What's the Law?
Miscellaneous things unions may freely do
There are many things a union may do, before as well as after it is recognized or certified as the bargaining representative of a unit of employees. Some of these have been mentioned already.
As a union, you may
- Accept recognition from, bargain with, and contract with an employer if an uncoerced majority of the employees you seek to represent has authorized you to represent them. (You may contract with an employer in the construction industry under Section 8(f) of the National Labor Relations Act regardless whether you enjoy majority support.)
- Ask an employer to agree to recognize you if and when you demonstrate majority status.
- Ask an employer to maintain neutrality during an organizing campaign.
- File an election (RC) petition based on evidence that you are supported by at least 30% of employees in an appropriate bargaining unit, unless a petition is barred.
- Agree with the employer to the terms of a Board-conducted representation election.
- Ask the Board to review the Regional Director's election decision, if the employer disputes your petition and the Regional Director's decision favors the employer's position.
- Campaign to win employees' support, provided you do not do anything that tends to interfere with their freedom of choice.
- Picket with an object of forcing or requiring an employer to recognize you as the representative of an appropriate unit of its employees, subject to the restrictions imposed by Section 8(b)(7)(C), unless such picketing would be unlawful under Section 8(b)(7)(A) or (B). (See "recognitional picketing")
- Engage in area-standards picketing or handbilling.
- Engage in informational picketing subject to the limitation set forth in the second proviso to Section 8(b)(7)(C).
- Have an observer at the election.
- Challenge, through your observer and for good cause, voters you believe to be ineligible.
- File with the Board objections to the employer's conduct during the run-up to the election.
- File with the Board objections to the conduct of the election itself.
- Fine or discipline a member for violating a properly adopted rule that reflects a legitimate union interest, provided that doing so does not contravene a policy of the Act and union members are free to leave the union and escape the rule.
- Expel a member for filing a decertification petition.
- Refuse to deal with an employer representative where you can show, by persuasive evidence, that the presence of that individual would create ill-will and make good-faith bargaining impossible.
- Enter into an agreement with an employer granting superseniority to union stewards for layoff and recall purposes.
- Demand that a "Burns successor" employer bargain with you. An employer is a Burns successor with a duty to bargain with you if (1) it acquires a business from a predecessor employer whose employees you represent, (2) it hires a majority of its employees from the predecessor's workforce, and (3) from the employees' perspective, day-to-day life remains largely unchanged. If the employer is a Burns successor, you are entitled to a reasonable period of time to bargain with it before your majority status may be challenged. (You may ask the successor to adopt its predecessor's labor contract, but the successor is free to reject such a request.)
- Bargain hard, provided that you seek in good faith to reach an agreement.
- Bargain concerning permissive subjects of bargaining, but not to impasse. (If you strike to force acceptance of your proposal on a permissive subject, the employer's bargaining duty is suspended.)
- Waive your right to bargain concerning particular subjects, but you may not waive employees' rights to solicit or distribute literature supporting or opposing you.
- Engage in a strike, except where doing so would be unlawful.
- Engage in picketing, except where doing so would be unlawful.
- Repudiate a bargaining relationship at the expiration of a Section 8(f) agreement.
- File charges with the Board alleging that an employer has violated or is violating the Act.
- Defend against unfair labor practice allegations in a hearing before an administrative law judge.
- Appeal the decision of an administrative law judge or Board hearing officer to the NLRB.
- Petition a federal court of appeals to review an adverse NLRB unfair labor practice decision.
- Sue in court under Section 301 of the Labor Management Relations Act for breach of a collective-bargaining agreement.
- Seek an injunction to preserve the status quo pending arbitration (in so-called "reverse Boys Markets" cases).
The Board will set aside an election if a party to the election (or, in rare cases, a third party) commits objectionable conduct that may have affected the outcome. Unfair labor practices, such as those described in the app page about coercing employees, are objectionable. In addition, conduct that is not an unfair labor practice may invalidate an election if it impermissibly interferes with employees' ability to freely choose whether to be represented by a union or which union to designate as a representative. For example, the Board may set aside an election, even if you have not engaged in any unfair labor practices, if you
- Make untruthful campaign statements using forged documents that leave employees unable to recognize election propaganda for what it is.
