supporting amici raise a serious 

First Amendment challenge to the ALJ’s coercion 

determination, but the Board counters that the Union waived 

this challenge by raising it below for the first time in a 

motion for reconsideration. We need not resolve either 

party’s contentions concerning the coercion element because 

we conclude that the Board’s finding as to the second 

element—that an object of the employees’ picketing was to 

coerce neutral employers Harvest Properties and KGO 

Radio to “cease doing business” with Preferred—is not 

supported by substantial evidence. See 29 U.S.C. § 160(e); 

Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951).

B

Determining whether picketing has an impermissible 

secondary object can be tricky when, in cases like this one, 

the picketing occurs at a location occupied by both the 

primary employer and one or more neutral employers. That 

was true here because the site of the picketing—

55 Hawthorne Street—was not only a location where the 

employees’ primary employer (Preferred) performed work, 

but also the location of the building’s manager (Harvest 

Properties) and the building’s tenants (such as KGO Radio). 

Picketing outside the building’s main entrance would thus 

be likely to draw the attention of both the primary and neutral 

employers.

To assist in distinguishing between permissible and 

impermissible picketing at a location shared by primary and 

neutral employers, the Board has developed a set of four 

criteria drawn from Sailors’ Union of the Pacific (Moore 
SEIU LOCAL 87 V. NLRB 13

Dry Dock Co.), 92 N.L.R.B. 547 (1950). Those criteria 

focus on whether: (1) “[t]he picketing is strictly limited to 

times when the situs of [the] dispute is located on the 

[neutral] employer’s premises”; (2) “at the time of the 

picketing the primary employer is engaged in its normal 

business at the situs”; (3) “the picketing is limited to places 

reasonably close to the location of the situs”; and (4) “the 

picketing discloses clearly that the dispute is with the 

primary employer.” Id. at 549. When each of these criteria 

is satisfied, a rebuttable presumption arises that the picketing 

constituted lawful primary activity. See Electrical Workers 

v. NLRB, 366 U.S. 667, 677 (1961).

The Board erred in its application of the Moore Dry Dock

criteria in this case. No one disputes that the first three 

criteria were satisfied, but the Board concluded that the 

fourth criterion was not. The Board predicated this 

conclusion on the thinnest of reeds. It conceded that the 

signs carried by the picketers disclosed that the employees’ 

dispute was with their primary employer, Preferred. 

However, according to the Board, that message was 

obfuscated by language in the leaflets distributed to 

passersby during the picketing on October 29. In particular, 

the Board focused on one sentence in the leaflets that read: 

“We are calling on KGO radio to take corporate 

responsibility in ensuring that their janitors receive higher 

wages, dignity on the job,” etc. (Emphasis added.) The 

Board reasoned that by using the word “their” in this 

sentence, the picketers “led the public to believe that KGO—

who was not involved in the dispute—was their employer 

and had the ability to adjust their working conditions.”

We do not think the Board’s reasoning can withstand 

scrutiny, even granting the Board the deference it is due. The 

one sentence on which the Board focused cannot be viewed 
14 SEIU LOCAL 87 V. NLRB

in isolation; it must be considered in light of the evidence as 

a whole. See United Association of Journeymen v. NLRB, 

912 F.2d 1108, 1110 (9th Cir. 1990). The most important 

evidence relating to the identity of the party with whom the 

employees had a dispute was the message displayed 

prominently on the signs the picketers were carrying: 

“PREFERRED BUILDING SERVICES UNFAIR!” The 

signs never mentioned KGO Radio or any other neutral third 

party and thus left no doubt that the employees’ dispute was 

with Preferred alone. Consequently, this case is unlike the 

typical case in which the Board finds the fourth Moore Dry 

Dock criterion to be unmet: one in which the union fails to 

identify the primary employer at all. See, e.g., Service 

Employees International Union Local 87 (Pacific 

Telephone), 279 N.L.R.B. 168, 175 (1986); Local 32B-32J, 

Service Employees International Union, 250 N.L.R.B. 240, 

244–45, 247–48 (1980).

Contrary to the Board’s conclusion, the reference to 

KGO Radio in the leaflets did not dilute the clarity of the 

message disclosed by the signs. At the outset, the leaflets 

themselves clearly described the relationship between the 

employees, Preferred, and KGO Radio: “We work for

Preferred Building Services which cleans the offices of 

KGO radio.” (Emphasis added.) The relationship described 

is one familiar to members of the general public, in which 

janitorial workers are employed by a janitorial services 

company hired to clean the offices of a multi-tenant building. 

In light of the upfront disclosure that the employees worked 

for Preferred and cleaned the offices of KGO Radio, readers 

of the leaflets would have understood the subsequent 

statement calling on KGO Radio to accept corporate 

responsibility for “their” janitors to refer to the company in 

its capacity as a tenant of the building benefitting from the 

employees’ labor, not as their employer. That understanding 
SEIU LOCAL 87 V. NLRB 15

is even more inescapable with respect to the leaflets 

distributed on November 19, which replaced the sentence the 

Board found problematic with a sentence reiterating that 

Preferred was the entity with whom the employees had a 

dispute: “We are calling on KGO radio and Cumulus Media 

as the major tenant[s] to help in getting Preferred Building 

Services to listen to our demands and not ignore us.” 

(Emphasis added.) The Board itself has previously held that 

referring to neutral parties in picketing materials is 

permissible as long as it remains clear that the dispute is with 

the primary employer. In re Pacific Northwest District 

Council of Carpenters, 339 N.L.R.B. 1027, 1029 (2003).

The combination of the picket signs and the leaflets, 

considered in their entirety, clearly disclosed that the

employees’ dispute was with Preferred and not with any of 

the building’s tenants. The Board therefore erred in finding 

that the fourth Moore Dry Dock criterion was not met and in 

failing to afford a presumption of lawfulness to the 

employees’ picketing.

C

The presumption of lawfulness afforded by the Moore 

Dry Dock criteria is a rebuttable one, and the Board held that 

even if the presumption applied, it was rebutted by 

independent evidence that the employees’ picketing had a 

prohibited secondary object—namely, to pressure Harvest 

Properties to “cease doing business” with Preferred. 

29 U.S.C. § 158(b)(4)(ii)(B).1

 In our view, the Board’s 

1 In concluding that there was independent evidence of a secondary 

object, the Board exclusively relied on evidence pertaining to Harvest. 

The Board cited no independent evidence suggesting that the employees 

had a “cease doing business” object as to KGO Radio or any other tenant 

of 55 Hawthorne Street.
16 SEIU LOCAL 87 V. NLRB

conclusion is not supported by substantial evidence. The 

record shows that, throughout “the entire course of conduct” 

at issue here, the target of the employees’ picketing was 

always Preferred, not Harvest. Local 560, International 

Brotherhood of Teamsters (County Concrete Corp.), 

360 N.L.R.B. 1067, 1068 (2014).

In Operating Engineers, the Supreme Court fleshed out 

what it means for a union to act with a prohibited secondary 

object. 400 U.S. at 303–05. In that case, the operating 

engineers’ union had a dispute with the primary employer, 

White Construction, one of three subcontractors hired by 

neutral party Burns & Roe, the general contractor. The 

union informed Burns & Roe that its members intended to 

strike unless Burns & Roe signed a contract, which would 

have been binding on all three subcontractors, acceding to 

the union’s demands. When Burns & Roe refused, the 

operating engineers employed by all three subcontractors 

walked off the job and threatened Burns & Roe and the 

subcontractors with further work stoppages. Id. at 300–01.

There was no dispute that the union had engaged in 

coercive conduct. See Brief for Respondent at 5–6, NLRB v. 

Operating Engineers, 400 U.S. 297 (1971) (Nos. 40, 42), 

1970 WL 121901, at *5–6. The only issue was whether the 

union had acted with an impermissible secondary object. As 

noted earlier, the Court held that the “cease doing business” 

element of the statute could be met by showing that the union 

sought to force the neutral employer either to terminate its 

contract with the primary employer or to pressure the 

primary employer into changing its labor policies. 400 U.S. 

at 305.

Before reaching the question of what qualifies as a 

“cease doing business” objective, however, the Court first 

analyzed whether the union had even engaged in secondary, 
SEIU LOCAL 87 V. NLRB 17

as opposed to primary, activity. Id. at 303. Distinguishing 

between the two types of conduct requires an inquiry into the 

union’s intent. If a union engages in coercive conduct 

directed at the primary employer merely hoping that neutral 

parties will be induced to take action supportive of the 

union’s cause, its conduct remains primary in character and 

is not forbidden by § 8(b)(4)(ii)(B). See Electrical Workers, 

366 U.S. at 673. The union’s conduct loses its primary 

character only when an object of that conduct is coercing one 

or more neutral parties into taking action supportive of the 

union’s cause. Determining whether the union acted with 

the requisite intent often requires “the drawing of lines more 

nice than obvious,” but it is a task the statute nonetheless 

compels. Id. at 674.

