On March 2, 2016, the Division of Advice at the NLRB's Office of the General Counsel (Advice) released an advice memorandum dated December 27, 1990 addressing whether a pilots' union, a union that the Railway Labor Act (RLA) governs rather than an NLRA Section 2(5) labor organization, could violate Section 8(b)(4) of the NLRA by engaging in secondary picketing of an NLRA-governed employer (Air Line Pilots Asso. (Keg South of Kendall, Inc.), N.L.R.B. Gen. Counsel Advice Mem. Case No. 12-CC-1217, (Dec. 27, 1990)). By releasing an approximately 25-year old memorandum, the NLRB's General Counsel appears to be signaling the analysis it will use to evaluate the secondary activity not only by RLA-governed unions, but also of union-backed "worker centers" that tout themselves as social or civil rights organizations beyond the NLRA's ambit.

Section 2(5) of the NLRA defines "labor organization" as "any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work" (29 U.S.C. § 152(5)). Unions comprised of private sector workers, other than rail and air or agricultural workers, generally are NLRA-governed labor organizations. Labor organizations must satisfy various legal requirements under multiple statutes, including refraining from engaging in unlawfully coercive activity, including secondary picketing or boycotts.

Recently, union-backed "worker centers" have prominently coordinated picketing and strikes at fast-food enterprises and other facilities. The worker centers generally are incorporated as 501(c) non-profit corporations. If they are not held to be labor organizations, they are not bound by the restrictions and obligations that the NLRA and other federal labor laws ordinarily impose on traditional unions. The NLRB has not set a bright line rule for evaluating worker centers or their actions under the NLRA. However, in May 2015, Advice released an advice memorandum from 1978 that addressed whether a workers' group constituted a labor organization under Section 2(5) of the NLRA (see Legal Update, NLRB Releases 1978 Guidance Foretelling Analysis of its Jurisdiction over Union-Backed Worker Centers).

The 1990 memorandum concerned secondary activity by members of the Air Line Pilots Association (ALPA), a RLA-governed union. ALPA was engaged in a sympathy strike against Eastern Airlines. Two Eastern employees, who owned a restaurant near the Miami airport, continued to work for Eastern during the strike. ALPA members picketed the NLRA-governed restaurant on two occasions and attempted to turn away potential customers because it was a "scab restaurant". The regional office submitted to Advice the question of whether a union that was not a Section 2(5) labor organization could violate Section 8(b)(4) of the NLRA by engaging in secondary picketing to discourage customers from doing business with the restaurant and, indirectly, harm Eastern. Advice recommended that the unfair labor practice (ULP) charge be dismissed because the union was not covered by the NLRA.

Advice noted that:

Advice recommended dismissal of the ULP charge because:

Advice memoranda are not binding precedent on the Board but provide guidance about, among other things, the NLRB General Counsel's views on against whom it may prosecute ULP complaints.

Employers should recognize that the release of this advice memorandum many years after the underlying matter was resolved, but while worker centers (which Advice separately suggested would not be considered Section 2(5) labor organizations) increase their labor actions, signals that: