(Jenero and Spognardi Defending Against the Corporate Campaign, Selected Legal Responses to Common...

8/7/2019 (Jenero and Spognardi Defending Against the Corporate Campaign, Selected Legal Responses to Common Union Ta

1/22

Employee Relations L. J./Vol. 22, No. 2/Autumn 1996 119

CCC 0098-8898/96/2202119-20 1996 John Wiley & Sons, Inc.

LABOR-MANAGEMENT RELATIONS

Defending against the CorporateCampaign: Selected Legal Responses

to Common Union Tactics

KENNETH A. JENERO AND MARKA. SPOGNARDI

orporate campaigns are an increasingly favored means by unions to attemptto achieve their representational or collective bargaining objectives. Because

of the consequences of the permanent replacement of economic strikers, decliningunion membership, and vigorous employer union-free practices, corporatecampaigns have been embraced by unions to force management to capitulate totheir demands. As demonstrated by the Service Employees International Union(SEIU) in its Justice for Janitors campaign, and by the United Automobile

Workers (UAW) in its long-running dispute with Caterpillar, the variety of possible corporate campaign tactics is limited only by the unions imagination.These tactics can include, inter alia, symbolic demonstrations, informational picketing and handbilling, consumer boycotts, working-to-rule, picketing andhandbilling of neutral employers, and residential picketing of an employersofficers, directors, and managers.

This column examines selected tactics often used by unions in a corporateharassment campaign. It also discusses lawful measures that employers can takein response to these corporate campaign tactics, such as disciplining anddischarging employees for acts of disloyalty, prosecuting state law defamation

suits against unions which publish false statements about the employer,discharging employees for engaging in unprotected slowdowns or partial strikes,and securing injunctions against unlawful secondary activity and residentialpicketing.

Acts of Employee DisloyaltyCorporate campaign tactics which may constitute acts of employee

disloyalty include public disparagement of the targeted company, its products andservices, its management, or its labor relations policies;

Kenneth A. Jenero is a Partner and Chairman of and Mark A. Spognardi is a partner in, the Labor and Employment Law Department of McBride Baker &Coles in Chicago, Illinois.

C


2/22


120 Employee Relations L. J./Vol. 22, No. 2/Autumn 1996

disclosure of the targeted companys confidential business information; andinvolvement in consumer boycotts of the targeted companys products andservices. Although Section 7 of the National Labor Relations Act (NLRA)protects an employees right to engage in concerted activities for the purpose ofcollective bargaining or other mutual aid and protection, the scope of the

protection is not without limits. As noted below, the National Labor RelationsBoard (NLRB) and the courts have established criteria for determining when anemployees conduct crosses the line between protected concerted activity andunprotectedacts of disloyalty. The distinction is an important one: an employerlawfully may discipline and discharge employees who engage in unprotectedactivities.

Disparaging the Company

One typical corporate campaign tactic is public disparagement of thetargeted company, its products and services, its management, or its labor relationspolicies.1 For example, the union and its members may engage in symbolic

demonstrations in the workplace which direct ridicule and sarcasm toward thecompany or its management through the use of T-shirts, buttons, or handbills. Theunion and its members also may engage in actions directed at the public whichportray the targeted company as a corporate outlaw and villain, and ridicule anddisparage the company, its officers, or its products.

The NLRB has held that employees may communicate with third partiesto obtain their assistance when the communication (1) relates to a legitimate,ongoing labor dispute between the employees and their employer, and (2) doesnot constitute a disparagement or vilification of the employers product or itsreputation.2 If these tests are met, the communication is protected under the NLRA and the responsible employees may not lawfully be disciplined,discharged, or subjected to other adverse employment actions because they participated in the communication. However, not all employee communicationsmade during a labor dispute are protected.

In NLRB v. Local Union No. 1229, IBEW (Jefferson StandardBroadcasting Co.), 346 U.S. 464 (1953), the United States Supreme Court heldthat a vitriolic attack on the quality of the companys television broadcaststhrough handbills distributed on a picket line and in places of publicaccommodation, at a critical time in the initiation of the companys televisionservice, was unprotected under the NLRA. Accordingly, the company properlydischarged the employees who distributed the handbills.

The handbills at issue inJefferson Standardread as follows:


3/22



IS CHARLOTTE A SECOND-CLASS CITY?

You might think so from the kind of Television programs being presented by the Jefferson StandardBroadcasting Co. over WBTV. Have you seen one of their

television programs lately? Did you know that all the programs presented over WBTV are on film and may befrom one day to five years old. There are no local programspresented by WBTV. You cannot receive the local baseballgames, football games or other local events because WBTVdoes not have the proper equipment to make these pickups. .. . Why doesnt the Jefferson Standard Broadcasting Co. purchase the needed equipment to bring you the type ofprograms enjoyed by other leading American cities? Could it be that they consider Charlotte a second-class communityand only entitled to the pictures now being presented to

them?