- Alter an official Board document to make it look like the Board favors a particular outcome.
- Engage in excessive electioneering at or near the polls.
- Engage in prolonged conversations with employees waiting in line to vote, regardless of the subject.
- Keep a list of employees who have voted.
- Make irrelevant, inflammatory, and sustained appeals to ethnic or racial prejudice.
- Make an election speech to a massed assembly of employees (such as by using a sound truck to broadcast a message to employees at their workplace) within 24 hours of the election.
- Conduct a raffle within 24 hours of the election if eligibility to participate in the raffle is tied to voting or being at the election site on election day.
- Grant employees a benefit, or promise them a significant benefit it is within your power to confer.
- Waive initiation fees for employees who join the union or sign an authorization card before the election. (You may waive initiation fees, provided the waiver is not contingent on pre-election support or a commitment to vote in your favor.)
- Photograph or videotape employees engaged in Section 7 activity, unless you have a legitimate reason to do so and have timely communicated that reason to the employees (unless it's self-evident).
"Hot Cargo" agreements (Section 8(e))
With certain exceptions, it is unlawful for a union to enter into an agreement, express or implied, with an employer whereby the employer agrees to cease or refrain from handling, using, selling, transporting, or otherwise dealing in the products of another employer.
Section 8(e) of the Act provides that "[i]t shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer, or cease doing business with any other person," subject to two provisos, discussed below.
- This prohibition, enacted in 1959, complements Section 8(b)(4), enacted 12 years earlier. Section 8(b)(4) makes it unlawful for unions to engage in certain kinds of conduct with an object of forcing or requiring an employer to cease doing business with another employer. Section 8(e) ensures that unions and employers cannot accomplish by agreement what Section 8(b)(4) outlaws unions from accomplishing by compulsion. With two exceptions, discussed below, Section 8(e) makes it unlawful for a union and employer to enter into an agreement in which the employer agrees to cease doing business with another employer. (Section 8(b)(4)(A), enacted in its present form at the same time as Section 8(e), closes a final loophole by prohibiting unions from forcing an employer to enter into an agreement to cease doing business with another employer.)
- Section 8(e) makes it unlawful to "enter into" certain kinds of agreements. For Section 8(e) purposes, an agreement is entered into when it is executed, and also every time it is reaffirmed or enforced.
- As interpreted by the Supreme Court, Section 8(e) outlaws agreements that come within the scope of its terms and have a secondary objective. If a contract clause has a primary objective of benefiting the contracting employer's own employees - such as by preserving work they customarily perform or recapturing work they used to perform - it is lawful even if it appears to be condemned by the literal terms of Section 8(e). The work in question must be "fairly claimable" by unit employees. Where the objective of an 8(e)-defective clause is not to preserve unit work but to acquire work that unit empIoyees have never performed and thus cannot fairly claim, Section 8(e) is violated.
- The enforcement of a work-preservation agreement may raise an issue under Section 8(b)(4)(B). Suppose union U and employer S have a lawful work-preservation agreement. C, a general contractor, subcontracts certain work to S, and the terms of the subcontract require S to perform the work in a way that will breach S's work-preservation agreement with U. U strikes S in protest. The Section 8(b)(4)(B) determination depends on whether C or S has the right to control the disputed work. If C controls that work, the strike has a secondary objective of pressuring C and is unlawful. If, however, S took the lead in contracting away the disputed work, it is not an unoffending employer entitled to the protection of Section 8(b)(4)(B). (S will not be found to have contracted away the disputed work merely because it did not try hard enough to preserve it.)
