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Tagged with: Labor Law, Union Organizing
In March 2021, Amazon workers were in the midst of a union campaign. Standing outside the Birmingham, AL facility on a street corner was the president of the mid-South council of the Retail, Wholesale, and Department Store Union (RWDSU). With 40 years of organizing experience, it wasn't surprising that he was using old-school organizing tactics to convince workers to vote for the union. Until the vote, union representatives were on the street outside the facility handing out printed flyers. It was picketing the "old-school" way by doing what is called "union handbilling" or informational picketing. Whether union-free or unionized, you need to know the rules and take the steps that ensure the union operates within the law.
Picketing is a tactic for calling attention to worker issues and grievances. When a union pickets during a strike, it is meant to discourage strike breakers, vendors, and customers from entering a place of business. Picketing is also used for non-work-related protests, especially during the social justice protest movement in the past year or more. People gathered in parks carrying signs letting the public know people of color matter or environmental sustainability matters. They also assembled in public areas to let the public know a particular employer doesn't care about the safety of its employees and overworks and underpays workers. The bottom-line purpose of picketing is to share information and/or get recognition, and it can take place everywhere except on an employer's property.
Picketing is permitted by the National Labor Relations Act (NLRA) to "engage in concerted activities for the purpose of collective bargaining or other mutual aid or protections." So picketing is a protected concerted activity, but it includes more than people carrying signs. At the same time, they stand on a street corner, outside an employer's place of business, or walking up and down sidewalks. For example, you may think of picketing as only involving your employees. But secondary boycotts (NLRA Section 8(b)(4)) are basically sympathy union activities in which employees or contracted workers at a different business picket or boycott the primary employer.
There are many types of picketing. None of them allow blocking access to your facility unless a strike is in progress. The challenge is that picketing of any kind may influence employees or business associations to stay away from your workplace because the idea is to create an element of fear. In the U.S. Supreme Court case of DeBartolo v. Florida Gulf Coast Building and Construction Trades ((485 U.S. 568 (1988)), the court held that "picketing is a mixture of conduct and communication" and the conduct element (picket line) is the most persuasive. Vendors may refuse to deliver anything, customers stop buying products or services, and/or employees won't cross the picket line. If employees don't show up for work, of course, they can be terminated after going through the appropriate Human Resources process. But the whole process is one based on fear from union intimidation.
The two most common types of picketing are recognitional picketing and informational picketing. The NLRA and a number of subsequent NLRB decisions have established the rules of picketing.
Recognitional picketing is a union tactic used to compel employers to recognize a union as the only bargaining agent for workers. It would be much easier for the union if the employer would not force a union election and just agreed to bargain with the union. The NLRA Section 8(b)(7) allows recognitional picketing with four major limitations. It's not allowed:
Union-on-union picketing refers to a union wanting a different labor union than the one already representing employees. It is legally forbidden within 12 months after a valid union election.
Picketers can truthfully advise the public about the union status of the employer's workplace, i.e., has no union contract. However, the picketers can't impede the ability of employees to enter the workplace or vendors to pick up, deliver or transport goods or perform services.
Informational picketing is very common and a simple concept. It refers to carrying signs or handing out flyers or handbills that inform the public of things like the employer doesn't employ union members or doesn't have a union contract. If a workplace is unionized, informational picketing is a tactic to gain public support for a position, like increasing wages to the $15 minimum.
There is one important difference between recognitional picketing and informational picketing. Since informational picketing is not asking for union recognition – it's simply informing – the 30-day rule doesn't apply.
There are legal requirements for informational picketing. The basic rules for picketing in this type of picketing are as follows.
Area standards picketing falls outside the NLRA provisions. This picketing is a protest against a targeted employer paying wages below the prevailing union wage in the area. Commonly used in the construction industry, the NLRB looks at the specific activities to determine whether it is recognitional or informational picketing. If it is determined that it fits either type of picketing, then the relevant NLRA rules apply.
The Amazon union campaign included the RWDSU distribution of handbills to attempt to convince workers to sign a union card and to vote for the union during the union election. The handbills were also distributed to the general public to heighten public recognition and hopefully gain their support, so the pressure is placed on the employer.
So what is a handbill, and what is union handbilling? Conventional union handbilling is when unions distribute pieces of paper with a message on it, i.e., cards, flyers, leaflets, etc. It's not picketing in and of itself, but normally the distribution of paper documents with messages is used during informational picketing. Handbillers distribute their documents outside company property, like on a sidewalk.
Following are some facts about handbilling that you should train your leaders on.
Handbilling is used during picketing or as a standalone tactic. Any type of handbilling has strict rules that are in your favor as an employer. Handbilling is the exercise of free speech, so it is protected by the First Amendment of the U.S. Constitution, but that doesn't convey unlimited employee or employer rights. The rules of picketing establish the rights of the union representatives, employees, and the employer.
There is a fine line union people must walk when it comes to handbilling. At a labor law conference for union leaders to discuss effective area standards picketing, it was pointed out that picketing is most effective when it's used against secondary parties, like vendors delivering to your business, but that is outlawed. Picketing can also unintentionally trigger an NLRB election before the union is ready for one. Handbilling for non-picketing communication offers distinct advantages for the union, which is why the old-school tactic is still used.
Employees can and should be prevented from using paid time to distribute handbills. They should only use unpaid time, like unpaid lunch breaks, when off-duty, leave time granted, etc. They should also know that they are not allowed to distribute false information about the company.
