Strikes, Lockout, Picketing, and Secondary Boycott
The following is a synopsis of the parameters that have been established for employer-employee activity during a strike, lockout, picketing, and secondary boycott.
The economic strike is an action taken for higher wages, shorter hours, better working conditions, health and welfare plans, etc. The employees that engage in economic strikes have only a limited right to reinstatement to their job. In the NLRB v Mackey Radio and Telegraph case in 1938 the high court ruled that the employer might not discharge an employee who engages in an economic strike. In a later decision the Supreme Court ruled that employers might permanently replace the regular employees with strikebreakers. The company did not have an obligation to fire the replacement workers when the strike ended. The employees were not guaranteed a job when the strike ceased, but they were guaranteed the right to vote for one year. Title VII of the Landrum-Griffin Act established that employees are eligible to vote for a period of one year following the commencement of a strike. This ruling was reconfirmed by Nixon’s NLRB in the Wahl Clipper decision.
. The economic strike was a traditional weapon that was utilized by labor in the past. Today the employer has learned to use the strike as a means of eliminating the union. The employer will bargain to impasse and force the union into a strike. The workers that are on strike will be replaced with strikebreakers. The employer will allow the strike to last for a period that exceeds one year. The strikebreakers are then entitled to vote in a decertification election to eliminate the union. The employer has succeeded to eliminate the union.
In 1960, the NLRB established the standards for eligibility for economic strikers to vote during the one-year period. If the economic striker meets any of the following criteria, their voting privileges are forfeited:
· The striker obtains permanent employment elsewhere
· The employer eliminates the strikers job for economic reasons
· The striker is discharged for misconduct rendering them unsuitable
The economic striker must be on strike at the time of the election in order to vote.
The Laidlaw- Fleetwood doctrine in 1968 stated that an economic striker who had been permanently replaced still had the right to reinstatement if their job were to reopen. In 1971, the NLRB modified this doctrine when it allowed United Aircraft to put a four and a half month limit on the rights of the economic striker in the new agreement. This decision placed limitations on the Laidlaw-Fleetwood doctrine and has eliminated much of its value
Unfair Labor Strike
The unfair labor strike is a work stoppage as a result of unlawful employer tactics. These strikes include union recognition, discrimination against union members, refusing to bargain and interference by the employer with the rights of the worker to organize and bargain collectively. Employees engaging in these actions have unlimited rights to reinstatement. In the Mastro Plastics Case, the Supreme Court determined that the worker had the right to reinstatement even when their contract contained a no strike clause. The court determined that the only condition that a striker can lose their job is when they resort to violence or coercive misconduct.
The jurisdictional strike is a work stoppage resulting from disputes between two unions over assignment of work. Taft-Hartley outlaws the jurisdictional strike and places an obligation on the NLRB to settle such disputes under Section 10(K). In 1984, the NLRB established an arbitration board to settle construction disputes. The board determined that the parties connected with the construction industry are better qualified to settle the disputes. In 1985, the study on jurisdictional disputes determined that 90 percent of the assignments were referred to employer preference.
The Lockout is an offensive weapon used by an employer to put pressure upon a union to accept its’ position. There are three situations that allow an employer to lock out the employees:
It is permissible as a defensive device to prevent a sudden strike that may cause economic losses.
Preserve the institution of multi-employer bargaining.
As an offensive weapon to force the union to accept the terms of a contract during negotiations.
The multiemployer associations can use the lockout if it is determined that a union is engaging in whipsaw action. They may lockout workers and replace them temporarily to preserve their bargain unit structure. The use of the lockout is strictly a matter of judicial opinion in regards to its legality. The issue has been resolved inconsistently. In the Inland Trucking case, the NLRB and federal courts determined that a company can not use a lock out to avoid a strike at its peak season, while in the Buffalo Linen, Brown Food, and American Ship Building cases, the employers’ right to lockout was expanded to include forcibly making a union accept a contract. The determinations were based on political preference. The only consistent decision that was established is that temporary replacements cannot vote in the elections held during the lockout.
The Taft-Harley Act regulates the conduct of workers participating in the picket. Section 7 of this act provides that an employee has the right to organize, form, join, or assist labor organizations to bargain, and to engage in concerted activities. It also added the clause that guarantees that employees have the right to refrain from union activities without retribution.
The board determined that picketing that forcibly blocks ingress and egress to a plant is in violation to the Taft-Hartley Act. The board in the United Furniture Workers of America case, established what constituted unlawful areas of picketing. They established that unions could not use tactics that denied employees the right to work, free from restraint and coercion. Picket violence directed against employer property constitutes illegal coercion. In 1994 in the Clear Pine Moldings Doctrine, the board determined that verbal threats could be considered forms of coercion. Mass picketing is determined on a case-by-case basis in regards to coercion. Both unions and employees are subject to penalties for coercion during picketing.
