In a significant common situs picketing decision issued on June 19, 2007, Sheet Metal Workers' International Association v. NLRB, No. 06-1028 (D.C. Cir. 6/19/07), the D.C. Circuit rejected the NLRB's position on two important issues.  First, the court held that a union did not violate the secondary boycott law by failing to promise to comply with that law when the union advised a neutral property owner that it intended to picket a primary employer doing business at the neutral owner's premises. The court relied heavily on the fact that, when the union threatened to picket, the owner had not yet established a reserved gate system. 
Second, the court held that a union did not engage in the functional equivalent of "picketing" when it staged a mock funeral outside a health care facility, where the union's activity was orderly and "somber." The court characterized the union's conduct as "street theater" and rejected the NLRB's conclusion that the union was engaging in "coercive" activity within the meaning of the secondary boycott law. The court drew heavily on First Amendment case law outside the labor context and discounted the effect of quasi-picketing activities on consumers. 
While the court's decision is a victory for organized labor, the decision is very fact-specific. The union's conduct was devoid of the usual indicia of picketing, such as confrontation of persons seeking to enter the facility. If an employer can develop evidence that a protest has become coercive, the conduct may be viewed as picketing and subject to various restrictions.  Additionally, employers need to recognize that the NLRB moves slowly in deciding cases involving protests that do not involve traditional picket signs, often referring them to the Division of Advice, and this decision is not likely to accelerate that process. Thus, prompt action is warranted when a union stages an unconventional type of protest on or near an employer's premises.