Business Law Chapter 16 The Picketing Was Secondary Activity But Not

Chapter 16

PICKETING AND STRIKES

INTRODUCTION

Chapter sixteen focuses on the limitations placed on the use of pressure tactics during collective

bargaining. When collective bargaining fails to produce an agreement in a labor dispute, either party may

resort to pressure tactics to try to force the other side to settle the dispute. Union pressure involves strikes

CHAPTER OUTLINE

Pressure Tactics

*Pressure tactics: Union pressure tactics involve strikes and calls for boycotts, while employers may resort

to lockouts.

*Strike: The organized withholding of labor by workers—the traditional weapon by which workers attempt

to pressure employers.

Strikes in the Health-Care Industry

Unions must give written notice of any strike, picketing or any other refusal to work against

any health-care institution at least ten days prior to the beginning of the strike or picketing.

Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 16

There is a constitutional right to picket because it falls under the protections of the First

Amendment.

CASE 16.1 BRADY V. NATIONAL FOOTBALL LEAGUE

644 F.3d 661 (8th Cir. 2011)

Facts: The National Football League [NFL] recognized the NFL Players Association [NFLPA] as the

exclusive bargaining representative of all NFL players in 1968. Since then, the relationship between the

League and its players has been punctuated by both collective bargaining agreements and antitrust

lawsuits. The collective bargaining agreement [CBA] entered into by the NFL and NFLPA in 2006 was

scheduled to continue through the end of the 2012-2013 season; the CBA also allowed either party to opt

out of the final two years of it upon giving the other party written notice. In May 2008, the NFL gave the

NFLPA written notice that it would opt out of the final two years of the CBA because of concerns about

operating costs and other elements of the agreements. As a result, the CBA was scheduled to expire in

Issue: Does the Norris-LaGuardia Act apply to a suit seeking an injunction under the antitrust laws when

no union is involved?

A number of states have passed legislation similar to the act that restricts the issuance of

labor injunctions by their courts. (p.490)

The National Labor Relations Act

State Regulation of Picketing

Thornhill v. Alabama prohibits the states from banning all picketing, including peaceful

picketing.

Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 16

CASE 16.2 HUDGENS V. NLRB

424 U.S. 507 (1976)

Background: Petitioner is the owner of the shopping center. Because of a labor dispute, a tenant of the

shopping center had its warehouse employees picket the retail location. Some of the strikers entered the

shopping center with signs and were told by management that they could not picket within the mall or in

Issue: Are the respective rights and liabilities of the parties to be decided under the criteria of the

National Labor Relations Act, under a First Amendment Standard, or under some combination of the

two?

ANSWERS TO CASE QUESTIONS

1. The union has a contract dispute with the employer. The union is picketing at the retail location.

The owner of the mall where the employer is a tenant seeks to prevent the union from picketing

there. The union is picketing there because picketing at the shipping terminal is not as visible.

Picketing Under the NLRA

Section 8(b)(7): Recognitional and Organized Picketing

Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 16

Section 8(b)(7) regulates picketing by unions for organizational or recognitional purposes

It is an unfair practice for a labor organization 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:

CASE 16.3 SMITLEY V. NLRB

327 F.2d 351 (U.S. Court of Appeals, 9th Cir. 1964)

Background: The union picketed the cafeteria for more than thirty days before filing a representation

petition.

Issue: Has the picketing met the criteria necessary?

ANSWERS TO CASE QUESTIONS

1. The union was picketing to gain recognition and had been doing so for more than 30 days.

Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 16

Section 8(b)(4): Secondary Boycotts

Ambulatory situs picketing: Union picketing that follows the primary employer’s mobile business.

CASE 16.4 SAILORS’ UNION OF THE PACIFIC AND MOORE DRY DOCK CO.

92 NLRB 547 (NLRB, 1950)

Facts: A shipping company contracted with a gypsum company to ship gypsum from Mexico. The

shipping company replaced the gypsum company’s crew with a foreign one. The union wanted to picket

at the docks but was denied. The union then picketed at the entrances. The signs indicated that the

disagreement was with the ship and not the dock company. The dock company filed against the union

alleging that they were in violation.

Issue: Does picketing directed against the primary employer, but taking place at a secondary location,

violate Section 8(b)(4)(B)?

Reserved Gate Picketing: Secondary Employees at the Primary Site

CASE 16.5 LOCAL 761, INTERNATIONAL UNION OF ELECTRICAL RADIO &

MACHINEWORKERS [GENERAL ELECTRIC] V. NLRB

366 U.S. 667 (1961)

Background: The GE factory has five “gates” used to enter the factory compound. One gate was

specifically reserved for employees of contractors, and GE employees were not allowed to use that gate.