WBT TECHNICIANS

The Court began its analysis by noting that [t]here is no more elementalcause for discharge of an employee than disloyalty to his employer and that the NLRA itself sought to strengthen, rather than to weaken, that cooperation,continuity of service and cordial contractual relation between employer andemployee that is born of loyalty to their common enterprise. The Court then foundthe subject communication unprotected because the handbills made no referenceto the union, to a labor controversy, or to collective bargaining; attacked policiesof the company which had no discernible relationship to [the labor] controversy;and contained a sharp, public, disparaging attack upon the quality of thecompanys product and its business policies, in a manner reasonably calculated toharm the companys reputation and reduce its income.

In Montefiore Hospital and Medical Center v. NLRB, 621 F.2d 510 (2d Cir.1980), the Court of Appeals for the Second Circuit held that doctors who picketed ahospital engaged in unprotected activity when they told the public and potentialpatients to take their business elsewhere by communicating the message that theycould not be taken care of there. The court noted that picketing and appealing topotential customers to take their business elsewhere in support of a legal strike isaccorded considerable protection by the labor laws. However, the employees werenot free to elicit that support by force, trickery, or guile, nor may they deliberatelyinflict on the employer economic harm unnecessary to the legitimate concertedactivities. The court found that the impression conveyed by the picketing doctorsin Montefiore was in reckless disregard of its truth or falsity. . . because some ofthe patients could in fact be treated there. . . . Accordingly,


4/22



the doctors went beyond the limits of fair persuasion when they attempted to turnpatients away not out of sympathy with the aims of the striking workers. . . but inthe belief that they could not obtain competent treatment at the hospital.

Concerted activity also loses its protection under the NLRA when

employees engage in malicious or obscene personal attacks directed at theemployer. For instance, in Caterpillar Tractor Company, 276NLRB 1323 (1985),two union stewards published a handwritten cartoon ridiculing one of theirsupervisors. The cartoon was described as follows:

The figures face has a porcine snout, long fangs, and pointed ears. The figures head is bulbous (perhapscrowned with a large afro). The figure has a grosslyobese trunk, clearly defined male genitals, and chicken likelegs and feet. The figure is urinating on a much smallerstick figure labeled common low life worker. The large

figure wears a tie on which is written, Im The Boss Thedistorted portion of the large figures trunk is LabeledFAT. MANAGEMENT BULGE. The large figure isemitting what are supposed to be five turds, separatelylabeled W-O-R-K-E-R. The figure is surrounded by thefollowing statements: Hello, Im Ray Kemper theRazorback. Oink. Im so fat because I dont do a goddamthing except carry a clipboard. And fuck with you lowerclass. Oink. Im on a five year plan. I might be a fat slob but Im mean! If you fuckers worked harder I could getfatter have more fun drinking and spending my profitshare! I need more production so that I can buy more foodto eat. Im hungry. Im mean, fat and hungry. If it was up tome Id fire the whole shop. Burp. You basterds (sic) talk toeach other and Im going to forcefully stop it. If I find outwho put this picture up of me Ill fire him. Oink. Fuck theworkers.

The NLRB found the cartoon to be unprotected and upheld the employerssuspension of the responsible employees. In so doing, the Board noted that it iswell-settled that an employees conduct loses its protection under the NLRAwhen it is malicious, defamatory, or insubordinate, or can be characterized asextraordinary, obnoxious, or wholly unjustified. Finding that the subject cartoonwas all of those things, the Board concluded that the employees obscene personalattacks did not have to be tolerated by the employer.

Latitude Granted to Employee and Union Communications

Despite the Supreme Courts holding inJefferson Standard, the Board hasaccorded a great deal of latitude to employees when determining whether theircommunications are protected under the


5/22



NLRA. For example, in Alaska Pulp Corp., 296 NLRB 1260 (1989), employees of aJapanese-owned company sent a letter to the editor of a local newspaper for the purpose ofeliciting community support for their strike. The letter stated:

Editor:

I would like to take this opportunity to clear up a question ofhonor. At the onset of negotiations, Local 962 officials. . . wereaccused of not honoring an agreement allegedly made betweenGeorge Ishiyama, representing A.P.C. . . . The honesty and integrityof [the union is] above reproach. As for the honesty and integrity ofAlaska Pulp Corp. and its managers, the following questions cometo mind.

1. Is it HONORABLE to maintain two sets of business records?2. Is it HONORABLE to conspire with another corporation toforce others into bankruptcy?

3. Is it HONORABLE to hire and relocate new employeesunder false pretenses?4. Is it HONORABLE to say to your employees, There ismore money, yet spend many times the amount they asked for toreplace them with new workers?5. Is it HONORABLE to tell your employees, you are ourmost valuable resource, then castthem aside when they ask for anequitable wage?6. Is itHONORABLE to promise to bargain in good faith, andfail to do so, time and time again?

