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Union unfair labor practices largely parallel those of employers, with some exceptions that relate to the power that unions may attempt to influence over their members and over employers other than those whose employees they represent.
The exceptions prohibit conduct that:
Section 8(b)(1)(A) of the NLRA forbids a labor organization or its agents “to restrain or coerce employees in the exercise of the rights guaranteed in section 7.” Union conduct that is reasonably calculated to restrain or coerce employees in their section 7 rights violates section 8(b)(1)(A) regardless of whether it succeeds in actually restraining or coercing employees.
A union may violate section 8(b)(1)(A) by coercive conduct of its officers or agents, of pickets on a picket line endorsed by the union, or of strikers who engage in coercion in the presence of union representatives who do not repudiate the conduct. A finding of union agency is a prerequisite to union liability for unfair labor practices. Conduct that is not attributable to a union agent cannot be the basis of union liability.1 Unlawful coercion may consist of acts specifically directed at an employee, such as physical assaults, threats of violence and threats to affect an employee’s job status.
A union owes a duty of fair representation to all the employees it represents. It may exercise a wide range of reasonable discretion in carrying out the representative function, but it violates section 8(b)(1)(A) if it takes or withholds action on their behalf because of their union activities, refusal to support or engage in union activities or for an arbitrary reason, such as an employee’s race or sex. Examples of section 8(b)(1)(A) violations include:
Section 8(b)(1)(B) prohibits a labor organization from restraining or coercing an employer in the selection of a bargaining representative. A union may not coerce a member who acts as a representative of the employer in the adjustment of grievances.
Examples of section 8(b)(1)(B) violations include:
Section 8(b)(2) makes it an unfair labor practice for a labor organization to cause or attempt to cause an employer to discriminate against an employee in violation of section 8(a)(3).
The section is violated by agreements or arrangements with employers, other than lawful union-security agreements, that condition employment or job benefits on union membership, on the performance of union membership obligations or on arbitrary grounds. But union action that causes detriment to an individual employee does not violate section 8(b)(2) if it is consistent with nondiscriminatory provisions of a bargaining contract negotiated for the benefit of the total bargaining unit, or if the action is based on some other legitimate purpose.
Section 8(b)(3) makes it illegal for a labor organization that represents the employer’s workers to refuse to bargain in good faith with that employer about wages, hours and other conditions of employment. This section imposes on labor organizations the same duty to bargain in good faith imposed on employers by section 8(a)(5).
Although a union’s contract negotiators might try to establish wages and benefits comparable to those contained in other bargaining agreements in the area, the union may not insist on such terms without giving the employer an opportunity to bargain about the terms.
When a union bargains with a group of employers in a multi-employer bargaining unit, the union may withdraw at any time from bargaining on that basis and bargain with one of the employers individually if the individual employer and the multi-employer group agree to the union’s withdrawal. In the absence of employer consent, a union may withdraw from multi-employer bargaining by giving the employers notice of its withdrawal near the expiration of the agreement but before bargaining on a new contract has begun.
Section 8(b)(3) also requires the union to carry out its bargaining duty fairly with respect to the employees it represents. A union violates section 8(b)(3) if it negotiates a contract with racially discriminatory provisions, or if it refuses to handle grievances under the contract for irrelevant or arbitrary reasons.
Unions do not have an absolute right to call a strike. Section 8(b)(4) prohibits a labor organization from engaging in strikes or boycotts or taking other specified actions to accomplish certain “objects,” as listed in the NLRA. A union commits an unfair labor practice if it takes any actions listed in clauses (i) and (ii) as a means of accomplishing any of the objects listed in subparagraphs (A)-(D) of section 8(b)(4).
Congress’ purpose in drafting section 8(b)(4) was to preserve the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes and shield unoffending employers and others from pressure in controversies not their own.2
Generally speaking, clauses (i) and (ii) forbid a union or its agents from striking or causing or encouraging a strike, work stoppage or refusal to perform services; or to threaten, coerce or restrain any person, where an object of such activity is, among other things, to force or require any person to stop doing business with, or handling the products of, any other person.
Activities specified in subsections (i) and (ii) won’t rise to the level of an unfair labor practice under section 8(b)(4) unless they enforce a “secondary boycott.” A secondary boycott occurs if a union has a dispute with Company A and causes the employees of Company B to stop handling the products of Company A, or otherwise forces Company B to stop doing business with Company A. Specifically, section 8(b)(4)(B) states the following is unlawful union activity:
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; 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 [section 159 of this title]: Provided, that nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing.
In 2021, the Board held that a union displaying inflatable rats and stationary banners at the facilities of secondary employers does not violate section 8(b)(4)(i) or (ii)(B).3
For more information, see Employee Rights to Strike and Picket.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 facility 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:
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 facility is closed by a strike, that employer becomes an ally.
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:
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.
In some situations, an employer may set aside or reserve a certain facility 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 held4 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 facility was 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).
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, in one such case, a union picketed restaurants to further its primary dispute with the bread maker. 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.5
The Board ruled, “[t]he 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.”
Similarly, the Board held that a union violated section 8(b)(4) by using a bullhorn to broadcast excessively loud messages while hand billing in front of a hotel and restaurant to force those entities to stop doing business with a non-union contractor with whom the union had a dispute.6 The Board reasoned that the loudness of the messaging, its effect on patrons and guests of neutral entities, and their duration supported a finding of coercion and disruption of secondary employers in violation of the Act.
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:
Examples of Section 8(b)(7) violations include:
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.
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.
1. Amalgamated Transit Union, Local 1433, 360 NLRB No. 44 (2014)
2. NLRB v. Denver Building and Construction Trades Council, et. al., 341 U.S. 675, 692 (1951)
3. International Union of Operating Eng’rs (Donegal Servs.), 371 NLRB No. 28 (Sept. 28, 2021)
4. Local 761, International Union of Electrical, etc. v. NLRB, 366 U.S. 667 (1961)
5. American Bread Co., 170 NLRB. 91 (1968); but see NLRB v. Fruit & Vegetable Packers & Warehousemen (Tree Fruits), 377 U.S. 58 (1964) (concluding that picketing aimed only at persuading consumers of a neutral grocery store not to buy a struck product of the primary employer is not unlawful secondary activity)
6. Fairfield Inn & Suites by Marriott, 371 NLRB No. 19 (Aug. 27, 2021)