Labor & Employment Law Daily Wrap Up, LABOR—UNFAIR LABOR PRACTICES—D.C. Cir.: NLRB properly rejected employer’s defenses that picketing was unlawful secondary or recognitional picketing, (Aug 24, 2026)

By Ronald Miller, J.D.

Preferred contends that the Board erred by failing to allow it to present evidence before the ALJ on its defenses.

The D.C. Circuit held that the NLRB properly rejected an employer’s defenses that employee picketing constituted unlawful secondary or recognitional picketing and reasonably concluded that the workers were unlawfully terminated for engaging in protected labor activity. Janitorial employees who worked for the employer engaged in picketing to air their grievances concerning poor working conditions, low pay, and sexual harassment. In response, the employer fired certain employees for participating in union-backed protests. The appeals court held the Board did not err by preventing the employer from presenting evidence on its statutory affirmative defenses and that the employees’ picketing was not recognitional or organizational. The court also held that challenges to the Board’s remedial order were forfeited because they were not raised before the Board. Accordingly, it denied the employer’s petition for review and granted enforcement of the Board’s order (Preferred Building Services, Inc. v. NLRB, No. 24-1384 (D.C. Cir. Aug. 21, 2026)).

Janitorial services. Preferred Building Services, the employer, provides janitorial services in the San Francisco Bay area. Over a decade ago, Preferred subcontracted with Ortiz Janitorial Services to clean several commercial office buildings in San Francisco.

In 2014, several janitors who worked for Preferred and Ortiz sought help from a local union. The employees expressed concerns about poor working conditions, low pay, and sexual harassment. At the union president’s suggestion, the employees decided to picket to air their grievances.

Picketing activity. On October 29, 2014, the employees picketed in front of the main entrance of an office building. They walked in a circle on the sidewalk, carrying signs and chanting statements. The signs bore messages that identified Preferred as the target of the workers’ concerns. The signs also carried the union’s logo and stated that the activity was an informational picket line. They also stated that the picketers were NOT calling for a boycott of the building but had a labor dispute with the cleaning contractor at the building.

The picketers handed out pamphlets that identified the janitors’ employer as Preferred and explained that they cleaned the offices of a radio station in the building. The pamphlets called on the radio station to take corporate responsibility in ensuring that their janitors receive higher wages.

In the days following the picket, the founder of Ortiz Janitorial Services lashed out at the participating employees. Among other things, he demanded that two of the employees provide documentation proving that they were legally in the United States and authorized to work. He threatened another employee that she would not work anymore. And he informed another that she would no longer be able to clean certain offices.

On November 19th, the employees participated in a second picket outside the building that featured similar signs, leaflets, and chants. Later that day, Preferred terminated its cleaning services contract at that location and its subcontract with Ortiz. That evening, Ortiz fired two of the picketing employees. In mid-December, Ortiz terminated several additional employees.

On December 18th, a third picket took place, this time outside another office building. The picketers distributed a flyer with different text calling on tenants and clients to tell Preferred to listen to their demands.

Unfair labor practice charge. In April 2015, the union filed a charge with the NLRB alleging that Preferred and Ortiz had violated the NLRA. The Board’s General Counsel issued a complaint alleging that Preferred and Ortiz interfered with employees’ rights to act collectively, and discharged employees in retaliation for picketing.

Secondary object. Before an administrative law judge, Preferred and Ortiz argued that the employees’ picketing was unlawful because it (1) had an impermissible secondary object, in violation of 29 U.S.C. § 158(b)(4), and (2) was organizational or recognitional, in violation of 29 U.S.C. § 158(b)(7). The ALJ ultimately held that Preferred and Ortiz, operating as joint employers, had violated the Act by discharging the janitorial employees in retaliation for their picketing. The ALJ rejected the employers’ secondary picketing and organizational/recognitional picketing defenses.

The NLRB reversed, holding that the ALJ had erred in refusing to allow Preferred and Ortiz to submit evidence concerning their secondary-picketing defense. It concluded that the picketing had an impermissible secondary object: to convince neutral businesses to stop working with Preferred.

The Ninth Circuit, in Service Emps. Int’l Union Loc. 87 v. NLRB, 995 F.3d 1032, 1038 (9th Cir. 2021) (“Preferred I”), held that the Board’s finding of a prohibited secondary object was not supported by substantial evidence. The court held that the picketing was presumptively lawful under Moore Dry Dock. Accordingly, the court remanded to the Board.