A.P.C. is a company controlled by the Industrial Bank ofJapan and other Japanese companies which are in turn controlled bythe government of Japan. Are the answers to the above questionsindicative of the honor of the Japanese people? Is Japan beingmisrepresented by a few self-serving, greedy individuals? If y is theanswer to this last question, it is time for the record to be setstraight. Action must be taken by the people of Japan to right thewrongs that are being done in their name. If the answer is no then Isay to my beloved state of Alaska and the United States of America,Beware of Japan. Her offer of friendship is but a Trojan Horse thatonce taken in will open to plunder our vast resources, leaving only ahollow shell to be cast aside when no longer profitable.

Honor is the thing that is absolute. It is neither qualitativenor quantitative. You are either honorable or you are not. Youcannot cheat and still be honorable. You cannot tell lies and still behonorable. You cannot live and do business by a double-standardand still call yourself . . . honorable.


6/22



The NLRB held that the letter was protected even though it arguably wasoffensive to the companys Japanese owners. In so doing, the Board observed that[c]oncepts, which the word honorable encompasses, such as honesty, fairness,and integrity, are customarily called into play implicitly or explicitly, duringlabor-management relationships. Such rhetoric is understood to be part of strike

situations . . . . And in such matters the board permits a great deal of latitude.The Board also noted that there was no evidence showing that the accusationsmade in the employees letter were false.

The Board also has found that criticism of the quality of a companysservice or product may be protected under the NLRA if the communication isrelated to a labor dispute and is neither deliberately or maliciously false norflagrantly disloyal in tone. In Richboro Community Mental Health Hospital, 242NLRB 1267 (1979), for example, the Board found that an employee engaged in protected activity when he sent a letter to the employers funding sourcecriticizing the discharge of a fellow employee and stating this matter, in my

opinion, is representative of a course of events. . . carried out by theadministration of the Richboro Program, which has signified a decrease in thequantity and quality of service to clients. The Board distinguished this letterfrom unprotected communications where the attitude of the employees isflagrantly disloyal, wholly incommensurate with any grievance which they mayhave, and manifested by a public disparagement of the employers product orundermining of its reputation. According to the Board, there was nothing in thesubject letter to suggest that [the employees] intent was to sabotage orundermine [the employers] reputation. Its tone was neither malicious nor did itridicule [the employer].

Likewise, in Allied Aviation Service Co., 248 NLRB 229 (1980), theBoard found that letters sent by an employee to the companys airline customerswere protected communications under the NLRA even though they stated that thecompany was creating a safety hazard through its fueling procedures and that themajority of its maintenance was being performed by outside contractors. Theletters urged customers to express their concerns to management before atragedy occurs. The Board refused to find that the communications constitutedunprotected disparagement, noting that the safety issues were related to a labordispute and were raised in the letters without a malicious motive.3

As the above case law makes clear, employees have considerable latitudein criticizing their employer if their communications relate to a labor dispute. Inthe absence of a malicious motive, an employees


7/22



communication with a third party does not lose its protection merely because itraises highly sensitive issues, or because the employee is insensitive in his orher choice of forum.4 However, the following limitations can be gleaned from theabove cases: (1) The communication must have a discernible relationship to anongoing labor dispute with the employees employer; (2) the communication

cannot be malicious or motivated by a desire to harm the employer; (3) thecommunication cannot be false or made with reckless disregard of its truth orfalsity; and (4) the communication cannot be extraordinary, obnoxious,insubordinate, or wholly unjustified. Communications which exceed theselimitations lose the protection of the NLRA and subject the responsibleemployees to lawful discipline and discharge.

Disclosure of Confidential Information

Another union tactic employed in corporate campaigns is public disclosureof confidential company information in an attempt to embarrass or harass thecompany. For example, the union or its members may try to publicize the salaries,

bonuses, or stock options of management. Or, they may try to disclose how muchthe company has paid to attorneys or consultants to represent it in its laborrelations disputes.

The NLRB has held that employers lawfully may discipline or dischargeemployees for breaches of confidentiality even though the employees wereengaged in concerted activity or were acting in aid of the collective bargainingprocess. For example, in Bell Federal Savings & Loan Association, 214 NLRB75(1974), the Board upheld a one-week suspension of a switchboard operator whodisclosed at a union meeting the number of times the companys president hadtalked with the companys labor attorney. The Board concluded that theoperators conduct was unprotected even though the company had neverspecifically instructed her that her work was confidential. According to the Board,the company had the right to expect that an operator would not reveal informationabout telephone calls to another party.

In International Business Machine Corporation, 265 NLRB 638 (1982),the Board held that the company lawfully discharged an employee for disclosingconfidential wage information where the employee knew that the documents hereceived had been classified by the company as confidential and was aware of thecompanys rule prohibiting the disclosure of such material. Although the Boardnoted that an employer could not enforce an overly broad no-disclosure policyregarding wage information, it found that IBMs policy was not impermissibly broad. IBM did not prohibit employees from discussing


8/22



their own wages or attempting to determine what other employees are paid.However, the company chose not to inform employees what it paid others, orabout the reasons underlying its compensation decisions. In furtherance of thispolicy, the company treated the wage information it had compiled for its internaluse as confidential and required employees who had access to that information to

maintain its confidentiality.

