Work Rights Press | No Contract, No Peace: Chapter One



n years past unions could often win better contracts by submitting reasonable proposals and making compelling arguments. With both sides seeking common ground, deals eventually emerged. This has changed. In today’s dysfunctional economic climate, straightforward bargaining frequently comes up empty. Employers come to the table with lengthy lists of takeaways and refuse to compromise. Claiming impasse at the earliest opportunity, they threaten to carry out their final offer or impose a lockout. To cope with these realities many unions are turning to militant contract campaigns. Creative and aggressive tactics can demonstrate the solidarity and resolve of union members and their willingness to act.

Mobilizing the Membership

Successful contract campaigns rely on widespread member participation. Months before negotiations begin, the union selects a contract action team. Using individual and group meetings, surveys, and house calls, the team reaches out to every worker, soliciting suggestions for bargaining demands and ideas for exerting pressure. Films, speakers, and handouts educate members about labor struggles.

Rank and filers are often asked to join the union negotiating team. The entire membership can be encouraged to attend bargaining sessions.1 Meetings, handbills, newsletters, e-mails, direct mail, and internet postings keep everyone informed.

The union can reject bargaining ground rules that limit member involvement — for example, a rule that negotiations be kept secret. Because ground rules are not “mandatory” subjects of bargaining, an employer cannot make a particular procedure a condition for taking part in negotiations.2

As bargaining proceeds, the union engages in a variety of pressure tactics such as buttons, shirts, solidarity days, rallies, and marches. Informational picketing may be conducted before and after shifts. Work-to-rule and boycott campaigns may also be instituted. Every member should be encouraged to participate.

Vigorous contract campaigns often trigger employer unfair labor practices — violations of the National Labor Relations Act (NLRA). Examples include restrictions, threats, retaliation, and surveillance. Such actions can backfire by giving the union a legal basis for calling an unfair labor practice strike (see Chapter 13). Think of a football lineman who jumps forward in the hope of drawing the other team offside.

Another union strategy to pressure the employer is to let the contract expire and stay on the job. Contract expiration cancels the no-strike clause. With the union able to walk out at any moment, a cloud of uncertainty will envelope the employer and its customers. Expiration also extinguishes the contract’s “management rights” and “zipper” clauses. This ends the employer’s ability to make unilateral changes in assignments, workloads, hours, and other day-to-day matters. Instead, it will have to give the union advance notice and bargain to impasse before taking action. If the employer carries on as before, the union will be able to file a stream of unfair-labor-practice charges — forcing the employer to delay decisions and incur legal expenses.

The employer may respond to an aggressive contract campaign by locking out the bargaining unit. This too can backfire. As explained in Chapter 15, from a union perspective a lockout has several advantages over a strike. The employer will not be able to hire permanent replacements, unemployment insurance benefits are likely to be awarded, and, in certain circumstances, workers can win back pay.

A thousand cuts

Job actions — a “thousand cuts” — are the heart of a contract cam­­paign. As one organizer put it:

The key is that you create a situation so that management, from the time they get up in the morning till the time they go to bed, they worry about what you’re doing. And if you’re doing a good job, they wake up with nightmares.

A 2009 campaign by CWA Local 1298 is a good example. The campaign featured rallies, stickers, television ads, T-shirts with messages at football games and American Idol tryouts, red shirts on Tuesdays and Thursdays, red and black balloons at work, bags of nuts with signs saying “AT&T is Offering Us Peanuts,” bubble gum with fliers reading “AT&T Proposals Blow,” and “Shake, Rattle and Roll” days where employees put pennies in empty bottles, stood at their desks, and shook the bottles.

Contract campaign activities can help lay the groundwork for a strike by training workers in active techniques, establishing communications networks, and publicizing the dispute to local media, clergy, and the community.

Buttons, stickers and shirts. Workers have a well-established legal right to express their opinions on buttons, shirts, hats, and armbands while on the job.3 Typical legends: “No contract, no peace,” “Fight for a fair contract,” “No give-backs,” “Stop union busting.” A solidarity day — everyone wearing black, red, or union T-shirts — is protected by the NLRA unless it conflicts with an enforced dress code. One NLRB case required a company to tolerate clothing resembling prison garb.4 Another approved a button reading: “Shut management down or 100,000 Teamsters will.”5

An employer can bar insignia that is obscene, provokes violence, disparages products, affects concentration, or harms relations with customers.6 Speculation is not enough: the employer must have tangible evidence that the insignia is having or will have the claimed effect.7

In some “special circumstances,” an employer can ban all forms of insignia. The NLRB has recognized this exception in direct patient care areas8 and when a consistently enforced business plan mandates a particular public image, such as a neatly uniformed delivery driver.10

Even in such circumstances, a ban on union insignia is illegal if the employer discriminates. For example, a delivery company cannot order a uniformed driver to remove a “Contract now!” button if it previously allowed political, religious, or social-cause insignia.10 Nor may an employer enforce a rule that is overly broad. For example, a hospital may not issue a rule banning insignia throughout the institution.11

Ordering an employee to remove protected union insignia is an unfair labor practice.12 Issuing discipline because an employee wears such insignia or refuses an instruction to remove it is also illegal.13

Handbills. Under NLRA rules, employees must be permitted to distribute union literature to other employees or the public in nonworking areas during nonworking time, unless the employer can demonstrate that prohibiting such activity is necessary to maintain productivity or to avoid undue disruption.14 Nonworking time includes before and after work and breaks. Nonworking areas generally include parking lots, front steps, break rooms, and cafeterias. Company policies that forbid lawful handbilling or require prior permission are unlawful.15 Union flyers can express outrage and urge employees to stand together. Manage­ment may not order employees to stop, impose penalties, or call the police.16 Nor may it film the activity or record names.17

Employees may place flyers on tables in cafeterias or break rooms and on automobile windshields in the company parking lot.18 Management may not remove the materials.

Absent special circumstances, off-duty employees must be permitted to hand out flyers to customers, clients, and the general public while on nonwork areas of the employers premises such as driveways and entrances.19 Flyers can ask patrons to tell the employer to bargain a fair contract. They can also ask patrons to take their business elsewhere.20 Management may not retaliate in any way.

Rallies. Daily or weekly mass rallies are standard fare in contract campaigns.21 Although the usual location is a public street or sidewalk, employees have a right to peacefully assemble on outside areas of the employer’s premises, such as parking lots or walkways.22 As long as rallies do not disrupt operations, or traffic, management cannot film or write down names.23

Informational picketing. Informational picketing (picketing not part of a strike) adds force to a contract campaign. The NLRA protects the activity unless the contract has a no-picketing clause.24 Typical signs: “Fighting for a fair contract,” “Honk if you’re with us.” Bullhorns, drums, and banners can enliven the activity. Family members can join. In the absence of violence or blocking, the employer may not film or take photographs.25

Work-to-rule. In a “work-to-rule” action, employees scrupulously follow company policies, procedures, and standards, es­pecially directives dealing with safety and hygiene. No one volunteers for extra duties, performs off the clock, or works at more than normal speed. Everyone takes full breaks.

The NLRB has not drawn a clear line between protected work-to-rule activity and an unprotected slowdown or “partial strike.” One decision, however, prohibited discipline against employees who deliberately left their personal tools at home. In language suggesting a wide application, the Board declared:

Where an action is voluntary, the concerted refusal by employees to perform that action is a protected concerted activity and does not constitute an unlawful partial strike.26

Workers should be instructed to carry the campaign out unobtrusively, without open defiance. Direct orders from supervisors to perform tasks should be obeyed.

Boycott. Unions have a right to seek support from customers and the public. This includes a plea to boycott the employer’s products.27 Boycott activities can include:

Handbills to persons approaching the facility

Handbills at trade shows

Signs on automobiles

Airplane banners

Bridge banners

Letters to customers, places of worship, and civic groups

Stockholders and directors. Campaigns can be directed against officers, stockholders, trustees, and directors. The union can send letters, make visits, distribute flyers, and picket homes.

Because the NLRA prohibits secondary picketing (see pages 55–56), the union usually cannot picket a business owned or managed by a stockholder or a director. It can, however, use flyers and large stationary banners to ask patrons to take their business elsewhere (see Chapter 9).

Personnel policy

Q. A rule in our personnel handbook prohibits employees from remaining on the property after work. Can it be enforced against a union rally in the company parking lot?

A. No. A policy that effectively prohibits lawful concerted activity violates the NLRA — even if it was enacted for a legitimate reason.28 Employees may not be disciplined for violating an illegal rule.29 Nor may the employer charge an employee with insubordination for ignoring an order to comply.30

Overtime moratorium

Q. Our contract says employees can decline overtime requests. To give our bargaining team some heft, can we tell everyone to refuse ?

A. Not safely. Section 8(d)(4) of the NLRA prohibits a union from striking for a new contract from the day the union requests negotiations to the day the contract expires. Refusing overtime as a group is considered a strike.31

Uniform picketing

Q. Can management bar us from wearing our uniforms during informational picketing?

A. No, unless a company rule prohibits employees from wearing uniforms off duty and the rule has been consistently enforced.32

Refusal to bargain

Q. Can management refuse to bargain until the union stops picketing, holding rallies, and carrying out other contract campaign tactics?