The union representing the GE employees went on strike and placed pickets at all five gates. Because of

the pickets, almost all of the contractor employees refused to enter the company premises. GE filed a

complaint with the NLRB alleging that the union violated the act by picketing at the gate where only

contractors were allowed to enter. The ALJ dismissed the complaint reasoning that the picketing at that

particular gate was primary in nature. The Board reversed and held that because the gate was exclusively

reserved for independent contractors the union’s picketing was with intent to encourage those contractors

to cease doing business with the company, in violation of the act. The appellate court affirmed the

Board’s decision and the Union appealed.

Issue: Does the union picketing at the gate used only by the employees of the contractors violate Section

8(b)(4)(ii)(B)?

Decision: It depends on whether the contractors performed work necessary to the normal operations of

Common situs picketing: Union picketing of an entire construction site.

CASE 16.6 INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 150,

AFL-CIO V. NLRB

47 F.3d 218 (7th Cir. 1995)

Background: A union of operating engineers seeks review of a NLRB decision that they violated the

secondary boycott provisions of the act. The board found that the union picketed neutral gates at a multi–

employer workplace in an effort to force uninvolved employers to pressure the employer into settling the

dispute more quickly. On the grounds of a steel plant there are two companies that serve as

subcontractors. The strike involved was against one of those subcontractors. There are three entrances to

the plant compound. The ALJ found that one of the entrances is used only in strike situations. The

strikers posted signs at all three gates. It was undisputed that no written notice was given to the union

about the gate arrangement.

Issue: Is there substantial evidence in the records that supports the Board’s finding that the Union’s

picketing ran afoul of the NLRA’s secondary boycott provisions?

Decision: The Board’s decision was affirmed because the union violated act by “intentionally enmeshing

ANSWERS TO CASE QUESTIONS

1. No, they were never formally notified but the court determined that they knew about it because

2. The third prong of Moore Dry Dock is relevant because it ensures that unions are not targeting

uninvolved parties in the dispute and that their pressure tactics are aimed solely at the struck

3. The significance of the union’s efforts was evidence of the union’s intent to engage in secondary

Ally Doctrine: Not all union picketing directed against employers other than the primary

employer is prohibited. The secondary boycott prohibitions were intended to protect neutral

employers from union pressure.

CASE 16.7 NLRB V. BUSINESS MACHINE & OFFICE APPLIANCE MECHANICS

CONFERENCE BOARD, IUE, LOCAL 459 [ROYAL TYPEWRITER CO.]

228 F.2d 553 (2d Cir. 1955), cert. denied, 351 U.S. 962 (1956)

Background: The NLRB seeks enforcement of an order directing the union to stop certain picketing and

post appropriate notices with regard to their employer Royal Typewriter Co. The union picketed some of

the typewriter repair companies that performed while the union was striking. The Board found this

picketing unlawful.

Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 16

Issue: Was the picketing of the repair companies unlawful?

Decision: No. The repair companies were so allied with Royal Typewriter Co. the union’s picketing of

ANSWERS TO CASE QUESTIONS

1. The union was on strike against the employer Royal Typewriter Co. but picketed the repair shops

because they were doing the work that the union workers would have been doing.

Publicity: “Consumer” Picketing

Unions can use publicity other than picketing for the purpose of truthfully advising the

public that the secondary employer is handling the product of the primary employer.

ETHICAL DILEMMA

Consumer and Publicity Picketing

The employer will have to be careful not to violate any labor law, but it could be a very effective way of

making the public aware of the situation.

For more material on consumer and publicity picketing, the following websites may prove to be useful:

Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 16

The Publicity Proviso

CASE 16.8 EDWARD J. DEBARTOLO CORP. V. FLORIDA GULF COAST

BUILDING TRADES COUNCIL

485 U.S. 568 (1988)

Background: A group of construction unions engaged in handbilling at the entrances to a shopping mall

to protest the presence of a nonunion contractor building a department store. The mall owner filed suit

alleging unfair labor practices. The board and the court of appeals both sided with the union, but

Supreme Court reversed holding that the handbilling did not fall within the publicity exception and

remanded for a determination of whether the handbilling was in violation and if so, whether it was

protected by the First Amendment. On remand the board held that the handbilling was in violation

because it constituted coercion. The court of appeals ruled that the handbilling was protected by the First

Amendment and the case was appealed to the Supreme Court again.

Issue: Is peaceful handbilling a violation of Section (8)(b)(4), or is the handbilling protected by the First

Amendment?