The Board noted that the company had established substantial andlegitimate business justifications for its policy, including allowing managers broad discretion to reward superior performance through confidential,nonstandardized wage increases and inhibiting the disclosure of information thatcould help competitors steal the companys employees. Under thesecircumstances, the Board concluded, the companys legitimate interests inkeeping the wage information secret outweighed the employees interests inlearning and discussing that information.

In L.G. Williams Oil Co., Inc., 285 NLRB 418 (1987), the NLRBannounced the following test for determining whether an employees disclosure ofhis or her employers business information, for organizational purposes, isprotected under the NLRA:

If an employer treats information such as wages asconfidential, then the Board weighs the interests of theemployees in learning and discussing each others wagesagainst the employers legitimate interests in support of its policy. If, however, an employer does not treat theinformation as confidential, an employee who comes acrossthe information openly or in the regular course of her workmay use the information for self-organization with the protection of the Act. In contrast, where information issurreptitiously gained, or disclosure of the information is a breach of the employers trust or unrelated to a protectedinterest, the employees conduct is unprotected.

Accordingly, the following factors are relevant to an assessment ofwhether an employer lawfully may discipline or discharge an employee fordisclosing business information which assists a union during a corporatecampaign against the company: (1) whether the employer treats the information asconfidential; (2) the interests of employees in learning and discussing theinformation; (3) the interests of the employer in keeping such informationconfidential; (4) how the information was obtained by the employee; (5) whetherthe employees disclosure of the information is a breach of the employers trust;and (6) whether the information is related to a protected interest.

The employers ability to lawfully restrict the disclosure of internal


9/22



business information generally will depend on the existence of a policyidentifying the information as confidential and prohibiting its disclosure. Ofcourse, if the employer intends to rely on such a policy in disciplining ordischarging employees, it should communicate the policy to the employees.The employer also must be able to establish that its interest in keeping the

information confidential outweighs the employees interest in communicatingthe information among themselves and/or to third parties. And the timing ofthe employers establishment of the policy may become an issue. An employerthat implements and enforces a policy prohibiting the disclosure of confidentialinformation during a corporate campaign, when no policy existed previously,risks a charge that the policy was designed to interfere and coerce employeesin the exercise of their Section 7 rights.

Encouraging Consumer Boycotts

Another typical tactic in a union corporate campaign is to engage in aconsumer boycott in which the targeted companys customers and potential

customers are encouraged to boycott the companys products or services, andto use the products or services of its competitors.5 As noted above, it is wellestablished that an employee owes a duty of loyalty to his or her employer andthat an employer may discipline or discharge an employee for acts ofdisloyalty without violating the NLRA.6 As a general rule, an employee whosupports a boycott of his employers products or services violates his duty ofloyalty to the employer.7 However, the NLRB and the courts have held that anemployees conduct will be protected if his support of the boycott (1) is relatedto an ongoing labor dispute and (2) does not disparage the employers productsor services.

George A. Hormel & Co. v. NLRB, 962 F.2d 1061, 1064 (D.C. Cir.1992), is an illustrative case. In Hormel, the Court of Appeals for the Districtof Columbia Circuit reversed the Board and held that the employer did notviolate the NLRA by discharging an employee for participating in a parade andrally organized by a dissident faction of the union to promote a consumer boycott of the employers products. The employee drove his truck in theparade and attended the rally, but, unlike other individuals, did not carry a sign,wear a T-shirt or button, or speak at the rally. The court found that theemployees participation in the dissident-sponsored rally was not related to anongoing labor dispute, and was unprotected, because the rally was notauthorized by the union and the employer and union had settled their earlierlabor dispute. The court also concluded that the employees participation in the parade and rally constituted support of the boycott, even though


10/22



he did not wear buttons or speak in favor of it. According the court, anyreasonable observer would have inferred that the employee supported the boycott.

Discipline and Discharge as Responses to

Disloyal Acts by Employees

As outlined above, employees may be disciplined and discharged fordisloyal and disparaging communications about their employer or its managementwhen the communications are unrelated to an ongoing labor dispute; are madewith malice or in reckless disregard of their truth or falsity; or are extraordinary,obnoxious, insubordinate, or wholly unjustified as a means of support for theemployees legitimate concerted activities. An employer also has the right todiscipline or discharge employees for publishing its confidential wage and business information, provided that the employer has a policy prohibiting thedisclosure of such information; the employer communicates the policy to itsemployees; and the employers policy is justified by substantial businessconsiderations. Moreover, an employee who supports a boycott of his employers

products or services violates his duty of loyalty and may be disciplined ordischarged by the employer, if the boycott is unrelated to an ongoing labor disputeor disparages the employers products or services.