- "Picket-line" clauses that permit employees to refuse to cross picket lines in support of lawful primary strikes are lawful. But picket-line clauses worded so broadly as to permit employees to refuse to cross picket lines in support of secondary boycotts violate Section 8(e). Thus, for example, a clause permitting employees to refuse to cross any picket line would be unlawful.
- "Struck-work" clauses in which an employer agrees, in essence, not to become an ally of a struck employer do not violate Section 8(e). (For more on the "ally doctrine", see the 8(b)(4) section, above.) Thus, for example, a clause providing that employees will not be required to handle work "farmed out" from a struck employer, while making clear that it does not apply to work the employer has customarily performed for such employer, would be lawful.
- Outside of the construction and garment manufacturing industries, union-signatory subcontracting clauses violate Section 8(e). Union-standards subcontracting clauses do not violate Section 8(e). Thus, a clause requiring the employer to subcontract work only to employers that have collective-bargaining agreements would be unlawful. But a clause requiring the employer to subcontract work only to employers that observe union-equivalent wages, hours, and benefits would not.
- The first or "construction industry" proviso to Section 8(e) exempts from its prohibition agreements in the construction industry relating to the contracting or subcontracting of work to be done at a construction site. Under the second proviso, Section 8(e) does not apply to certain agreements in the garment manufacturing industry.
- In Woelke & Romero Framing v. NLRB, 456 U.S. 645 (1982), the Supreme Court held that the construction industry proviso "shelters union signatory subcontracting clauses that are sought or negotiated in the context of a collective bargaining relationship." Thus, a union and general contractor that have a bargaining relationship (under either Section 9(a) or 8(f)) may enter into an agreement requiring the general contractor to subcontract construction-site work to union-signatory subcontractors. In the absence of a collective-bargaining relationship, however, such an agreement is outside the shelter of the construction industry proviso.
- A union may strike or picket to obtain a union-signatory subcontracting clause lawful under Woelke & Romero. Doing so to enforce such a clause, however, is unlawful. (A union may not strike to obtain a union-signatory subcontracting clause that permits employees to strike to enforce the clause.)
- Under the second or "garment industry" proviso, Section 8(e) does not apply to certain agreements in the garment manufacturing industry. The purpose of the "garment industry" proviso is to protect agreements that prevent subcontracting "parts of an integrated process of production in the apparel and clothing industry" to sweatshops.
Recognitional picketing (Section 8(b)(7))
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.
"Featherbedding" (Section 8(b)(6))
Unions may not seek payment for services not performed.
Section 8(b)(6) of the Act makes it unlawful for a labor organization or its agents "to cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other thing of value, in the nature of an exaction, for services which are not performed or not to be performed."
- As its wording makes clear, Section 8(b)(6) outlaws causing or attempting to cause an employer to pay for services "not performed or not to be performed." It does not outlaw securing payment for make-work - i.e., for services that are unneeded or unwanted, but performed. It also does not outlaw securing "call-in", "show-up", or "reporting" pay.
Excessive or discriminatory fees (Section 8(b)(5))
It is unlawful for a union to require employees covered by a union-security agreement to pay excessive or discriminatory initiation fees.
Section 8(b)(5) of the Act makes it unlawful for a labor organization or its agents "to require of employees covered by [a union-security agreement] the payment . . . of a fee in an amount which the Board finds excessive or discriminatory under all the circumstances . . . ."
Jurisdictional disputes (Section 8(b)(4)(D) & 10(k))
The National Labor Relations Act provides a means through which employees represented by different unions with competing claims to certain disputed work can ask the Board to settle their dispute and assign the work to one or the other.
Section 8(b)(4)(D) of the Act prohibits certain union conduct an object of which is to force or require "any employer to assign particular work to employees in a particular labor organization . . . rather than to employees in another labor organization" (unless the union is trying to force the employer to assign the work in conformity with a Board order or certification). Section 10(k) of the Act provides that "[w]henever it is charged that any person has engaged in an unfair labor practice within the meaning of [Section 8(b)(4)(D)], the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen, unless, within ten days after notice that such charge has been filed, the parties to such dispute submit to the Board satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute. Upon compliance by the parties to the dispute with the decision of the Board or upon such voluntary adjustment of the dispute, such charge shall be dismissed."