One of the most difficult jobs in labor relation’s law is the extent to which employers may ban outside organizers from private property that is owned by the company. The Babcock and Wilcox decision ruled that an employer might ban a non-employee if there are other reasonable channels available to the organizer. In the Jean Country doctrine, the NLRB balanced the rights of the employer. If the union had reasonable alternatives to communicate to the workers they were denied access to the employer’s property. In the Lechmere decision the NLRB and the federal appeals court ruled that the organizers lacked reasonable alternatives to reach the employees. They allowed the organizer’s access to the parking lot. In a 6-3 vote, the Supreme Court reversed the decision stating that section 7 of the Taft-Hartley Act refers to the rights of the only employees. They determined that union organizers were not employees of the company and therefore had no right to be on their property. The Lechmere decision does not ban all access to employer property. If an employer allows organizations such as boy scouts, little league, church groups, etc. to solicit on their property, then they must allow the union access. The Lechmere decision is an obstacle to union organizing.
The Allis-Chalmers doctrine was applied to supervisors in the Florida Power and Light v. Electrical Workers case. The U.S. Supreme Court ruled that the union had the right to fine supervisors that crossed picket lines. However, the NLRB has had difficulty applying this decision. The NLRB has determined that a supervisor cannot be fined if they perform any of the following work; managerial, a minimal amount of bargaining work connected with their managerial duties or a large amount of bargaining work if they performed the duties prior to the strike.
The Granite State Joint Board decision determined that a strikebreaker could not be fined if they resigned from the union prior to crossing of the picket line. The time limit for resignation has been debated in the courts over the last several years. In the Dalmo Victor case, the NLRB ruled that the member must resign 30 days prior to the strike. In a later decision by the Regan NLRB, during the Neufeld Porsche-Audi case, the ruling determined that unions might not place any time limitations on the members’ rights to resign. In 1985 in the Pattern Makers League case ruled on by the Supreme Court, it was determined that members can resign at any time and under any circumstances free from union fines.
Landrum Griffin makes it unlawful for unions to picket for recognition under the following three conditions:
· When an employer has lawfully recognized another union
· When a valid election has occurred in the last twelve months
· When picketing has occurred for more then thirty days and the union has not filed an election petition
Informational picketing may occur for longer then thirty days for the purpose of informing the public that the employer does not employ members of or have a contract with the labor organization that is picketing. For informational picketing to be illegal, the employer must prove that there was work stoppage and the extent of damages caused by the stoppages.
The Taft-Hartley Act determined that secondary boycotting was illegal. Secondary boycotting included the union practice of striking, picketing, or otherwise boycotting one employer in order to put pressure on another. The intent of Congress appeared clear, however the NLRB and the federal courts while applying the law opened up loopholes for the unions to continue using certain types of secondary boycotts. The Taft-Hartley Act stated that there had to be union pressure to induce the employees of the neutral employer to engage in a concerted effort to refuse to perform services. The use of the word induce and concert lead to decisions by the NLRB and the courts that allowed unions to persuade the public not to buy from a firm doing business with the primary employer.
The Landrum- Griffin changes attempted to close these loopholes. Clause (i) of Section 8 (b) (4) of this act forbids unions to strike or induce a work stoppage by any individual employed by a person for secondary boycott purposes. Clause (ii) makes it unlawful to exert pressure against the employees of a neutral employer or against employers’ themselves.
The following cases have presented loopholes for the unions in regards to secondary picketing.
In the Servette case, the U.S. Supreme Court determined that unions could appeal to managers of a neutral employer to cease doing business with the primary employer provided they have the discretion to grant the union appeal.
In the Tree Fruits case, the Supreme Court determined that Congress did not intend to outlaw all picketing at the site of the secondary employee. This decision was based on the fact that picketing does not coerce the secondary employer when the target is directed at a struck product. All that is required is that the information on the handbills be truthful. Carefully worded picket signs permit unions to ask consumers to boycott certain goods.
The Supreme Court in the Safeco decision held that the extent of damages to the secondary employer must be considered for the proper application of the Fruit Trees determination. If the product makes up a substantial proportion of the firm’s business, the courts and boards should not approve the boycott.
In 1988, the De Bartolo case expanded the lawfulness of secondary boycotting. The NLRB ruled that it was illegal to handbill against all of the stores at a mall when your dispute is with the owner. The high court reversed this decision, allowing the construction industry to keep hand billing.
Hot cargo agreements under existing law are considered to be unfair labor practice. The Hot Cargo agreement is an understanding between the employer and the union not to handle products of another employer that the union identifies as unfair. Although hot cargo agreements are illegal Congress has extended special privileges to labor unions operating in the construction and the clothing industry. These two industries are exempt from Section 8 (E) in respect to subcontracting of work related to their trades. The Supreme Courts still have not ruled on whether construction unions can use force to secure hot cargo clauses.
In the National Woodworker Case the NLRB and the Supreme Court ruled that the unions could enforce work preservation clauses in their contract. These clauses guarantee work that is historically and regularly performed by employees within the bargaining unit. These clauses do not violate the hot cargo or secondary boycotting clauses. The court did determine that the “right of control” test would be applied to these cases. If an employer has no choice in the selection of a product that must be used on the jobsite, then they would not be liable under the work preservation clause. The language of these clauses must be specific and not written in a way to accomplish objectives other then preserving work.
Although the NLRB and the Supreme Court have tested the strike, lockout, picketing and secondary boycott it is still advisable to research any actions before proceeding. The inconsistencies have shown that what is legal during one administration may not be deemed legal under a different administration. The intent of Congress was to eliminate the loopholes but the interpretations that are rendered will often have a political overture.