Defamatory Campaign TacticsWhen nonemployee union representatives make disparaging or defamatory

comments about an employer, its management, or its products or services duringthe course of a corporate campaign, the self-help remedy of discipline anddischarge is useless to the employer. However, the employer may find some protection in the common law tort of defamation. Although the United StatesSupreme Court has stated that the freewheeling use of abusive and scathingremarks in labor disputes is often the accepted price to be paid for open androbust debate on issues dividing labor and management, neither a union nor acompany is free to injure the other intentionally by circulating defamatory orinsulting material known to be false.8

The Supreme Court has ruled that state law defamation actions based onstatements made during a labor dispute are not preempted by federal labor law ifthe employer (1) can demonstrate that the statements were made with malice and(2) can show that it suffered actual damages as a result of the statements.9 Underthe standard set out in New York Times Co. v. Sullivan, 376 U.S. 254 (1964),malice is the publication of defamatory statements with knowledge of their


11/22


12/22



a statement with knowledge of its falsity, or in reckless disregard for the truth.The court reasoned that the federal interest in regulating area standards picketingwas outweighed by the states interest in protecting its citizens from defamatorystatements made with malice.

Thus, the common law tort of defamation may provide an employer withan effective response to defamatory statements made by a union during acorporate campaign, especially where the statements concern the employersmanagement, products, or services. If a union publishes false statements of factabout an employer during a corporate campaign, the employer may be able torecover damages if it can show (1) that the statements were made with malice,that is, with knowledge of their falsity, or with reckless disregard of whether theywere true or false, and (2) that it suffered actual harm as a result of the publicationof the statements.

Working-to-Rule

Working-to-rule or running the plant backwards is a union tactic thatgenerally involves the employees performing the absolute minimum workrequired by the employer in accordance with the express terms of the applicablecollective bargaining agreement. Its effect is to create a work slowdown, althoughthe union will deny that a slowdown or partial strike is being conducted. Typicaltactics include doing nothing without minute direction from management, denyingor evading personal responsibility on the job, wasting as much time as possiblewithout getting caught, taking no initiative to handle problems, and intentionallymeeting only the minimum production standards.

Examples of specific types of work-to-rule conduct include followingsupervisors instructions to the letter even when the employee knows that theinstructions are wrong or that the supervisor mistakenly has left out key steps;following work methods or instructions that have not been formally changed orabandoned by the employer, but which the employee knows to be obsolete;strictly following all work methods and instructions even though shortcuts existwhich the employees routinely followed before; reporting every minor equipmentmalfunction or every conceivable safety hazard, and insisting that it be remedied before work can proceed; refusing to operate equipment not covered by thecollective bargaining agreement; engaging in covert acts of sabotage, such asdestroying equipment, breaking tools, producing excessive scrap, and tamperingwith labels; refusing to work overtime; and engaging in zealous enforcement ofthe collective bargaining agreement through grievances and arbitration even if the


13/22



employees are not complaining. As one UAW spokesman put it during theCaterpillar dispute, the effect of doing everything by rule is chaos. . . . [W]ere going by the book, and that just takes longer.14

The Board has long held that partial or intermittent work stoppages or work

slowdowns are not protected activities under Section 7 of the NLRA. These activitiesare unprotected because the employees refuse to work on the employers terms,while remaining on their jobs, thereby depriving the employer of the opportunity toreplace them with employees who will accept the employers terms.15 Because theactivities are unprotected, an employer is free to discipline or discharge employeeswho engage in such activities.

Although the Board can be expected to clarify whether work-to-rulestrategies are protected under the NLRA, as unions increasingly use them in thecontext of corporate campaigns, current Board authority supports the view thatemployees do not have the protected right to slow down or otherwise impair an

employers production by working-to-rule. Recently, in Caterpillar, Inc., 1995NLRB LEXIS 473 (ALJ opinion) (May 18, 1995), an administrative law judge (ALJ)held that the employer did not unlawfully order an employee to refrain fromcommunicating with another employee about his production and work-to-rulepractices, and concluded that employees do not have a right to engage in a slowdownby engaging in work-to-rule tactics.

The ALJ noted that while employees may seek to change any term orcondition of employment by engaging in a work stoppage, their strike must becompletethat is, the employees must withhold all of their services from theemployer. In concluding that the Caterpillar employees work-to-rule tacticsconstituted an unprotected partial strike, the ALJ explained as follows:

[T]he Union sought to have its members impede production by limiting their effort and frustratingsupervisors. . . .I conclude that this tactic was meant todisrupt production by a partial withholding oftraditionally performed services and was thereforeunprotected. . . .The bargaining unit employees are notminimum wage beginners who must be told what to doat every step. They are long-term, skilled, highly paidfactory workers whose knowledge and initiative areexpected and are a quid pro quo for their wages. Whensuch isnot forthcoming, the employer is denied a fairdays work for adays pay. When this occurs, as is theaim and result of work-to-rule, then there is anunprotected partial strike.

