Are Picket Line Agreements Outlawed?

Many collective bargaining contracts in the past have included a clause whereby the employer will not require his employees to cross a picket line around the premises of a secondary employer. Since the language of the new Section 8(e) outlaws all agreements to cease doing business with any other person, such picket line clauses are now clearly illegal. (For legislative history, see Rep. Cramer's statement, page 153.) However, a modified form of such clauses will remain perfectly proper. Where the employer merely agrees with a union not to discipline employees who, on their own and without unlawful inducement by a union, refuse to cross a picket line, such agreements are not banned by the revised Taft-Hartley Act.

What Are the Publicity Boycott Provisions of the New Law?

Secondary boycotts that are induced by publicity rather than by picketing are nonetheless prohibited by the language of Section 8(b)(4) of the Taft-Hartley Act as modified by the Landrum-Griffin Act. However, one significant exception is set forth at the end of Section 8(b)(4). This proviso holds that nothing in Section 8(b) (4) prevents a union from truthfully advising the public and union members that (1) it has a primary dispute with an employer who produces certain products and (2) that the primary employer's products are being distributed by another or secondary employer. (For legislative history, see excerpt from House Conference Report regarding Sec. 704(a), page 144, and Senator Goldwater's remarks on page 145.)

There are several specific limitations on the right to publicize the primary dispute.

First, picketing may not be employed. Handbills, newspaper, radio or television advertising may be utilized, but ambulatory picketing of the secondary employer's place of business is forbidden.

Second, the right to publicize a dispute does not extend to service industries where the primary employer does not produce a product. Third, the right to publicize a dispute does not exist where the secondary employer is not engaged in the distribution of the primary employer's product or products. Thus, where the secondary employer is a supplier to the primary employer, there is no right to publicize the dispute. Moreover, where the secondary employer is the ultimate consumer and utilizes the product or products for its own purposes-not for distribution to another the right to publicize. the dispute. does not exist.

Fourth, the statute specifically provides that the publicity must not interfere with pickup and deliveries at the place of business of the secondary employer engaged in the distribution of the products of the primary employer. Nor may the publicity have an effect of inducing any individual employed by any person (this does not include persons employed by the primary employer) to refuse to transport any goods or not to perform any services for the secondary employer. Thus, if the boycott victim can show that an effect of the publicity has been an interruption of transportation or refusal to perform the service at the secondary employer's place of business, he can take steps to halt it.

Finally, since the proviso applies only to Section 8(b)(4) of the TaftHartley Act, publicity that constitutes restraint or coercion of employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or in the exercise of their right to refrain from all such activities, would be an unfair labor practice under Section 8(b)(1) of the Taft-Hartley Act.

The net effect of this proviso is that publicity directed at the consuming public advising that a retailer is selling merchandise of a manufacturer with whom the union has a dispute is proper so long as truck drivers continue to deliver the product to the retailer and the retailer's employees do not refuse to perform their normal duties, or the employees of some other employer-for example, painters employed by a contractor engaged by the retailer to paint the store-do not refuse to work at the retailers store.

How Are the Secondary Boycott Prohibitions Enforced? A violation of the secondary boycott provisions of the Taft-Hartley Act, sections 8(b)(4) and 8(e) constitute unfair labor practices and a complaint may be filed by any person with the National Labor Relations Board charging such a violation. The mandatory injunction section of the Taft-Hartley Act, Section 10(1) is amended by the LandrumGriffin Act to include the new anti-hot cargo provision, 8(e). (For text of 704(d) which amends 10(1) see page 202; for legislative history see Senator Goldwater's statement, page 162.) Under 10(1) the National Labor Relations Board is required to give secondary boycott cases priority over all other cases except other boycott charges. If, after an investigation, the NLRB has reason to believe the boycott charges are

true, the NLRB is required to seek in the federal courts an injunction to stop the unfair labor practice.

Any person who has been injured in his business or property by reason of a violation of Section 8(b) (4) of the revised Taft-Hartley Act may also sue for damages in the apprporiate district court. (For text of Sec. 704(e) see page 202; for Leg. Hist. see Senator Goldwater's remarks on page 164.)

RESTRICTIONS ON PICKETING

For the first time, Congress has come to realize that picketing by labor unions is more than mere free speech. After hundreds of witnesses through years of congressional hearings have revealed the coercive effect of picketing, Congress finally has made an attempt to restrict certain kinds of picketing. At the same time, the new law makes it known that there is no attempt to interfere with peaceful, primary picketing that does not coerce the public or stop the employees of other employers from working. In two places in the new law, there are special sections devoted to picketing: Section 704 and Section 602.

