How Are the Picketing Restrictions Enforced?

Section 10(1) of the Taft-Hartley Act, the mandatory injunction section to stop secondary boycotts, was amended by Section 704(d) to include the prohibitions against picketing as set out in the new Section 8(b) (7). (For legislative history, see Senator Goldwater's statement regarding Sec. 704(d), page 162). But a weakening exception was added to make it difficult to obtain an injunction against blackmail picketing. This proviso reads that if a union, charged with illegal picketing, files a charge against the picketed employer, contending that he has committed an unfair labor practice by interfering with the formation or operation of the union, and if the Labor Board believes there is sufficient evidence to support the issuance of a complaint against the employer, the NLRB shall not seek the injunction to stop the picketing.

It makes no difference if a trial examiner for the Board or the Board itself later dismisses the union's charge of interference. Nor does it matter if a federal court later reverses the NLRB's finding that the employer committed an unfair labor practice. This is particularly bad law, because in a fairly high percentage of cases, the NLRB overrules its trial examiners or the courts reverse the finding of the NLRB. Unions undoubtedly will use the exception to delay injunctions to stop their unfair picketing.

There is no right to seek damages in the courts for injury to business caused by unlawful picketing under Section 8(b) (7) although certain picketing unlawful under Section 8(b) (4) discussed earlier may be grounds for a damage suit under the revised Section 303 (a) of the TaftHartley Act. (For legislative history, see Senator Goldwater's statement regarding Sec. 704 (e), page 164).

How Is an Employer Protected from Extortion Picketing? The labor rackets investigation conducted by the Senate's McClellan Committee brought to public attention the use of picketing by union racketeers to "shakedown" or extort money from employers. Phony pickets were hired to parade before a place of business until the employer paid off the racketeer.

The Landrum-Griffin Act puts an end to this activity in Section 602, by imposing a criminal penalty of not more than $10,000 fine or not more than 20 years imprisonment, or both, for picketing the premises of any employer to extort money or other thing of value from him. This section is designed to supplement the provisions of the Hobbs Anti

Racketeering Act. (For legislative history, see Senator Kennedy's remarks, page 128.)

What Are the Special Construction Industry Contract Provisions?

Major changes are made by the Landrum-Griffin Act in the permissible terms of contracts under the Taft-Hartley Act between employers and unions in the building and construction industry. (For text of Sec. 705, see page 202.) Under the old language of the Taft-Hartley Act, it was unlawful for an employer to recognize and bargain with a union or enter into a contract with a union before he had hired at least a representative number of the employees to be represented by the union or covered by the contract. The law also forbade employers to discriminate in their hiring practices either for or against union membership. Contracts which were otherwise legal became unlawful when they included compulsory union membership requirements for employees when the union was not the representative of a majority of the employees. The revisions made by the Landrum-Griffin Act are almost identical to the "pre-hire" proposals first contained in the Kennedy-Ives Bill of 1958. They were brought forward in the Kennedy-Erwin Bill of 1959 and narrowed in scope before finally approved in the Landrum-Griffin Act. (For legislative history, see Senator Kennedy's statement about 705(a), on page 164, excerpt from Senate Committee Report No. 187, page 165, and excerpt from Senate Committee Report No. 1684, page 167.

The new language is added to Section 8 of the Taft-Hartley Act as paragraph (f). It provides that an employer whose primary activity is building and construction may make a contract with a union whose members are building and construction employees to cover employees presently working for the employer or who will be hired by the employer for work in the building and construction industry, without thereby committing an unfair labor practice, even though the following conditions exist:

First, the union has not been established as the representative of a majority of the employees under the provision of Section 9 of the TaftHartley Act before the agreement is entered into; or

Second, the contract requires all employees to join the union, or be fired, within seven days after they are hired or within seven days after the effective date of the contract, whichever is later, (for legislative history, see excerpt from Senate Committee Report No. 187, page 167 and Senator Goldwater's statement, page 169); or

Third, the contract requires the employer to notify the union of all job openings or states that the union shall have the chance to refer qualified workmen to fill all such jobs; or

Fourth, the contract requires the employer to hire only persons with specified minimum training or experience or requires the employer to give preference, when he hires, to persons on the basis of length of service with the employer, in the industry or in the particular geographical area. (For legislative history, see Senator Goldwater's statement on page 169.)

There are several qualifications to this right of contracting outside of the normal limitations applied to all other industries.

First, the employer must be primarily a building contractor. An employer who is primarily a manufacturer but who incidently does his own installation work will not be allowed to make such a contract. An employer in another line of endeavor who has his own small building maintenance department will not so qualify.

Second, the union must have as its members employees in the building and construction industry. A union of professional engineers would not qualify. An industrial union as opposed to a craft union presumably would not qualify. (For legislative history, see excerpt from Senate Committee Report No. 187, page 167.)