The ALJ further noted, however, that whether particular acts in support of awork-to-rule strategy are protected under the NLRA depends on


14/22



what occurred and not on abstract principles. Thus not every act ofemployees within work-to-rule would necessarily be deemed unprotected,nor every response by [an employer] permissible.

Likewise, in Jeld-Wen Corp., 1992 NLRB GCM LEXIS 12

(February 4, 1992), the Division of Advice of the NLRBs Office of theGeneral Counsel (the Division) refused to issue a complaint alleging thatthe employer unlawfully threatened employees with discipline for engagingin work-to-rule tactics, including the concerted discontinuance ofshortcuts which had enhanced production and strict adherence to theemployers instructions. As a result of these tactics, which were designed to pressure the employer in contract negotiations, standard production ratesdropped substantially. In dismissing the unions charge, the Division notedthat the production shortcuts which the employees used before theslowdown were an integral part of the normal production process and theemployer expected that they would be used. By not using them, the

employees were setting their own terms of employment and engaging in anunprotected partial strike. However, the Division distinguished the requiredshortcuts at issue in Jeld-Wen from acts performed voluntarily byemployees. Where the action the employees refrain from engaging in iswithin the employees discretion, they cannot be said to be imposing theirown terms on the employer. Accordingly, such conductunlike that inJeld-Wenwould be protected concerted activity under the NLRA.

Secondary Boycott ActivitiesAnother popular corporate campaign tactic is to embroil neutral

employers in the labor dispute between the union and the targeted company.This may take the form of picketing neutral employers, such as customers,suppliers, or banks, that do business with the targeted company, or picketing neutral employers with which the targeted companys directorsare associated. The unions tactics also can include nonpicketing secondaryactivity, such as the use of handbills, bullhorn announcements, andnewspaper, radio, or television advertisements, to persuade the public not toconduct business with neutral employers that do business with the targetedcompany.

A union cannot lawfully picket a neutral employers place of business, either for the purpose of inducing its employees to engage in awork stoppage or to persuade the public not to patronize the employer. Suchconduct violates Section 8(b)(4) of the NLRA. Likewise, it is unlawful for aunion to picket the banks with which the targeted company does business orthe employers with which the targeted companys directors are associated.These types of picketing are classic


15/22



examples of unlawful secondary actions which are enjoinable under theNLRA.16

However, unions have greater freedom to use nonpicketingsecondaryactions as part of their corporate campaign strategies. InDeBartolo Corp. v.

Florida Gulf Coast Building. & Construction (DeBartolo II), 485 U.S. 568(1988), the United States Supreme Court substantially restricted the scope ofSection 8(b)(4)(ii)(B) of the NLRA17 by holding that it did not prohibithandbilling designed to encourage the public to cease patronizing a neutralemployer, where it was unaccompanied by violence, picketing, patrolling, orother intimidating conduct by the union. The Court construed Section8(b)(4)(ii)(B) in this fashion because a contrary conclusion would have raisedserious First Amendment concerns.

In Storer Communications v. National Association of BroadcastEmployees, 854 F.2d 144 (6th Cir. 1988), the union struck a television

station; began a letter-writing campaign asking businesses to withdraw theiradvertising from the station; and threatened that if the businesses did notwithdraw their advertising, the union would distribute handbills informingthe public of that fact. The union followed through with its threat andhandbilled in front of each of the advertising businesses. The televisionstation, in turn, brought a federal court action against the union seekingdamages for injuries allegedly sustained as a result of the unions assertedviolation of Section 8(b)(4)(ii)(B) of the NLRA.

In affirming the district courts dismissal of the action, the SixthCircuit Court of Appealsrelying on DeBartolo II held that the unionsactivity was not prohibited by Section 8(b)(4)(ii)(B) because it did notinvolve violence, picketing, or other coercive conduct. The employer arguedthat the unions letters, telephone calls, and visits to the neutral secondaryemployers constituted coercive conduct. However, the court rejected thisargument as inconsistent withDeBartolo II.

We view these activities as permissible underDeBartolobecause they merely constituted the unions peaceful warnings that it was about to exercise itsrights under 8(b)(4). Since the handbilling itself wasnot proscribed activity, peaceful warnings thathandbilling will occur are not unlawful.

In Service Employees Local 399 (Delta Airlines), 293 NLRB 602(1989), the employer contracted with a nonunion employer to clean itsadministrative offices at Los Angeles International Airport. The uniondistributed handbills at the airport and the employers downtown offices and placed an advertisement in a newspaper requesting that the


16/22



public not fly on the employers airline. Dismissing the employers Section8(b)(4)(ii)(B) charge, the NLRB held that DeBartolo II permits peacefulhandbilling and other non-picketing publicity urging a total boycott of neutralemployers. . . .