- The primary function of Section 8(b)(4)(D) is to set in motion the procedure the Board follows to resolve a "jurisdictional" or work-assignment dispute under Section 10(k).
- The literal language of Section 8(b)(4)(D) could be read to trigger a jurisdictional dispute whenever a union resorts to proscribed means to preserve or retrieve unit work, regardless whether the employees to whom the employer has reassigned it (or intends to do so) also claim the work. But that interpretation would deviate from the purpose of Section 10(k), which is to shield neutral employers caught between rival claimants. Thus, for a jurisdictional dispute to exist, there must be competing claims to the work.
- Section 10(k) gives the parties 10 days "after notice that [a] charge [alleging a violation of Section 8(b)(4)(D)] has been filed" to submit "satisfactory evidence" that they have adjusted the dispute or agreed upon a voluntary method to do so. Thus, whenever an 8(b)(4)(D) charge is filed, the Region promptly gives notice to the parties. If, after investigation, the Region determines that the charge has merit and that the parties have neither adjusted the dispute nor agreed upon a method to do so, it issues a notice of hearing under Section 10(k). The record developed at the hearing is forwarded to the Board along with the hearing officer's summary of the pertinent facts. Meanwhile, the underlying Section 8(b)(4)(D) charge is held in abeyance.
- Before proceeding to determine the dispute, the Board must satisfy itself that it is "empowered" to do so under Section 10(k). First, it must decide whether reasonable cause exists to believe that Section 8(b)(4)(D) has been violated. This requires determining whether there is reasonable cause to believe that there are competing claims to the work in dispute and that the charged union used proscribed means - such as a threat to picket the charging party employer if the work is reassigned - to enforce its claim. In addition, because Section 10(k) conditions the Board's power to determine the dispute on the absence of an agreed-upon method for its voluntary adjustment, the Board must satisfy itself on that score as well. If there is no reasonable cause to believe that 8(b)(4)(D) was violated, or if the parties have agreed upon a method to adjust it to which all of them (including the employer) are bound, then the Board quashes the notice of Section 10(k) hearing, and that's the end of that.
- If, however, the Board finds that it is empowered to determine the dispute, it proceeds to do so based on common sense and experience, balancing the factors pertinent to the case. Any relevant factors may enter into the determination, but those typically considered include (1) work-jurisdiction provisions in the parties' collective-bargaining agreements, (2) to whom the work is currently assigned, (3) the employer's preference and past practice, (4) practice in the industry and geographical area, (5) relative skills and training, and (6) economy and efficiency of operations.
- The Board's award of the work is typically limited to the specific work in dispute. It may issue a broader award, however, if it finds that similar jurisdictional disputes are likely to occur.
- If the parties satisfy the Region that the Board's award is being complied with, the Region dismisses the Section 8(b)(4)(D) charge. Otherwise, the Region issues a complaint, and the case proceeds as an unfair labor practice case. (Because a Section 10(k) award is interlocutory, a party obtains appellate review of such an award by refusing to comply with it and securing an appealable final order in the Section 8(b)(4)(D) case.)
Secondary boycotts (Section 8(b)(4))
The NLRA protects the right to strike or picket a primary employer - an employer with whom a union has a labor dispute. But it also seeks to keep neutral employers from being dragged into the fray. Thus, it is unlawful for a union to coerce a neutral employer to force it to cease doing business with a primary employer. That is only one aspect, however, of a complex legal picture.
Section 8(b)(4) of the Act makes it unlawful for a labor organization or its agents "(i) to engage in, or induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is (A) forcing or requiring any employer or self-employed person to join any labor or employer organization or to enter into any agreement which is prohibited by Section 8(e) of the Act; (B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of Section 9; provided that nothing contained in clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing; (C) forcing or requiring any employer to recognize or bargain with a particular labor organization as the representative of his employees if another labor organization has been certified as the representative of such employees under the provisions of Section 9; (D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work." (Section 8(b)(4) also includes two provisos, discussed below.)
- As stated, Section 8(b)(4)(A) makes it unlawful to engage in certain conduct with an object of "forcing or requiring any employer or self-employed person to join any labor or employer organization." The rest of this section refers to Section 8(e) and is explained below in connection with that statutory provision.
- Section 8(b)(4)(C) is self-explanatory and rarely violated. It will not be further discussed here.
- Section 8(b)(4)(D)'s main function is to set in motion the procedure the Board follows to resolve "jurisdictional" or work-assignment disputes under Section 10(k) of the Act. Those two sections, and the Board's jurisdictional dispute procedure, are addressed below.
- Despite the mind-numbing wording of Section 8(b)(4), its essential aim is not difficult to grasp. It prohibits certain kinds of "secondary" conduct - that is, conduct aimed at a "secondary" employer (or secondary employees) in order to exert pressure on a "primary" employer. A "primary" employer is an employer with whom you directly have a labor dispute. A "secondary" employer - also called a "neutral" - is any employer that is not a primary employer, unless it is an "ally" of a primary employer. (For more about the ally doctrine, see below.)
- The first proviso to Section 8(b)(4) preserves the protected right of employees of a secondary employer to refuse to cross a primary picket line. However, a sympathy striker will lose that protection and render himself vulnerable to discharge if (1) the primary strike is unprotected or prohibited; (2) a sympathy strike violates a contractual no-strike provision; or (3) the sympathy striker's refusal to cross the primary picket line disrupts his employer's business so significantly as to clearly outweigh the striker's right to honor a protected primary picket line.
- Section 8(b)(4)(i) concerns conduct directed at secondary employees. It prohibits you from inducing or encouraging, with an object proscribed in subsection (A), (B), (C), or (D), "any individual employed by any person" to do certain things. For example, you may not, with a proscribed object of forcing a neutral employer to cease doing business with a primary employer, induce or encourage the neutral's employees to strike. Doing so would violate Section 8(b)(4)(i)(B).
- Section 8(b)(4)(ii) concerns conduct directed at secondary (neutral) employers. It prohibits you from threatening, coercing, or restraining, with an object proscribed in subsection (A), (B), (C), or (D), "any person engaged in commerce." For example, you may not threaten, coerce, or restrain a neutral employer with a proscribed object of forcing that employer to cease doing business with a primary employer. Doing so would violate Section 8(b)(4)(ii)(B).
- Notice that all it takes to violate Section 8(b)(4)(i) (assuming the other elements are met) is inducement or encouragement, whereas Section 8(b)(4)(ii) isn't violated unless you threaten, coerce, or restrain. Thus, for example, you may encourage the manager of a neutral business not to do business with a primary employer. In that case, you are approaching the manager as a person engaged in commerce, so your conduct would be evaluated under Section 8(b)(4)(ii), and no violation would lie because you have not threatened, coerced, or restrained. However, since that manager is also "an individual employed" by that neutral, you may not induce or encourage him to refuse to work in order to pressure the neutral to cease doing business with the primary. Now, it would not matter that you did not threaten, coerce, or restrain because your conduct would be evaluated under Section 8(b)(4)(i).
- To "coerce or restrain" for purposes of Section 8(b)(4)(ii), union activity must involve more than mere persuasion. Picketing involves more than mere persuasion. "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. Picketing has been found where signs were stuck in a snow bank and people sat in nearby cars, getting out to answer questions or talk to delivery drivers. It has been found where there were no signs at all, simply a large crowd shouting appeals for action. On the other hand, demonstrations and marches have been found not to be picketing when there were no signs or patrolling.
- "Bannering" is not picketing and does not coerce or restrain for Section 8(b)(4)(ii) purposes.
- Peaceful consumer handbilling does not involve more than mere persuasion and is not coercion or restraint for Section 8(b)(4)(ii) purposes. See Edward J. DeBartelo Corp. v. Florida Gulf Coast Building Trades Council, 485 U.S. 568 (1988).
- A second proviso to Section 8(b)(4), the "publicity" proviso, may be safely ignored. The Supreme Court's above-cited DeBartelo decision exempting peaceful consumer handbilling from the scope of Section 8(b)(4)(ii)(B) effectively made that proviso superfluous.
- Handbilling may come within the prohibition of Section 8(b)(4) under certain circumstances, such as where the union handbills and pickets, or where the handbills are directed not at consumers but at employees of a neutral to induce or encourage them to withhold their services.
- Notwithstanding the general prohibition against picketing a neutral, you may picket a neutral to persuade its customers not to buy a struck product. For example, suppose you have a labor dispute with a dairy. The dairy sells its products to a grocery store, which sells them to the public. You may picket the grocery store to discourage its customers from buying the struck dairy products. You may not picket to encourage a general boycott of the store. Also, you may not picket a struck product where that product accounts for all or almost all of the neutral's business, so that an appeal to the public not to buy the struck product would threaten the neutral with ruin or substantial loss.
- To be unlawful under Section 8(b)(4)(B), conduct must be undertaken with an object of "forcing or requiring any person to . . . cease doing business with any other person . . . ." Read literally, this language might suggest that so long as your aim is something less than to bring about a total cessation of business between a neutral and primary, pressure exerted on the neutral is lawful. This language is not read literally. A "cease doing business" object may be found where the aim is something less than a total cessation of business between neutral and primary. However, a union's goal in exerting pressure on a neutral may be so limited, and the likely consequences of its conduct on the neutral so slight, as to make its secondary conduct permissible.
- Section 8(b)(4)(B) makes certain conduct unlawful where an object is to force or require a neutral to "cease doing business" with a primary. "An object" means what it says. The fact that challenged secondary conduct has more than one object is no defense so long as a "cease doing business" object is one of them.
- Section 8(b)(4)(B) permits otherwise unlawful secondary activity where the union "has been certified as the representative" of the primary's employees. In other words, suppose you are the certified representative of A's employees, and A refuses to recognize and bargain with you. You may picket neutral B to force B to cease doing business with A to pressure A to recognize and bargain with you. Doing so would not violate Section 8(b)(4)(ii)(B).
- Picketing at the site of the primary employer may impact secondary employers, but that doesn't make it into unlawful secondary activity. Suppose, for example, that you are on strike against A, whose employees you represent. Truck drivers employed by neutral B arrive at A's plant to pick up products A has sold to B. B's drivers honor the picket line, and consequently B's business is impacted. Nonetheless, the picketing remains lawful primary activity.
- So-called "common situs" cases raise the question of how a union may engage in lawful primary picketing where the primary shares a worksite with one or more neutral employers. For example, a common situs situation exists where employees of the primary are working on a secondary employer's premises, or where the primary is a trucking company whose trucks make stops at neutrals' loading docks. (The latter scenario is sometimes called an "ambulatory situs", which is a type of common situs.) The general guideline for common situs situations is to minimize the impact of picketing on neutrals without substantially impairing the effectiveness of lawful primary picketing.
- To translate this general guideline into specific guidance, the Board adopted the following standards in Moore Dry Dock, 92 NLRB 547 (1950), and they still apply today. "[P]icketing of the premises of a secondary employer is primary," the Board said, "if it meets the following conditions: (a) The picketing is strictly limited to times when the situs of the dispute is located on the secondary employer's premises; (b) at the time of the picketing the primary employer is engaged in its normal business at the situs; (c) the picketing is limited to places reasonably close to the location of the situs; and (d) the picketing discloses clearly that the dispute is with the primary employer."
- Common-situs picketing that complies with Moore Dry Dock standards is presumed lawful, and common-situs picketing that does not is presumed unlawful. In both situations, the presumption is rebuttable.
- When a primary is engaged in operations on a secondary employer's worksite, the secondary typically reserves a separate gate for the primary's employees and suppliers. Where that has been properly done and the reserved gate system is honored, picketing must be confined to the gate reserved for the primary. Picketing at neutral gates falls afoul of the Moore Dry Dock requirement that picketing at a common situs be limited to places reasonably close to the site of the dispute with the primary.
- What about the converse scenario, where a neutral employer is engaged in operations on the premises of a struck primary, and the primary reserves a gate for the neutral's employees? Picketing at the premises of a struck primary is garden-variety primary activity. That a neutral also is present does not make this a "common situs" situation, and the Moore Dry Dock standards do not apply. Instead, the primary or secondary nature of picketing at the neutral's reserved gate is determined under the "related-work" test. Under that test, picketing at the gate reserved for neutrals remains primary unless (1) the work done by employees of the neutral is unrelated to the normal operations of the primary, and (2) the work is of a kind that would not, if done when the primary is engaged in normal business operations, require that those operations be curtailed. For example, suppose employees of a neutral are constructing a new manufacturing facility on the primary's worksite. Meanwhile, manufacturing continues as usual in the primary's existing facility. Picketing at a gate reserved for the neutral's employees would be secondary and unlawful because their work would be unrelated to normal operations in the primary's existing facility and would not require curtailing those operations. But suppose a primary has outsourced routine maintenance of its manufacturing equipment to Company M. In that case, picketing at a gate reserved for employees of M would be primary and lawful because routine maintenance of the struck primary's equipment relates to the primary's normal business operations.
- Not every employer formally distinct from a primary is necessarily a neutral. Under the "ally doctrine," an asserted neutral may be so closely related to a primary as to make primary and lawful union conduct aimed at the asserted neutral.
- An asserted neutral is an ally of a primary and unprotected by Section 8(b)(4)(B) if (1) it accepts and performs struck work that, but for the strike, the primary would not have sent to it, or (2) the asserted neutral and primary constitute a single employer.
- If you violate Section 8(b)(4), you may be sued for damages caused by your unlawful secondary activity under Section 303 of the Labor Management Relations Act.
Collective bargaining (Section 8(d) & 8(b)(3))
A union must bargain in good faith on behalf of employees it represents, and it is unlawful for a union to fail to do so. Examples of failing to do so include insisting to impasse on a nonmandatory subject of bargaining, or reaching a collective-bargaining agreement with an employer but then refusing to sign it.
Section 8(d) of the Act sets forth what is encompassed within the duty to bargain collectively. Section 8(b)(3) of the Act makes it unlawful for a labor organization or its agents to refuse to bargain collectively with an employer whose employees you represent. For example, you may not
- Fail to meet with the employer at reasonable times and reasonable intervals.
- Fail to bargain in good faith concerning mandatory subjects of bargaining.
- Engage in bad-faith, surface, or piecemeal bargaining.
- Refuse to furnish information the employer requests that is relevant to the bargaining process. However, you do not have to furnish information in the possession of a union fund unless you are in de facto control of the fund.
- Condition acceptance of an offer for one bargaining unit on identical offers being made for other units.
- Insist to impasse on a permissive subject of bargaining, or condition further bargaining on reaching agreement on a permissive subject. However, if the parties mutually agree, you may include a permissive clause in your collective-bargaining agreement. Permissive subjects include, for example, adding supervisors or agricultural workers to a bargaining unit, displaying the union label, or settling unfair labor practice charges.
- Insist to impasse on an illegal subject of bargaining, or include an illegal clause in a collective-bargaining agreement. Illegal subjects include, for example, closed-shop provisions, hiring-hall provisions granting referral preference for union members, and provisions inconsistent with your duty of fair representation.
- Refuse to sign a writing that incorporates a collective-bargaining agreement you have reached with the employer.
- Engage in a strike to pressure an employer to consent to a midterm contract modification.