A. No. An employer’s bargaining duty does not disappear because the union engages in concerted activities.33

Social media

Q. Our personnel policy says “Employees may not use the internet to make disparaging, discriminatory, or defamatory comments about the company or the employee’s superiors.” Can the company apply this rule to employees who attack the company on Facebook?

A. No. Posting contract or other union-related messages on the internet is protected by the NLRA.34

Customer relations

Q. The union president told management that unless more progress was made in negotiations she would notify customers to expect a strike. The HR director responded that the company would sue her for “tortious interference.” Is the president at risk?

A. No. Unions can contact customers to seek support, urge a boycott, or warn of a possible strike.35 A threat to sue an employee or a union for taking part in protected activity is an unfair labor practice.36

Honest mistake

Q. We made a mistake in one of our leaflets describing the company’s bargaining position. Can we be disciplined for spreading falsehoods?

A. No. An employee cannot be punished for distributing inaccurate literature unless the inaccuracy is deliberate or malicious.37

Charity event

Q. The President of the company is receiving a charity award at a local restaurant. What can we do at the event?

A. You can leaflet and hold stationary banners attacking the President and the company and ask persons not to go in. But you cannot picket the restaurant or disrupt the meal.


Notes

1. See Palm Court Nursing Home, 341 NLRB 813, 819 (2004) (“Long­standing precedent establishes that employers and unions have the right to choose whomever they wish to represent them in formal labor negotiations.”); Caribe Staple Co., 313 NLRB 877, 889 (1994) (employer cannot insist that union reduce size of bargaining team); Standard Oil Co. of Ohio, 137 NLRB 690, 690 (1962) (employer may not condition bargaining on union not including temporary bargaining team members). But note: If the employer is paying wages for bargaining time, the union may not have a right to unilaterally enlarge the size of its bargaining team.

2. See Bartlett-Collins Co., 237 NLRB 770, 773 (1978) (threshold matters, preliminary and subordinate to substantive negotiations, “should be accorded the status and attendant characteristics of a nonmandatory subject of bargaining.”); Vanguard Fire & Security Systems, 345 NLRB 1016, 1017-1018 (2005) (employer cannot insist on agenda covering particular points).

3. USF Red Star, 339 NLRB 389, 391 (2003) (“Employees have a protected right under Section 7 of the Act to wear union insignia while working.”); Escanaba Paper Co., 314 NLRB 732, 734 (1994) (“no scab,” “flex this,” and other buttons protected by NLRA).

4. AT&T Connecticut, 356 NLRB No. 118, slip op. at 1-2 (2011).

5. USF Red Star, 339 NLRB 389 (2003).

6. Pathmark Stores, 342 NLRB 378, 379 (2004) (grocery employees T-shirt with slogan “Don't Cheat About the Meat,” unprotected).

7. Escanaba Paper Co., 314 NLRB 732, 734 (1994).

8. Sacred Heart Medical Center, 347 NLRB 531, 531-532 (2006).

9. United Parcel Service, 195 NLRB 441, 441 (1972).

10. See Holladay Park Hospital, 262 NLRB 278, 279 (1982) (ban on yellow ribbons worn to show support for union bargaining position unlawful where employer previously allowed nurses to wear red ribbons at Christmas; green ribbons on St. Patrick’s Day, smile buttons, and buttons saying “Pet me, I purr”); St. Joseph’s Hospital, 225 NLRB 348, 348-349 (1976) (hospital that ordered three nurses to remove allegedly controversial union buttons violated Act because it had previously allowed nurse to wear “Kiss me, I’m Irish” button).

11. London Memorial Hospital, 238 NLRB 704, 708 (1978).

12. Saint Vincent’s Hospital, 265 NLRB 38, 42 (1982).

13. See, e.g., Tenneco Automotive, Inc., 357 NLRB No. 84, slip op. at 5 (2011) (“It is well settled that a refusal to comply with a directive to cease protected communications does not constitute insubordination.”); USF Red Star, 339 NLRB 389, 390-391 (2003) (written warning); Kolkka Tables and Finnish-American Saunas, 335 NLRB 844, 848-850 (2001) (suspension). Note: When a ULP charge alleges illegal discipline, the NLRB often “defers” prosecution to the grievance and arbitration process. Although labor arbitrators are not bound by legal precedent, they often uphold NLRA rights. See State of Iowa, 112 LA 360 (Jay, Arb. 1999) (hospital may not ban button reading: “When will the shift end?”); Atlanta Newspapers, 57 LA 841 (Crane, Arb. 1971) (employer not justified in discharging employee for refusing repeated orders from foreman to remove union-related badge).

