Picketing to force an employer to recognize - or employees to select - a union is permitted under certain circumstances. As with secondary boycotts, the law here is a bit complex.
Section 8(b)(7) of the Act makes it unlawful for a labor organization or its agents "to picket or cause to be picketed, or threaten to picket or cause to be picketed, any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees, or forcing or requiring the employees of an employer to accept or select such labor organization as their collective-bargaining representative, unless such labor organization is currently certified as the representative of such employees: (A) where the employer has lawfully recognized any other labor organization and a question concerning representation may not appropriately be raised under Section 9(c); (B) where within the preceding 12 months a valid election under Section 9(c) has been conducted; or (C) where such picketing has been conducted without a petition under Section 9(c) being filed within a reasonable period of time not to exceed 30 days from the commencement of such picketing: provided that when such a petition has been filed the Board shall forthwith, without regard to the provisions of Section 9(c)(1) or the absence of a showing of a substantial interest on the part of the labor organization, direct an election in such unit as the Board finds to be appropriate and shall certify the results thereof: provided further that nothing in this subparagraph (C) shall be construed to prohibit any picketing or other publicity for the purpose of truthfully advising the public (including consumers) that an employer does not employ members of, or have a contract with, a labor organization, unless an effect of such picketing is to induce any individual employed by any other person in the course of his employment, not to pick up, deliver or transport any goods or not to perform any services. Nothing in this paragraph (7) shall be construed to permit any act which would otherwise be an unfair labor practice under this Section 8(b)."
- Section 8(b)(7) prohibits picketing - and threatening to engage in picketing - that has a "recognitional" or "organizational" object, under the circumstances set forth in subsections (A), (B), or (C), subject to the provisos to subsection (C). (For shorthand purposes, we will refer to all picketing subject to Section 8(b)(7) as "recognitional.")
- "Picketing" includes what that word typically calls to mind: persons patrolling at the entrance to a targeted business, carrying signs affixed to sticks. But it is not limited to such conduct. See "secondary boycotts," for more information.
- Mere handbilling, without more, is not "picketing". However, handbilling may constitute "picketing" under certain circumstances.
- Picketing is recognitional for Section 8(b)(7) purposes if an object of the picketing is recognitional, even if it has one or more other objectives. By the same token, picketing that is exempt from Section 8(b)(7) under the second, "informational picketing" proviso to Section 8(b)(7)(C) remains exempt even if such picketing also has a recognitional object.
- Whether an object of challenged picketing is recognitional is determined from the union's overall conduct. The message on the picket signs is relevant to that determination, but not conclusive.
- Area-standards picketing - to protest the targeted employer's payment of wages below the level set by union contracts in the area - is not recognitional. It is also not "informational" picketing, which enjoys a qualified exemption from Section 8(b)(7)(C) under its second proviso. (For more on the second proviso to Section 8(b)(7)(C), see below.) That means that area-standards picketing remains lawful for Section 8(b)(7) purposes even if has an effect (quoting from the second proviso) of "induc[ing] any individual employed by any other person in the course of his employment, not to pick up, deliver or transport any goods or not to perform any services". If area-standards picketing is found to have a recognitional object, however, the prohibitions of Section 8(b)(7) apply.
- Under Section 8(b)(7)(A), recognitional picketing is unlawful where the employer has lawfully recognized another union, and a question concerning representation (QCR) may not appropriately be raised. A union may defend a Section 8(b)(7)(A) allegation on the ground that the incumbent union was not lawfully recognized. To do so, it must also timely file a Section 8(a)(2) charge. A union may also defend a Section 8(b)(7)(A) allegation by showing that a QCR may be appropriately raised because the contract between the employer and incumbent union would not bar a rival petition - for example, because that contract is a Section 8(f) "prehire" agreement, or because it lacks bar quality under the Board's contract-bar rules.
- Section 8(b)(7)(B)'s prohibition of recognitional picketing within 12 months of a valid election is largely self-explanatory, but a few issues may be highlighted. (1) Ignorance of the fact that an election has been held in the past 12 months is not a defense if reasonable diligence would have uncovered that fact. (2) Since the prohibition applies only where a valid election has been held in the past 12 months, one defense to a Section 8(b)(7)(B) allegation is that the election never should have been directed or was invalid on some other grounds. The circumstances under which this defense may be maintained are limited, however, by the rule that challenges to election validity that could have been raised in the representation case may not be litigated in a subsequent unfair labor practice case. (3) For purposes of deciding whether a union has engaged in recognitional picketing "within 12 months" of a valid election, the calendar runs from the date the Board issued a certification of representative or results.
- Section 8(b)(7)(C) limits recognitional picketing to a reasonable period of time not to exceed 30 days, unless an election petition is filed before that period expires. Thirty days is the outside limit; fewer than 30 days may be found to be unreasonable. For example, intermittent picketing over the course of a year for periods of fewer than 30 days each was found to be of unreasonable duration. Recognitional picketing by a union that cannot be certified because it admits both guards and nonguards to membership violates Section 8(b)(7)(C) without regard to its duration.
- The expedited election procedure set forth in the first proviso to Section 8(b)(7)(C) is set in motion where a representation petition is filed and the targeted employer files an 8(b)(7)(C) charge. Absent a charge, a petition filed during recognitional picketing will be processed in accordance with normal representation procedures. Thus, a union can neither obtain an expedited election nor be rushed into one against its will by its own sole act of filing a petition during recognitional picketing.
- To come within the second proviso to Section 8(b)(7)(C), picketing must appeal to the public and truthfully convey the stated "no members" and/or "no contract" message. It must also not have the proscribed effect of "induc[ing] any individual employed by any other person in the course of his employment, not to pick up, deliver or transport any goods or not to perform any services." In determining whether it does, the Board does not apply the proviso literally to find a violation based on isolated refusals to make deliveries or perform services. Rather, the protection of the proviso is lost only where an actual impact on the picketed business is shown.