## Facts

- Restaurant Opportunities Center of New York (ROCNY) was a worker center for New York restaurant workers that provided social advocacy, legal services, and job-support services.
- ROCNY assisted certain restaurant employees in pursuing workplace claims, including alleged employment discrimination.
- In connection with those claims, ROCNY sought to resolve disputes through proposed lawsuit settlement agreements with several restaurant employers, including Redeye Grill, Fireman Hospitality Group Café Concepts, Inc., and 65th Street Restaurant LLC d/b/a Restaurant Daniel.
- ROCNY’s settlement proposals addressed remedies and, in some instances, included forward-looking workplace terms and dispute-resolution procedures.
- With respect to Restaurant Daniel, ROCNY negotiated a proposed settlement agreement that included an arbitration clause for resolving alleged contract violations.
- When employers did not accept ROCNY’s proposals, ROCNY engaged in public pressure activity, including handbilling and picketing outside restaurants; at Restaurant Daniel, materials and signs alleged discriminatory practices.
- NLRB Region 2 submitted related charge cases to the NLRB Office of the General Counsel, Division of Advice, for guidance on whether ROCNY should be treated as a “labor organization” and whether ROCNY’s conduct violated NLRA provisions applicable to labor organizations.

## Issues

1. Whether ROCNY was a “labor organization” within the meaning of NLRA § 2(5).
2. If ROCNY were a labor organization, whether ROCNY’s picketing and related conduct to obtain lawsuit settlement agreements constituted recognitional picketing in violation of NLRA § 8(b)(7)(C).
3. If ROCNY were a labor organization, whether ROCNY’s conduct amounted to an attempt to force representation on employees without majority support in violation of NLRA § 8(b)(1)(A).
4. If ROCNY were a labor organization, whether ROCNY sought to cause employers to discriminate against employees based on ROCNY membership in violation of NLRA § 8(b)(2).

## Decision

- The Division of Advice concluded the evidence did not establish that ROCNY was a “labor organization” under NLRA § 2(5).
- The memorandum treated employee participation in ROCNY as undisputed, but found the record insufficient to show ROCNY existed, in whole or in part, for the purpose of “dealing with employers” in the § 2(5) sense.
- In the alternative, the memorandum concluded that even if ROCNY were a labor organization, ROCNY’s proffer of lawsuit settlement agreements and picketing to encourage settlement did not violate NLRA §§ 8(b)(7)(C), 8(b)(1)(A), or 8(b)(2).

## Legal Principles

- NLRA § 2(5) defines a “labor organization” as an organization in which employees participate and that exists, at least in part, for the purpose of dealing with employers concerning grievances, labor disputes, wages, hours, or other conditions of work.
- “Dealing with employers” requires more than unilateral advocacy; it generally involves a bilateral pattern or practice in which the organization makes proposals and management engages in real or apparent consideration of those proposals.
- Activity connected to advancing and settling specific legal claims (such as discrimination or wage claims), even when accompanied by settlement terms touching workplace conditions, may be treated differently from an ongoing arrangement for negotiating terms and conditions of employment.
- NLRA § 8(b)(7)(C) targets picketing with an object of forcing employer recognition of, or bargaining with, a labor organization; picketing directed at encouraging settlement of litigation, without a recognitional or bargaining objective, does not fit the prohibition.
- NLRA § 8(b)(1)(A) prohibits a labor organization from restraining or coercing employees in the exercise of § 7 rights; pressure aimed at settling employees’ legal claims is not, without more, an attempt to impose representation on employees.
- NLRA § 8(b)(2) prohibits a labor organization from causing employer discrimination to encourage or discourage union membership; proposed settlement terms must be tied to membership-based discrimination to fall within this section.

## Conclusion

In this General Counsel Division of Advice memorandum, the NLRB concluded that the record did not show ROCNY was a § 2(5) labor organization because it did not establish the sort of regular, bilateral “dealing with employers” associated with labor-organization status, and it further advised that—even assuming ROCNY were a labor organization—ROCNY’s settlement proposals and picketing aimed at resolving employees’ legal claims did not amount to unlawful recognitional picketing, coercive representational conduct, or membership-based discrimination under §§ 8(b)(7)(C), 8(b)(1)(A), or 8(b)(2).


Restaurant Opportunities Center of New York, 2006 NLRB GCM LEXIS 52 (2006)