14. Republic Aviation Corp. v. NLRB, 324 U.S. 793 (Sup. Ct. 1945); Poly-America, Inc., 328 NLRB 667, 668 (1999) (employees did not engage in punishable insubordination when they refused to stop distributing union literature and leave employer’s outside nonwork area); Tri-County Medical Center, 222 NLRB 1089, 1089 (1976) (“[E]xcept where justified by business reasons, a rule which denies off-duty employees entry to parking lots, gates and other outside nonworking areas will be found invalid.”). Note: The fact that a lounge or assembly area is partially or occasionally used for work does not provide a basis to prohibit the distribution of union literature. United Parcel Service, 331 NLRB 338, 341 (2000).

15. See AMC Air Conditioning Co., 232 NLRB 283, 284 (1977) (“[An employer] cannot lawfully require an employee to secure permission as a precondition to engage, without fear of management interference or retaliation, in protected concerted activities on company property in nonwork areas on the employees' free time.”). Note: An exception may apply if the union contract says permission must be obtained.

16. DHL Express, 355 NLRB No. 144 slip op. at 8 (2010).

17. Gainesville Mfg. Co., 271 NLRB 1186, 1188 (1984) (“[T]he close presence of the representatives of [the employer] during the handbilling constituted obvious overt and intended surveillance of union activities…”). Note: Literature may lose its protected character if it attacks the employer’s products or services, disrupts plant discipline, or spreads malicious falsehoods. New York University Medical Center, 261 NLRB 822, 824 (1982).

18. E.R. Carpenter Co., 284 NLRB 273, 275 (1987) (windshields); Mid-Mountain Foods, 332 NLRB 229, 229-230 (2000) (break room); Superior Emerald Park Landfill, LLC, 340 NLRB 449, 457-458 (2003) (lunchroom).

19. Santa Fe Hotel, 331 NLRB 723, 723 (2000).

20. Highland Superstores, 314 NLRB 146, 149 (1994) (handbills asking customers to shop elsewhere not disloyal because they did not “cast aspersions upon the Company’s service or upon the products it delivered to its customers”).

21. Note: Although the NLRA requires health care unions to provide 10 days notice before picketing or striking, notice is not required for a peaceful rally held away from an institution’s entrance. Sheet Metal Workers’ Intern. Ass’n, Local 15 v. NLRB, 491 F.3d 429, 439-440 (D.C. Cir. 2007).

22. Miller Industries Towing Equipment, 342 NLRB 1074, 1086-1087 (2004) (employer violated NLRA when it prohibited employees from holding rally and circling through parking lot with signs). Note: In Miller Industries, supra, the employer argued that the rally was disruptive because working employees gathered at windows to watch. The NLRB rejected the argument because the employer could have easily directed the observers to return to their stations.

23. Hospital Episcopal San Lucas, 319 NLRB 54, 59 (1995) (writing down names); Embarq Corp., 358 NLRB No. 134 slip op. at 3 (2024) (photographs).

24. Wolfie’s, 159 NLRB 686, 694-695 (1966) (rejecting employer’s contention that to permit employees working on one shift to picket the next is to require the employer “to finance the pickets”); The Mandarin, 223 NLRB 725, 725 (1976) (employer violated Act when it told employees they could not continue working at restaurant if they continued picketing on days off); E.L. Wiegand Div. v. NLRB, 650 F.2d 463, 474 (3d Cir. 1981). Note: Picketers may not be treated as strikers and replaced. E.L. Wiegand Div. v. NLRB, 650 F.2d 463, 474 (3d Cir. 1981).

25. Embarq Corp., 358 NLRB No. 134 slip op. at 3 (2012). Note: Health-care unions must give 10 days written notice of the day and time picketing will commence. The union must also notify the Federal Mediation and Conciliation Service (FMCS). Further Note: Infor­ma­tional picketing outside a hospital administrative building does not require advance notice if the building does not house patient care activity and is not adjacent to such a facility. See Presbyterian Hospital, 285 NLRB 935, 936 (1987).