In Operating Engineers, “the normally difficult task of 

classifying union conduct” as primary versus secondary was 

“easy.” 400 U.S. at 303. The union’s coercive activity was 

“aimed directly” at neutral parties—namely, Burns & Roe 

and the two subcontractors not involved in the primary 

dispute. Id. at 303–04. The union engaged in a strike against 

these neutral parties “for the specific, overt purpose of 

forcing them to put pressure on White,” the primary 

employer. Id. at 304. Thus, the union exerted coercive 

pressure that was “unmistakably and flagrantly secondary.” 

Id.

In our case, while the Union may have engaged in 

coercive activity (picketing and patrolling), the Board’s 

finding that it constituted secondary, as opposed to primary, 

activity is not supported by substantial evidence. Because 

the Union’s picketing complied with the Moore Dry Dock

criteria, a rebuttable presumption arose that it was primary 

in character. In concluding that there was independent 

evidence of a secondary object sufficient to rebut that 
18 SEIU LOCAL 87 V. NLRB

presumption, the Board relied most heavily on statements 

made during and after the November 19 meeting that 

occurred while picketing was underway. As noted earlier, 

several of the employees, the Union’s president, and a codirector of the San Francisco Living Wage Coalition met 

with Maxon of Harvest Properties. Maxon recalled that the 

Union’s president told him at the meeting that the picketers 

would “keep showing up until we made changes” to the 

employees’ wages, which the Board interpreted as “until 

[Maxon] made changes” to the wages. (Emphasis added.)

We do not think this statement can bear the weight the 

Board placed upon it. By stating that the employees would 

“keep showing up,” the Union indicated that the employees 

would continue to engage in the same type of picketing they 

had engaged in earlier. But that picketing was directed 

solely at Preferred, not Harvest. At no point was Harvest 

ever mentioned in any of the picketers’ signs, leaflets, or 

chants, and nothing else that transpired during the picketing 

suggested that, despite their focus on Preferred, the picketers 

also sought to place coercive pressure on Harvest. The 

statement made during the meeting on November 19 did not 

reveal a new, previously hidden object of the picketing 

already underway, nor threaten future picketing that would 

be secondary in character. Even deferring, as we must, to 

the Board’s reading of the statement, Maxon’s inference that 

the picketing would stop if he helped to increase wages does 

not reveal a secondary object or even the Union’s precise 

statement. Maxon’s recollection is consistent, for example, 

with the Union’s having stated that it would continue to 

picket until wages were increased generally, without 

specifying who should make that change. Indeed, Maxon 

could not recall whether the Union had asked him to “talk to 

Preferred or talk to somebody about raising wages,” even 

though that would have been the most obvious request for 
SEIU LOCAL 87 V. NLRB 19

the Union to make if it were, in fact, trying to coerce Harvest 

into pressuring Preferred.

The Board’s decision in County Concrete illustrates the 

distinction between picketing with an impermissible 

secondary object of coercing a neutral employer and 

picketing that remains directed solely at the primary 

employer. In that case, the Board addressed two different 

conversations between union representatives and neutral 

employers, one that it found to reflect an unlawful secondary 

object, the other that it found to be lawful. In the first 

conversation, the union’s president told the neutral employer 

that if he did not switch to a supplier paying higher wages, 

the union would be “putting a picket line against you”—i.e., 

the neutral employer—and told him to reconsider “[b]efore 

you run into a problem.” 360 N.L.R.B. at 1069 (emphasis 

added). Based on those statements, the Board found that 

“the threatened picketing was specifically aimed at [the] 

neutral employer.” Id. at 1070.

In the second conversation, the union agent told the 

neutral employer that the primary employer would have to 

pay the area standard wages “or else he would picket the 

job.” Id. at 1071 (emphasis in original). The union agent 

then told the neutral employer that if he did not want the 

union to picket the primary employer at the jobsite, he 

“would have to get somebody else because [the primary 

employer] is not paying the wages.” Id. at 1072. The Board 

deemed this second conversation to be “a textbook 

illustration of a lawful, primary objective,” emphasizing that 

the union never threatened to establish a picket line against 

the neutral employer. Id. at 1071.

The Union’s statement to Maxon that the employees 

would “keep showing up” unless Maxon made changes to 

their wages is akin to the second conversation in County 
20 SEIU LOCAL 87 V. NLRB

Concrete. The Union was simply explaining “the realistic 

options that [Maxon] had available if [he] did not want the 

Union to picket [Preferred] at the jobsite.” Id. at 1072. It 

would be a different matter if the Union had told Maxon, “If 

you don’t make changes to our wages, we will keep showing 

up to picket you.” In that case, the Union’s statement would 

be akin to the first conversation in County Concrete, 

evincing an unlawful intent to coerce a neutral employer. 

The actual conversation that took place, though, contained 

no indication of such an intent.