Decision: There is no violation because the section does not prohibit publicity that does not involve

Section 8(b)(4)(D): Jurisdictional Disputes

Prohibits a union from picketing an employer in order to force that employer to assign work

to that union.

*Hot cargo clause: Provision in collective bargaining agreements that purports to permit employees to refuse

to handle the product of any employer involved in a labor dispute.

Remedies for Secondary Activity

Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 16

Remedies for Secondary Activity

When a complaint alleging a violation of Section 8(b)(4), Section 8(b)(7), or Section 8(e) is filed, the

NLRB is required to seek an immediate injunction against the picketing.

National Emergencies

Taft-Hartley Act of 1947 added Sections 206 to 210 of the NLRA which provide for injunctions

forestalling strikes when they threaten national health or safety.

FMCS Statement on Tentative West Coast Ports Agreement Between the ILWU and the PMA

In February 2015, Federal Mediation and Conciliation Service Acting Director Allison Beck issued a

ANSWERS TO END OF CHAPTER PROBLEMS

QUESTIONS

1. States can regulate picketing that conflict with a valid state interest; such interests are to prevent:

violence, mass picketing, conspiracy to violate antitrust laws, fraud or libel.

2. Recognitional or organizational picketing is picketing to force an employer to recognize a union,

or to force the employees to join a union. It is prohibited by the NLRA, S. 8(b)(7), when: a)

3. Primary picketing is picketing directed at the primary employer⎯the employer with whom the

union has the dispute. Secondary picketing is picketing aimed at a neutral employer. The union’s

object in picketing determines the legality of the picketing⎯is it directed against the primary

employer or against someone other than the party with whom the union has the dispute?

Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 16

4. The ally doctrine holds that picketing directed at an employer performing the work normally done

5. A hot cargo clause is a contract provision that purports to authorize conduct that would violate S.

CASE PROBLEMS

6. Section 303 of LMRA preempted the non-profit corporation’s claims that the union engaged in an

unlawful secondary boycott in front of the corporation’s property, despite contentions that the

case was not removable to federal court because the subcontractor was absent from property and

that some of union’s conduct-including violent behavior.

The temporary restraining order issued by the state court, prohibiting the union and its agents

7. The Board initially held that the union violated S. 8(b)(4)(B) even though the union’s economic

pressure had been directed at Nolan, because the Board presumed the union’s objective was

8. The boycott group was held not to be a labor organization under S. 2(5) of the NLRA. The

boycott was therefore held not to violate S. 8(b)(4) because it was not conducted by a labor

9. The handbills urged the public not to do business with Delta⎯they urged a boycott. The handbills

10. The ILA was guilty of a secondary boycott against the TTT Stevedores, forcing it to cease doing

business with Sovfracht. The union could argue that the dispute was a political dispute rather than

Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 16

11. The NLRB held that Perkins was not an ally, but that the picketing was primary⎯it occurred at

12. The union’s conduct was held not to be an unfair labor practice; the call for a boycott was

protected under the publicity proviso⎯it did not involve picketing. Caruso filed suit against the

13. The Board held that the union’s filing of a grievance over Zellers’ suspension was a violation of S.

14. The NLRB held that the union picketing and handbilling of the neutral gates were in violation of

S. 8(b)(4)⎯the union dispute was with Piggyback, the primary employer, but the activity at the

15. The NLRB rejection of the unfair labor practice charges by Rainbow means that the object of the

union picketing was lawful; but, according to the 9th Circuit Court of Appeals, it did not

HYPOTHETICAL SCENARIOS

16. Student’s answers to this question may vary. The intention of S. 8(b)(4) is to protect employers

who are not involved in a dispute with a union from being pressured by that union. If the union is

picketing at a secondary employer to force that employer to cease doing business with the

primary employer, then it is illegal. In this case, the union sent letters to the various retail store

17. The union’s picketing here is secondary. The union picketed an office building in downtown

Chicago, the site of a neutral employer. The intention of S. 8(b)(4) is to protect employers who

Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 16

18. Yes. The second proviso to S. 8(b)(4) allows the union to distribute handbills addressed to the

public, asking for the public to support the union in its strike by refusing to buy the primary

product or by refraining from shopping at the secondary employer. In the case of NLRB v. Fruit

19. Union conduct violates S. 8(b)(4) of the NLRA “if any object of that activity is to exert improper

influence on secondary or neutral parties…” Whether the union was motivated by a secondary

objective is a question of fact, and is to be determined by looking at the totality of the

20. Yes. Recognitional or organizational picketing is okay if it is addressed to the public, truthful and

if it does not induce other unions to stop deliveries or services under S. 8(b)(7)(C). S. 8(b)(7)(C)