How Does the New Law Deal with Picketing to Compel Union Recognition or Union Membership?

Section 704 (c) of the Landrum-Griffin Act creates a new unfair labor practice for unions. It adds a new section 8(b) (7) to the Taft-Hartley Act which is designed to restrict recognition and organizational picketing. In the past a standard technique of the professional unionist to increase union membership rolls has been to use a picket line. This would bring economic pressure upon an employer to make him coerce his employees into joining a union. When union officials know they can not win an election among the employees, they resort to economic blackmail. Thus the term "blackmail picketing".

Although there is no practical difference between recognition and organizational picketing, some courts have drawn a legal distinction between these two varieties of compulsion. In recognition picketing the admitted purpose of the picketing is to win a contract with the employer in which he agrees to recognize the union as the exclusive bargaining agent for his employees. The language of the picket signs, demands by union officials, and public statements by the union are part of the evidence that helps to prove the picketing is for recognition.

Organizational picketing is picketing to advertise the union. It is picketing for membership purposes. The signs may read: "Carpenters,

Join Our Union". The union boss is careful not to demand a contract or seek recognition as bargaining agent. This comes later.

Courts that make a distinction between recognition and organizational picketing have held that recognition picketing violates the employee's right to join or decline to join a labor union. They have held that organizational picketing does not have this effect. To those who face the problem in real life, there is no difference both are forms of coercion. (For legislative history see Senator Kennedy's remarks from page 16415 of the Congressional Record, quoted on page 158, the excerpt from House Conference Report on Sec. 704(c), page 159, and Senator Goldwater's statement, page 160.)

What Is the Language of Section 8(b)(7)?

The new law attempts to limit coercive picketing by the following language:

(7) 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 employee, 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.

The statute then sets out three occasions where picketing for the above purposes would be considered an unfair labor practice. The three

are:

(A) Where an employer has lawfully recognized another union and the question of representation may not be legally raised at this time. (For legislative history, see Senator Goldwater's statement, page 160; and Rep. Griffin's statement, page 162.)

(B) Where a Taft-Hartley Act Election has been held within the past 12 months. (For legislative history, see Rep. Roosevelt's statement, page 158; Senator Goldwater's statement, page 160; and Rep. Griffin's statement, page 162.)

(C) Where the picketing has been in progress for a reasonable time (not more than 30 days) and a petition for a representation election has not been filed with the National Labor Relations Board. When a petition is filed, the NLRB is required to direct an election regardless of whether the picketing union shows a substantial interest in the election. In such elections, the NLRB is to determine the appropriate bargaining unit for the employees. (For legislative history, see statements by Senator Goldwater, page 160, and Rep. Griffin, page 162.)

How Is Publicity Picketing Made an Exception?

Subparagraph (C) above carries an exception. It is designed to permit a limited form of organizational picketing that allows a union to continue picketing until an election is held so long as there is no interruption of transportation of goods or services by employees of other employers. In other words, the section is believed to mean that until an election is held and the NLRB certifies the results, a union may picket or use other forms of publicity to advise the public that the employer does not employ union members or have a union contract. The publicity and picketing is contingent on the fact that other employees do not refuse to work. (For legislative history see Senator Kennedy's statement from page 16413 of the Congressional Record on page 158. Also Senator Goldwater's statements, pages 160; and Rep. Griffin's statement, page 162.)

When Is Primary Picketing Permitted?

The new law in Section 704(a) maintains the principle that it is legal for a union to picket an employer with whom it has a dispute so long as it does not involve secondary or neutral employers. Union lobbyists fought hard to add a provision to permit "common situs" picketing. Such a provision would have removed all restrictions against unions picketing construction sites where numerous subcontractors are at work or retail stores which sell goods made by thousands of manufacturers.

In general, present law prohibits common situs picketing when the primary employer has a place of business in the vicinity which can be picketed and when his employees spend a portion of their time at that location.

In order to leave no doubt that it was the intention of Congress to preserve primary picketing, a proviso was added to the new Section 8(b)(4) (B) which reads: "Nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing."

Section 8(b)(4)(B) is the heart of the anti-secondary boycott provision of Taft-Hartley. To be certain, however, that a court or the NLRB does not misinterpret the intent of Congress, the House Conference Report says it is not the purpose of the Congress to permit common situs or secondary picketing. (See page 145 and Senator Goldwater's statement, page 146.)