Similarly, in Service Employees International Union, Local No. 77(Empire Industrial Maintenance, Inc.), 1988 NLRB GCM LEXIS 128 (May 27,1988), the Division of Advice, relying onDeBartolo II, recommended dismissalof Section 8(b)(4)(ii)(B) charges arising from a justice for janitors campaignagainst the management company for a group of office buildings. The unionengaged in sporadic leafleting over a three-month period. During the campaign,approximately 30 demonstrators gathered near the entrance of one of the buildings, where they wore T-shirts bearing the justice for janitors logo,carried justice for janitors signs, distributed leaflets, chanted, rang cowbells,and used bullhorns. The Division concluded that all of this activity was lawfulbecause it was unaccompanied by picketing or patrolling, it also concluded that

the carrying of signs at one of the rallies did not constitute picketing where therewas no confrontation in some form between union members and employees,customers, or suppliers trying to enter the secondary neutral employerspremises.

However, the Board has found that a unions conduct constitutedunlawful picketing, rather than lawful handbilling, when the union attempted toblock ingress to a neutral employers premises. In Detroit Carpenters DistrictCouncil (Dean Management, Inc.), 1989 NLRB GCM LEXIS 9 (May 18, 1989),the Division of Advice concluded that two handbillers, stationed at separateentrances of a restaurant, engaged in unlawful picketing and not lawfulsecondary handbilling. One side of the handbills was red and had the wordHELP printed on it above the depiction of a STOP sign. The other side ofthe handbill advised the public that the construction at the restaurant was beingperformed by a contractor who paid substandard wages and benefits, and askedthe public not to patronize the restaurant until the labor dispute was resolved.When a car approached, the handbillier stopped in the middle of the entranceand held the handbill up at chin level or higher with the HELP STOPmessage visible to the oncoming driver. The driver was forced either to stop orswerve around the handbiller. If the car stopped, the handbiller would attempt tohand the driver a handbill. The Division concluded that such handbilling wastantamount to picketing because it include[d] non-speech elements which havea confrontational nature and would simulate the act of picketing. Likewise, inSan Francisco Building and Construction Trades Council (Goold Electric), 297 NLRB 1050 (1991), the Board held that the union


17/22



engaged in unprotected secondary picketing when its members carried poster-sizeplacards and patrolled the neutral employers building.

When faced with direct picketingof neutral secondary employers such ascustomers, suppliers, and banks, the employer should be able to enjoin the unlawful

secondary activity. Furthermore, even when a union engages in otherwise lawfulhandbilling or other forms ofnonpicketingsecondary activity, the employer may beable to enjoin the activity if it blocks access to the neutral employers premises or isconfrontational in nature.

Residential PicketingPicketing the residences of the targeted companys directors, officers, and

management is a popular union harassment tactic. However, several states prohibitresidential picketing by statute. Additionally, there may also be local ordinancesproscribing such conduct.18

Although the Supreme Court has struck down statutes outlawing residential picketing as violative of the First Amendment, it has held that narrowly tailoredand content-neutral residential picketing laws (that is, those which do notdistinguish between labor and nonlabor picketing) are not unconstitutional19

However, the Court also has held that statutes which completely forbiddemonstrations in residential areas, which are not directed at a particular residence,are unconstitutional. Accordingly, an employer generally will not be able to stop aunion from engaging in an orderly and peaceful demonstration in a location nearthe residences of the employers officers or directors, unless the union attempts toaim the demonstration at an individual residence.

It appears that statutes or ordinances prohibiting residential picketing arenot preempted by the NLRA. In San Diego Building Trades Council v. Garmon,359 U.S. 236 (1959), the Supreme Court held that a state court had no jurisdictionover controversies involving picketing or other activity which is arguably subjectto 7 or 8 of the [Act]. However, the Court excepted from this general rule stateregulation of conduct where the activity regulated [is]a merely peripheral concernof the Labor Management Relations Act . . . [o]r where the regulated conducttouche[s] interests . . . deeply rooted in local feeling and responsibility . . . .Subsequently, in Sears, Roebuck & Co. v. San Diego County District Council ofCarpenters, 436 U.S. 180 (1978), the Court ruled that a state court had jurisdictionto enjoin trespassory picketing, and held that state court jurisdiction of contro-versies involving conduct arguably protected by the NLRA was not


18/22



automatically preempted where (1) the controversy presented to the state courtwas different from that which could have been, but was not, presented to theNLRB, and (2) the party bringing the state court action could not obtain Boardreview as to whether the picketing or other activity was protected either becausethe union failed to file a charge with the Board or because the Board failed to

issue a complaint. The Court emphasized, however, that [t]he fact that [theemployer] demanded that the union discontinue the trespass before it initiated thetrespass action [was] critical to [its] holding.

