Unfair Labor Practice Charges

Unfair Labor Practice Charges

The NLRA prohibits certain acts, called “unfair labor practices,” by employers and by labor organizations. The NLRA requires that the Board investigate charges and, where it finds a violation of the law, devise a remedy to redress the effects of the unlawful act. The NLRA is not a punitive statute, and does not provide for punishment of wrongdoers. However, the Board’s remedial orders are enforceable in federal courts of appeals, and a violation of a court decree enforcing a Board order may be punished by the court through a civil contempt proceeding.

When An Employer Is Not Protected From Secondary Strikes and Boycotts: The prohibitions of Section 8(b)(4)(B) do not protect a secondary employer from the incidental effects of union action taken directly against the primary employer. It is lawful for a union to urge employees of a secondary supplier at the primary employer’s plant not to cross a picket line there. Section 8(b)(4)(B) also does not prohibit union action to prevent an employer from contracting out work customarily performed by its employees, even though an incidental effect of such conduct might be to compel that employer to cease doing business with the subcontractor.

To be protected against union action, the secondary employer must maintain a neutral position with respect to the dispute between the union and the primary employer. For secondary boycott purposes, an employer considered an “ally” of the primary employer is not protected from union action in certain situations. One is based on the ownership and operational relationship between the primary and secondary employers. A number of factors are considered:

Do the same person or people own and control the primary and secondary employers?
Do they engage in “closely integrated operations”?

If an employer, despite claiming neutrality in the dispute, acts in a way that indicates that it abandoned its “neutral” position, it opens itself up to primary action by the union. If an employer claims to be neutral, but enters into an arrangement with a struck employer in which the employer accepts and performs farmed-out work that the strikers normally would perform but cannot perform because the plant is closed by a strike, that employer becomes an ally.

Publicity Allowed by Section 8(b)(4): Section 8(b)(4) provides that nothing in the section should be construed “to prohibit publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and members of a labor organization, that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer.” But such publicity is not protected if it has “an effect of inducing any individual employed by any people other than the primary employer” to refuse to handle any goods or not perform services.

The Supreme Court ruled that this provision permitted a union to distribute handbills at the stores of neutral food chains asking the public not to buy certain items distributed by a wholesaler with whom the union had a primary dispute. In addition, the Court also held that Section 8(b)(4) does not prohibit peaceful picketing at the stores of a neutral food chain to persuade customers not to buy the products of a struck employer when they traded in these stores.

However, where a product is the subject of picketing and is so integrated with the neutral entity as to constitute a secondary boycott, the union picketing has been deemed unlawful. For example, when a union picketed restaurants to further its primary dispute with the breadmaker. The restaurants being picketed served the bread in question, and used the bread in virtually all their menu items (sandwiches, toast, bread crumbs, etc.). The NLRB determined that the bread had lost its identity and patrons of the restaurant could not refuse to buy the brand of bread without refusing to purchase the meals.

The board ruled, “The customer in the restaurant either takes the meal as offered, or goes elsewhere for a meal. Thus, it appears that the bread, like any other foodstuff purchased by a restaurant, loses its identity when served, and becomes a part of the restaurant’s product which is offered to its customers. In these circumstances, the picketing in reality was an effort by [the picketers] to induce customers not to eat in these restaurants in order to force the restaurants to cease buying the Employer’s bread.”

When a Union May Picket an Employer Who Shares a Site With Another Employer: When employees of a primary employer and those of a secondary employer work on the same premises, this creates a special situation and the usual rules do not apply. A typical example of the shared site, or “common situs,” situation occurs when a subcontractor with whom a union has a dispute engages at work on a construction site alongside other subcontractors with whom the union has no dispute. Picketing at a common situs is permissible if directed solely against the primary employer, but prohibited if directed against secondary employers regularly engaged at that site.

The NLRB and the courts suggest various guidelines for evaluating the object of the picketing to assist in determining whether picketing at a common situs is restricted to the primary employer or directed at a secondary employer. Subject to the qualifications noted below, the picketing would appear to be targeted at the primary employer if the picketing is:

Limited to times when the employees of the primary employer work on the premises
Limited to times when the primary employer carries on its normal business there
Confined to places reasonably close to where employees of the primary employer work
Conducted so that the picket signs, the banners and the conduct of the pickets indicate clearly that the dispute is with the primary employer, not the secondary employer

These guidelines, known as the “Moore Dry Dock standards,” stem from the case in which they were first formulated by the NLRB. However, the NLRB has ruled that picketing at a common situs may be unlawful, despite compliance with the Moore Dry Dock standards, if a union’s statements or actions otherwise indicate that the picketing has an unlawful objective.

Reserved Gate for Picketed Contractors: In some situations, an employer may set aside or reserve a certain plant gate or entrance to its premises for the exclusive use of a contractor. By doing so, an employer may lawfully confine the union’s picketing by designating separate entrances or gates. One gate may be used by the employer and its employees. The second gate is reserved for parties neutral to the dispute. Reserved gates are most commonly seen at construction sites, where the construction company is a neutral party contracting with the union’s primary target.

If a union has a labor dispute with the company and pickets the company’s premises, including the reserved gate, the union may be held to have violated Section 8(b)(4)(B). The U.S. Supreme Court has held that a violation may be found where a separate gate is marked and set apart from other gates; the work done by those who use the gate is unrelated to the normal operations of the employer, and the work is of a kind that would not, if performed when the plant were engaged in its regular operations, necessitate curtailing those operations. However, if the reserved gate is used by employees of both the company and the contractor, the picketing would be considered primary and not a violation of Section 8(b)(4)(B).

Striking or Picketing a Health Care Institution Without Notice: Section 8(g) of the Act prohibits a labor organization from engaging in a strike, picketing or other concerted refusal to work at any health care institution without first giving at least 10 days’ notice in writing to the institution and the Federal Mediation and Conciliation Service.

Excessive or Discriminatory Membership Fees: Section 8(b)(5) of the Act makes it illegal for a union to charge employees covered by an authorized union-security agreement a membership fee “in an amount which the Board finds excessive or discriminatory under all the circumstances.”

Examples of Section 8(b)(5) violations include:

Charging existing employees who do not join the union until after a union-security agreement goes into effect an initiation fee of $15 while charging new employees only $5
Increasing the initiation fee from $75 to $250, thus charging new members an amount equal to about four weeks’ wages when other unions in the area charge a fee equal to about one-half the employee’s first week’s pay
Organizational and Recognitional Picketing by Noncertified Unions

Section 8(b)(7) prohibits a labor organization not currently certified as the employees’ representative from picketing or threatening to picket with an object of obtaining recognition by the employer or acceptance by its employees as their representative. “Recognitional” picketing refers to picketing to obtain an employer’s initial recognition of the union as bargaining representative of its employees or to force the employer, without formal recognition of the union, to maintain a specific and detailed set of working conditions.

Three specific instances prohibit recognitional and organizational picketing:

When the employer lawfully recognized another union, and a representation election would be barred by either the NLRA’s provisions or the Board’s rules
When a valid NLRB representation election was held within the previous 12 months
When a representation petition is not filed “within a reasonable period of time, not to exceed thirty days, from the commencement of such picketing”

Examples of Section 8(b)(7) violations include:

Picketing by a union for organizational purposes shortly after the employer entered a lawful contract with another union
Picketing by a union for organizational purposes within 12 months after a valid NLRB election in which a majority of the employees in the unit voted to have no union
Picketing by a union for recognition continuing for more than 30 days without the filing of a representation petition wherein the picketing stops all deliveries by employees of another employer

If a Section 8(b)(7)(C) charge is filed against the picketing union and a representation petition is filed within 30 days after the picketing starts, an expedited election must be held. This election requires neither a hearing nor a showing of interest among the employees. As a consequence, the election can be held and the results obtained faster than in a regular election. Petitions filed more than 30 days after picketing begins are processed under normal election procedures, and the election will not be expedited. The reasonable period in which to file a petition may be shorter than 30 days when, for instance, picketing is accompanied by violence.

Picketing for “area standards” is an exception to the general Section 8(b)(7) prohibition. “Area standards picketing” refers to picketing that seeks to prevent the employer from undermining area standards of working conditions by operating at less than the labor costs that prevail under bargaining contracts in the area.

In addition, picketing “for the purpose of truthfully advising the public (including consumers)” that an employer does not employ union members or have a contract with a labor organization is also permitted. However, such picketing becomes unlawful if it has a substantial effect on the employer’s business because it induces “any individual employed by any other person” to refuse to pick up or deliver goods or to perform other services.