Third, the employees to be covered by the contract must be those who are, or will be, engaged in the building and construction industry. Fourth, the union must not have been unlawfully established, maintained or assisted by an employer in violation of Section 8(a)(2) of the Taft-Hartley Act. A union controlled by an employer would not qualify. (For legislative history, see Senator Goldwater's statement, page 169.) In addition to these four qualification, there are two provisos added to the new Section 8(f). (For legislative history, see Senator Goldwater's statement, page 170.)

First, a building and construction employer remains subject to the final requirement in Section 8(a) (3). He must not discriminate against any employee who is not a member of the union with whom the employer has a contract which requires union membership after seven days, if the employer has reasonable grounds to believe membership in the union was not available to such employee on the same terms as for other union members or that such employee was denied membership for a reason other than the employee's refusal to offer to pay the usual union initiation fees and periodic dues.

Second, if the building and construction employer has signed a “prehire" contract with a union whose majority status has not been estab

lished, that contract will not bar a petition filed at any time for an election pursuant to Section 9(c) of the Taft-Hartley Act—an employee petition seeking to decertify the union or to select a different union, or an employer petition to determine the representative status of the union -or Section 9(e) of the Act-an employee petition to remove from the contract the compulsory union membership requirement.

There is nothing in this new section that requires employers or unions to enter into "pre-hire" contracts. The statute is purely permissive. (For legislative history, see exchange between Senators Holland and Kennedy, page 164, and Rep. Barden's statement, page 170.) Moreover, where the union has not established its majority status among the employees, it may not strike, picket or otherwise coerce an employer to sign a "pre-hire" agreement. (For legislative history, see exchange between Senators Holland and Kennedy, page 164, Rep. Barden's statement, page 170, excerpt from House Conference Report regarding Sec. 705 (a), page 165, and Rep. Thompson's statement, page 171.) This is true since a pre-hire agreement would be illegal except for the new Section 8(f), and 8(f) merely permits the voluntary agreement between the parties.

The permissive use in such contracts of provisions regarding union referral systems based on objective criteria does not in any way amend the present law regarding union hiring halls as set forth in the Mountain Pacific Case, 119 NLRB 883. This case established certain standards for non-discriminatory hiring. (For legislative history, see excerpt from House Conference Report, page 165, and excerpt from Senate Committee Report No. 187, page 167.)

How Are State Right-to-Work Laws Affected?

By specific provision in Section 705(b) of the Landrum-Griffin Act, the "pre-hire" contracts approved in the new Section 8(f) of the TaftHartley Act may not include compulsory union membership agreements in States which outlaw such agreements. (For legislative history, see Senator Goldwater's statement, page 169, Senators Holland and Kennedy statements, page 171, excerpt from Senate Committee Report No. 1684, page 172, and excerpt from Senate Committee Report No. 187, page 172.) Since the original text of 705 (b) contained a provision allowing construction employers and unions to insert in a "pre-hire" contract, job requirements based upon specified apprenticeship agreements, and this provision was eliminated from the statute because its practical application could be that only union members could qualify for employment where the union controlled the apprenticeship program, it is rea

sonable to assume that the Congress did not want to authorize any practice that would have the practical effect of permitting a union to require employment of union workmen only. Thus, any contract that not only spells out union membership as the basis for keeping a job, but also one that includes hiring requirements that have the practical effect of limiting employment to union members, would be illegal in any of the 19 States that have right-to-work laws.

How Do the Economic Strikers' Voting Rights Affect
Employers?

Economic strikers are employees on strike for reasons other than an employer's unfair labor practice-for wages, hours or other conditions of employment. Such employees may be permanently replaced by the employer with new employees. Under the old language of the TaftHartley Act such strikers who had been permanently replaced were not entitled to vote in a representation election. Since they were not entitled to get back their jobs in the bargaining unit, the law denied them a vote as to whether any union or which union would be the bargaining representative for the unit. (For legislative history, see excerpt from Senate Committee Report No. 187, page 139.) The Landrum-Griffin Act modified Section 9(c)(3) of the Taft-Hartley Act to permit permanently replaced economic strikers to vote in any election during the first 12 months after the strike begins under such regulations as the National Labor Relations Board finds are consistent with the purposes and provisions of the Taft-Hartley Act. (For text of Sec. 702 see page 199; for legislative history, see Sen. Kennedy's statement, page 139, and Rep. Griffin's statement, page 141.)

Although the statute is not specific in this regard, presumably both the replaced economic strikers and the replacements will be entitled to vote in an election held within 12 months after a strike begins. After 12 months the strikers cannot vote. Moreover, during the 12-month period, certain replaced strikers can be denied the vote: as where they committed acts of violence or engaged in other unprotected activity which would permit the employer to fire them, or where they ceased to be employees because they had obtained substantially equivalent employment elsewhere. (For legislative history, see Senator Goldwater's statement, page 140.) This revision of the law renews a question that existed under the old Wagner Act when both strikers and replacements were entitled to vote. When is a replacement to be considered permanent? This is a problem that will be resolved by the NLRB and the courts.