Pre-Garmon case law also indicates that picketing of residences fallswithin the exception to the automatic preemption rule in controversies involvingarguably protected activity. In Allen-Bradley Local No. 1111 v. WisconsinEmployment Relations Board, 315 U.S. 740 (1942), the Court held that an order by the state labor board forbidding the union and its members from, inter alia, picketing employees homes was not void as being repugnant to the Act.Similarly, in UAW v. Wisconsin Employment Relations Board, 351 U.S. 266

(1956), the Court upheld a cease and desist order of the state labor board againstthe union and its members, prohibiting, inter alia, picketing of a domicile,notwithstanding that the employer was engaged in interstate commerce and thatthe NLRB might have issued a similar complaint.

Post-Garmon state court decisions also support the conclusion that statecourts have jurisdiction to enjoin union picketing of the residences of corporatedirectors or officers pursuant to state law. For instance, in K-TMarine v.DockBuilders Union 1456, 251N.J. Sup. 107, 597 A.2d 540, 138 L.R.R.M. 2781(N.J. App. 1991), the court held that the NLRA did not preempt it from enjoininga union from picketing the home of a construction companys president to informthe general public that the employer was not paying its employees at prevailingwage and benefit rates. Also, in Utility Workers Union, Local 349 v. JudgeMacelwane, 116 Ohio App. 183, 187 N.E.2d 901 (1961), the court concluded thatthe NLRA did not preempt an injunction of union picketing of the homes ofsupervisors performing bargaining unit work during a strike.

In summary, unless the Board assumes jurisdiction by issuing an unfairlabor practice complaint, a state court probably will have jurisdiction to enjoinresidential picketing pursuant to applicable state or local law. To ensure that anystate court action falls within the parameters set forth in Sears, Roebuck & Co.,the employer or individual whose home is being picketed should ask the picketsto stop before filing a state action to enjoin the picketing.


19/22


20/22



ConclusionCorporate campaign tactics have assumed prominence in organized labors

arsenal and are quickly replacing the strike as the weapon of choice to forceemployers to submit to labors demands. However, employers have opportunitiesto defend themselves from this onslaught through the use of self-help in the form

of discipline and discharge of employees who engage in unprotected conduct, andthrough the use of the NLRB and the courts to enjoin unlawful or tortiousconduct. While this column addresses only a few of the common corporatecampaign tactics, the key to winning any corporate campaign will be thoroughpreparation in order to quickly and effectively address any contingency.

Notes1. Herbert R. Northrup, Union Corporate Campaigns and Inside Games as a StrikeForm, 19Empl. Rel. L.J. 507 (Spring 1994).

2. Dougherty Lumber Co., 299 NLRB 295 (1990).

3. See also CorduraPublications, 280 NLRB 230, 231-32 (1986) (letter to employers parentcompany for assistance on a labor-related matter was protected even though employees stated in

the letter that the employers labor practices had resulted in limited, inaccurate. . . researchwhich imperiled the credibility and future of the product since nothing in the language of theletter was sufficiently opprobrious, defamatory, or malicious. . . to remove the employee from theprotection of the Act.).

4. Allied Aviation (cited on p. 124).

5. C.E. Fletcher, The Corporate CampaignLabors Ultimate Weapon or Suicide Bomb? 65N.C.L. Rev. 85 (1986).

6. Jefferson Standard(cited on p. 120) at 472.

7. Hormel(cited on p. 127).

8. See, e.g., Old Dominion Branch No. 496, Natl Assn of Letter Carriers v. Austin, 418 U.S.264 (1974);Linn v. Plant Guard Workers Local 114, 383 U.S. 53 (1966).

9. Austin (cited in note 8).

10. Garrison v.Louisiana, 379 U.S. 64, 74 (1964).

11. Austin (cited in note 8).

12. Linn (cited in note 8).

13. Texas Air Corp. and Eastern Air Lines, Inc. v. AirLine Pilots Assn Intl, et al., 1989 U.S.Dist. LEXIS 11149 (S.D. Fla. 1989).

14. Bloch and Moorman, Working to Rule and Other Alternative Job Actions, 9 The LaborLawyer169, 178 (1993).

15. Audubon Health Care Center, 268 NLRB 135 (1983).

16. Indeed, under 10(I) of the Act, the Boards Regional Directors are obligated to seek


21/22


22/22



an injunction when they have reasonable cause to believe that unlawful secondary picketing isoccurring.

17. Section 8(b)(4)(ii)(B) provides in relevant part that it is unlawful to threaten, coerce, orrestrain any person engaged in commerce or in an industry affecting commerce, where . . . anobject thereof is . . . forcing or requiring any person to cease doing business with any other person.. . .

18. For example, the following states prohibit residential picketing: Arizona (ARS 13-2909),Arkansas (Ark. Stat. Ann. 5-71-225), Hawaii (HRS 379A-1), and Illinois (720 ILCS 5/21.1-1).

19. Frisby v. Schultz, 487 U.S. 474 (1988).

(Jenero and Spognardi Defending Against the Corporate Campaign, Selected Legal Responses to Common...

Documents

Transcript of (Jenero and Spognardi Defending Against the Corporate Campaign, Selected Legal Responses to Common...