To support its finding of an impermissible secondary 

object, the Board also relied on the Union president’s 

statement to Maxon that it seemed “inappropriate” that 

Rafael Ortiz was still working at 55 Hawthorne given the 

allegations against him. But the Union’s president made this 

statement while explaining why the employees were 

picketing. The Board has previously held that simply 

informing a neutral employer about the nature of a labor 

dispute does not establish an unlawful secondary object. See 

Carpenters District Council of Detroit & Southeastern 

Michigan, 322 N.L.R.B. 612, 612 (1996). Moreover, Maxon 

stated that the Union never asked him to ban Rafael Ortiz 

from the building, much less demand that he take such action 

on threat of picketing directed against Harvest. Instead, as 

Maxon testified, he made the decision to ban Rafael Ortiz 

from the building of his own volition.

The remaining evidence on which the Board relies does 

even less to rebut the presumption of lawfulness. The Board 

noted that, during the November 19 meeting, the employees 

were “happy” when Maxon told them that Harvest planned 

to look for a unionized contractor to replace Preferred. That 

the employees were pleased by this news does not show that 

Harvest’s decision came about as a result of unlawful 
SEIU LOCAL 87 V. NLRB 21

secondary picketing. To the contrary, Maxon testified that 

Harvest had already been planning to transition to a union 

contractor either before or around the time of the picketing, 

and the ALJ found no evidence to connect that decision to 

the picketing. “The objectives of any picketing include a 

desire to influence others” to take actions favorable to the 

employees’ cause. Electrical Workers, 366 U.S. at 673. 

That others are moved to do so, and that the employees are 

“happy” about that outcome, does not transform a lawful 

primary picket into an unlawful secondary one. See Ramey 

Construction Co. v. Local Union No. 544, 472 F.2d 1127, 

1131 (5th Cir. 1973).

The Board further noted that, after the meeting with 

Maxon, one of the employees announced to the other 

picketers, “it seems to me that the negotiations . . . were 

successful and we gained a victory,” referring to the fact that 

Rafael Ortiz had been banned from the building. Another 

employee stated, “we spoke with the building manager and 

he suspended our employer and promised there will be 

changes and respect for us.” But a union is free to speak 

with, and even to negotiate with, a neutral employer as long 

as those discussions do not take place in the shadow of 

coercive conduct directed against the neutral employer. See 

Carpenters v. NLRB, 357 U.S. 93, 99 (1958).

Finally, the Board relied on the employees’ reports that 

the building’s tenants were “upset” about the picketing as 

evidence that the employees had an impermissible secondary 

object, citing Service Employees International Union Local 

525 (General Maintenance Co.), 329 N.L.R.B. 638 (1999). 

In that case, the janitorial union had engaged in “trashing 

episodes,” which involved storming building lobbies and 

strewing trash around, in order to pressure tenants to demand 

that the building owners force the janitorial contractors to 
22 SEIU LOCAL 87 V. NLRB

resolve the dispute. Id. at 664–65. In finding that the union 

had an impermissible secondary object, the Board relied on 

a union agent’s statements in a radio broadcast that neutral 

tenants were “upset” by the trashing episodes. Id. at 680. 

The reaction of the tenants was relevant evidence there 

because the union directly targeted the buildings’ tenants and 

owners with its coercive activity. In this case, by contrast, 

the Union never engaged in coercive conduct targeting 

Harvest or any of the building’s tenants. Additionally, while 

in General Maintenance the tenants were upset about the 

union’s trashing of their buildings, here the tenants were 

“upset by what they had learned” from the demonstrations—

presumably, that Preferred was not treating its employees 

well. The evidence about the emotional reaction of the 

tenants in this case merely suggests that the Union was 

successful in gaining the sympathies of others through its 

primary picketing.

* * *

In short, the Board failed to identify substantial 

independent evidence rebutting the presumption that the 

employees’ picketing was lawful. The Union never made 

any statements or took any actions indicating that an 

objective of its picketing was to coerce Harvest into 

pressuring Preferred to meet the employees’ demands. 

Certainly, the picketing led to disruption of the business 

relationship between Harvest and Preferred. Ultimately, 

Preferred cancelled its contract with Harvest, and Harvest 

then hired a unionized contractor. But, as the Supreme Court 

has noted, “[s]ome disruption of business relationships is the 

necessary consequence of the purest form of primary 

activity.” Operating Engineers, 400 U.S. at 304.

The Board erred in concluding on this record that the 

employees’ picketing violated § 8(b)(4)(ii)(B) of the NLRA. 
SEIU LOCAL 87 V. NLRB 23

We remand to the Board for further proceedings consistent 

with this opinion.

PETITION FOR REVIEW GRANTED; CASE 

REMANDED.