26. Riverside Cement Co., 296 NLRB 840, 841 (1989).

27. Santa Barbara News-Press, 357 NLRB No. 51, slip op. at page 4 (2011) (“[B]oycott oriented communications, such as the employees’ ‘Cancel Your Newspaper Today’ banner message, do not constitute disloyalty that would result in a loss of the Act’s protection.”); Highland Superstores, 314 NLRB 146, 146 (1994) (employer violated NLRA by threatening employees with termination for handbilling in support of customer boycott); Circle Bindery, 218 NLRB 861, 861-862 (1975) (discharge illegal where reason was employee’s efforts to convince contractor to remove job from employer). Note: Employers sometimes threaten to sue unions for “tortious interference with advantageous contractual relations” when they learn of communications with customers. Such a suit would be subject to dismissal in the absence of proof of actual malice. See Beverly Hills Foodland, Inc. v. Food & Commercial Workers Local 655, 39 F.3d 191, 196 (8th Cir. 1994) (“Here Foodland has alleged the distribution of the Union handbill tortiously interfered with its business relations with customers. Because the statements within the handbill are afforded protection under federal labor law, the conduct of distributing the handbills must be afforded the same protection.”). Some courts have dismissed tortious interference lawsuits on pre-emption grounds. See Wilkes-Barre Publishing Co. v. Newspaper Guild of Wilkes-Barre, 647 F.2d 372, 381-382 (3d Cir. 1981), (“[W]here parties to a labor dispute are charged with tortious interference with a collective bargaining agreement, at least in the absence of outrageous or violent conduct, state law causes of action are preempted.”); In re Sewell, 690 F.2d 403, 408 (4th Cir. 1982) (NLRA preempts state law claim). Further Note: Where a lawsuit against a union is not reasonably based, the NLRB may find an unfair labor practice and order the employer to pay for the union’s legal expenses. Milum Textile Services Co., 357 NLRB No. 169, slip op. at 3-6 (2011).

28. See Tri-County Medical Center, 222 NLRB 1089, 1089 (1976).

29. Poly-America, Inc., 328 NLRB 667, 668 (1999) (“[B]ecause, as found by the judge, the Respondent's no-distribution/no-solicitation rules as applied to its nonwork areas are invalid, the imposition of any discipline for violation of those rules is likewise invalid.”).

30. See Kolkka Tables and Finnish-American Saunas, 335 NLRB 844, 848-850 (2001) (suspension for repeatedly refusing supervisor’s order to remove union stickers from personal toolbox and for refusing to leave facility, unlawful). Note: NLRA protections do not apply if the rule appears in the union contract.

31. See IUE Local 742 (Randall Bearings), 213 NLRB 824, 825-828 (1974).

32. The Clarion Hotel-Marin, 279 NLRB 481, 492 (1986).

33. See Miron & Sons, 358 NLRB No. 78, slip op. at 19-20 (2012).

34. Valley Hospital Medical Center, 351 NLRB 1250, 1254 (2007). Note: Monitoring employees internet posts may violate the NLRA’s anti-surveillance policies. See Flexsteel Industries, 311 NLRB 257, 257 (1993).

35. Lineback v. Printpack, Inc., 979 F. Supp. 831, 840-842 (S.D. Ind. 1997) (letter from local president to customers stating: “I want to alert you to a potentially alarming situation at our plant that could have an impact on the quality of the packaging materials we manufacture for [your Company] … We hope that if the plant’s new management provokes a strike, that you will consider withdrawing your patronage, both because we could no longer guarantee the quality of our product and because it would be the right thing to do.”); Sacramento Union, 291 NLRB 540, 547-550 (1988) (letter to newspaper’s advertisers stating that the union had been trying for a year and a half to get a contract, that the paper’s circulation had been declining, and that the newspaper was heading downhill).

36. See DHL Express, 355 NLRB No. 144, fn.3 (2010); Prime Time Shuttle International, 314 NLRB 838, 842-43 (1994). See also Beverly Hills Foodland, Inc. v. Food & Commercial Workers Local 655, 39 F.3d 191, 196 (8th Cir. 1994) (handbill asking customers to boycott not grounds for tortious interference lawsuit).

37. Professional Porter & Window Cleaning Co., 263 NLRB 136, 139 fn.12 (1982) (“[T]he truth or falsity of a communication is not material and is not the test of its protected character.”).

38. Litton Financial Printing Div. v. NLRB, 501 U.S. 190, 198 (U.S. Sup. Ct. 1991). Note: A contract provision can grant an employer the right to discontinue a benefit at expiration. To qualify as a waiver, however, the provision must be clear and unmistakable. A provision that simply states that a benefit is effective “for the duration of this agreement” does not permit the employer to make unilateral changes when the contract expires. The Finley Hospital, 359 NLRB No. 9, slip op. at 3 (2012).

This is a sample chapter from No Contract, No Peace: A Legal Guide to Contract Campaigns, Strikes, and Lockouts.

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