The location of distribution and the status of employees is very important. It can get tricky too. Though handbilling is prohibited on company property, there may even be questions about that. In 2001, the NLRB found a Las Vegas hotel and casino unlawfully prohibited off-duty workers from handbilling to other restaurant employees and customers on company property. The NLRB said the handbilling was in non-work areas, and the employer couldn't show the ban was needed to maintain work production. The key word, in this case, is "non-work." This shows the difficulty you face in adhering to the law and why Projections, Inc. is persistent in advising employers to take advantage of UnionProof services.
Employer rights are found in the rules of picketing and in the handbilling rules.
A Supreme Court decision ((Lechmere, Inc. v. NLRB, 112 S.Ct.841 (1992)) decided an employer can bar non-employee union organizers from handing out leaflets on private property if the union has other means of communicating its message to employees. In this case, the union organizers placed union literature on car windshields. The cars were parked in a parking lot used mostly by employees. The employer had banned all soliciting and handbilling on its property and removed the handbills.
The Union organizers kept replacing them until eventually moving to a strip of grass next to the parking lot. One thing led to another, and the union filed an unfair labor practice that worked its way through the courts. The Supreme Court decision made it clear that employers can enforce non-discriminatory rules barring non-employee organizers from distributing literature on company property.
The exception (there's always an exception!) is that if employees can't be reached by the union's message, then the employer can't bar the union. The exceptions are very narrow and even narrower today because it's always possible to reach employees with internet or mobile phone based communication. Billboards, lawn signs, media ads, tweets, emails, social media posts, and websites promoting virtual walkouts are just some of the non-picketing communication that puts pressure on employers.
There is another issue that is far from permanently settled because politics is involved. In 2018, a Republican NLRB decided a case involving janitors in San Francisco. The janitors were employed by one company that subcontracted to another company to provide services in a third company's building. They decided to picket in front of their workplace to demand wage increases, better working conditions, and freedom from sexual harassment.
In reversing an Administrative Law Judge's decision for the union, the NLRB fell back on the federal labor law prohibiting employees from engaging in boycotts, pickets, or other activities directed at a secondary employer. In February 2020, a final NLRB rule was issued on joint-employer status. If there is a joint employer status, both employers must bargain with the union, are liable for unfair labor practices committed by the other, and are subject to picketing or other economic pressure in a labor dispute.
It all seems settled, but certainly, the NLRB will only have a Republican majority until August 2021. When Republican William Emanual's term expires, President Biden will nominate a Democrat, giving the Democrats a majority. Once that happens, a lot of NLRB decisions will be reversed, especially the ones issued while Trump was in office. The picketing and probably the handbilling rules will change.
The key to successfully barring union organizers from private property is to have a management policy that is rigorously maintained and enforced. In one NLRB case, the company Lechmere barred all solicitation, even from the Girls Scouts and Salvation Army. It is reminiscent of the "totality of circumstances" principle. If you allow any group to place handbills on employee windows, then it's more difficult to bar union organizers. Lechmere's policy and consistent enforcement enabled the company to keep union representatives off their property.
Since the Lechmere case, other NLRB decisions addressing employer behavior have precedent, and many have nuances not anticipated. In September 2019, in Kroger Limited Partnership/Mid-Atlantic and United Food and Commercial Workers Union 400, the NLRB limited the right of non-employee union representatives to access employer property for the purpose of union solicitations.
Kroger did not have a written policy on solicitation requests by non-employees and had authorized non-employee solicitation requests on an individual basis. But the property lease contained a provision that prohibited soliciting, handbilling, picketing, and loitering. An Administrative Law Judge ruled in favor of the union.
The NLRB disagreed, saying the employer only needs to permit access to the employer's property by non-employee union agents if the employer permits other non-employee, non-union organizations to engage in activities "similar in nature to those the union seeks to engage." So the employer can allow the Girl Scouts and bar the non-employees because the non-employee activities are not similar to Girl Scout activities.
Based on the many and varied NLRB decisions, the following recommendations are made.
Responding legally is of the utmost importance, even if the union representatives are clearly in the wrong. Your leaders should ask:
A "yes" answer to any of these questions means the employer can put a stop to the informational picketing, or handbilling. Union representatives can be asked to stop harassing anyone on their property and cease blocking entrances and exits. Handbills can be removed from car windows. Employees can be told to stop handbilling on work time. You can call the police should handbilling continue in violation of the law, though that may lead to a whole new set of issues. The Amazon handbillers were very careful to stay on public property but in a location where they could hand leaflets to employees through their car windows.
If all of this sounds confusing and complex, it's not surprising. The basic rules for union handbilling that adhere to NLRA rights are in place. However, numerous NLRB cases over the years prove that many scenarios continue to raise questions about employer and employee rights. They also demonstrate the persistence of unions in pushing the rules of picketing and handbilling.
Each scenario must be addressed, and then a new NLRB rule is formed, and it starts over again. To stay union-free or to legally manage picketing and handbilling events, it's important to always be prepared as an organization to address situations and to keep your leaders trained on union organizing. Remember that union handbilling will have no impact on your workforce when employee engagement is high and positive employee relations define the employer-employee relationship. Fortunately, you don't have to tackle all these issues alone. Projections, Inc. offers a comprehensive approach to training employees and leaders, engaging the workforce, and staying union-free.
[bctt tweet="To stay #unionfree or to legally manage picketing and handbilling events, it's important to always be prepared as an organization to address situations and to keep your leaders trained on #unionorganizing." username="projections"]
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