- Terminate or modify a collective-bargaining agreement without serving written notice on the employer at least 60 days (90 days if collective bargaining involves employees of a healthcare institution) before the expiration date of the contract.
- Terminate or modify a collective-bargaining agreement without giving notice to federal and state mediators within 30 days (60 days if collective bargaining involves employees of a healthcare institution) of serving written notice on the employer that you are terminating or modifying the contract.
- Terminate or modify a collective-bargaining agreement without offering to meet and bargain concerning a new or modified contract.
- Give at least 30 days notice to federal and state mediators of the existence of a dispute, where you are bargaining for an initial collective-bargaining agreement.
- Change the status quo from the time a board of inquiry is appointed under Section 213 of the Act until 15 days after it issues its report. (Applies within the healthcare industry only.)
- Engage in a strike before 60 days (90 days if collective bargaining involves employees of a healthcare institution) have passed after you serve written notice on the employer that you are terminating or modifying the contract or before the expiration date of the contract, whichever is later. Failure to comply renders strikers vulnerable to discharge. (Does not apply to unfair labor practice strikes.)
- Engage in a strike if you are the initiating party of a contract modification or termination, and you fail to give notice to federal and state mediators within 30 days (60 days if collective bargaining involves employees of a healthcare institution) of serving written notice on the employer that you are terminating or modifying the contract. Failure to comply renders strikers vulnerable to discharge. (Does not apply to unfair labor practice strikes.)
- Engage in any strike, picketing, or other concerted refusal to work by employees of a healthcare institution without having furnished notice, no less than 10 days before such action, to the institution (in writing) and the Federal Mediation and Conciliation Service of that action. If you are bargaining for an initial agreement, the notice period is no less than 30 days. Failure to comply renders strikers vulnerable to discharge. (Does not apply to unfair labor practice strikes.)
Causing or attempting to cause an employer to discriminate against employees (Section 8(b)(2))
In most states, unions may bargain collectively for a contract that permits the union to cause an employer to discharge employees who fail to pay union dues. But that is an exception to the general rule that unions may not cause or attempt to cause an employer to discriminate against (or in favor of) employees on union-related grounds. For example, unions may not cause an employer to demote an employee who incurs the union's hostility, or to tie seniority to union membership.
Section 8(b)(2) of the Act makes it unlawful for a labor organization or its agents "to cause or attempt to cause an employer to discriminate against an employee in violation of Section 8(a)(3) of the Act or to discriminate against an employee with respect to whom union membership has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership." For example, you may not
- Cause an employer to discharge an employee for a reason other than his failure to pay periodic dues or initiation fees under a union-security agreement.
- Cause an employer to discharge an employee under a union-security agreement where you failed to give the employee notice and a reasonable opportunity to become current on his dues before securing his discharge.
- Cause an employer to discharge an employee under a union-security agreement if you failed to give the employee notice of his right under Communication Workers of America v. Beck, 487 U.S. 735 (1988), to be a nonmember and object to paying the portion of his dues that is not germane to your representative duties.
- Maintain a union-security agreement that does not give employees at least 30 days to become members (7 days if the union-security clause is contained in a Section 8(f) "prehire" agreement).
- Cause an employer to change an employee's wages, hours, or other terms and conditions of employment for the worse because he did something to incur your hostility, such as opposing a candidate you favor in a union election.
- Refuse to refer an individual for employment for reasons other than nonpayment of dues, unless the refusal is necessary to the performance of your representative function.
- Cause or attempt to cause an employer to take action against an employee for a reason that is arbitrary, discriminatory, or in bad faith.
- Enter into an agreement with an employer tying seniority to union membership or previous employment with a unionized business. (However, a provision granting union stewards superseniority for layoff and recall purposes is lawful.)
- Enter into a collective-bargaining agreement containing a union-security clause if you do not enjoy the uncoerced support of a majority of the employees you seek to represent. Under Section 8(f) of the Act, however, you may enter into a collective-bargaining agreement that contains a union-security clause with an employer in the building and construction industry without regard to your majority or minority status.