On remand, Board affirmed the ALJ’s findings and conclusions that Preferred and Ortiz were acting as joint employers, that their affirmative defenses were meritless, and that they had violated the employees’ rights. This appeal ensued.

Appeal. Three portions of the Board’s decision were relevant to this appeal. First, Preferred contended that the Board erred by failing to allow it to present evidence before the ALJ on its defenses. Second, it argued that the Board’s holding that the employees’ picketing was not recognitional or organizational was not supported by substantial evidence. Third, Preferred objected to the Board’s Thryv remedy as unconstitutional and in excess of its statutory authority.

Submission of evidence. As an initial matter, the appeals court held that the Board did not err by preventing Preferred from presenting evidence on its statutory affirmative defenses to an ALJ, nor did the ruling prejudice Preferred.

Preferred’s claim was simply that, if given the chance, it would have presented evidence of a fourth picket, during which the union and the alleged discriminatees forcibly gained access to the lobby, struggled with security, and threw coal into the lobby and at the security team. According to Preferred, this evidence would have established secondary picketing under Service Employees International Union Local 525 (General Maintenance), 329 NLRB 638 (1999).

However, the Board assumed the truth of Preferred’s evidence and then concluded that such evidence would not alter the Ninth Circuit’s holding that no secondary picketing had occurred.

The Board explained that the facts of General Maintenance and this case are materially different. In General Maintenance, the time of the picket was outside of the janitors’ normal hours and the picketing was aimed at a neutral third party. Here, Preferred did not claim it was not present at the time of the December 24 protest and it proffered no evidence at all that “the demonstration was aimed at a neutral third party.”

Unlike in General Maintenance, where “the union directly targeted the building’s tenants and owners with its coercive activity[,]” the union here had never engaged in coercive conduct targeting any of the building’s tenants. Further, while the tenants in General Maintenance were upset about the union’s trashing of their buildings, here the tenants were upset that Preferred was not treating its employees well.

Recognitional or organizational picketing. Preferred next argued that the Board’s finding that the picketing was not recognitional or organizational was unsupported by substantial evidence.

“Substantial evidence is lacking only when, considering the record as a whole, no reasonable factfinder could have made the same finding as the agency.” Preferred failed to make that showing.

The Board thoroughly examined the totality of circumstances surrounding the picketing and did not find any recognitional or organizational object. It reasonably adopted the ALJ’s factual findings that (i) “the picket signs and leaflets were directed to the public rather than to employees[,]” (ii) “there were no requests that employees join the Union made in connection with the picketing[,]” (iii) “there was no evidence of a contemporaneous demand for recognition,” (iv) “there was no evidence * * * that a contract was tendered at the time of picketing,” and (v) “there was no evidence * * * that cessation of picketing was conditioned on signing a contract.”

The context surrounding the employees’ chants did not have an organizational object. At the first picket, the employees “mentioned wanting justice, handed out flyers in which they presented arguments for a minimum wage increase, and noted that * * * [they] were in a ‘labor dispute with the cleaning contractor at th[e] building.’” At the second picket, they distributed flyers that “mentioned ‘abusive and unsafe working conditions and sexual harassment[.]’”

Second, the Board found that an employee’s statement that “negotiations” were successful “only demonstrate[d] that the Union was involved in assisting the employees while they negotiated to have their issues addressed, not that they were negotiating for organizational purposes.” Because Preferred supplied no argument that could undermine the Board’s reasoned analysis, this challenge failed.

Remedial authority. Lastly, Preferred argued that the Board’s Thryv remedy exceeded its remedial authority under the Act and violated the Constitution. Because Preferred did not raise any of its arguments before the Board, the appeals court determined that it lacked jurisdiction to consider them. Thus, the employer’s challenges to the Board’s remedial order were forfeited because they were not raised before the Board.

Accordingly, the appeals court denied the employer’s petition for review and granted the Board’s cross-petition for enforcement.

The case is No. 24-1384.

Judge: Millett, P.

Attorneys: Tyler M. Paetkau (Paetkau Law Group) for Preferred Building Services, Inc. Joel A. Heller for NLRB. Corinne Johnson for Service Employees International Union Local 87.

Companies: Preferred Building Services, Inc.; Service Employees International Union Local 87

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