Reference no: EM131281117

[From January 5 to January 14, 1988, Laborers' International Union of North America, Local No. 1184 (the union) picketed the construction site where NVE Constructors, Inc. (NVE) was a general contractor on a state prison project. At the gate reserved for NVE employees, the union displayed picket signs that stated: "NVE, No Contracts. Laborers' Local 1184, AFL-CIO." As a result of the picketing, NVE did not receive deliveries of concrete scheduled for January 5-7, 1988. At the time of the picketing, NVE was not a party to a collective bargaining agreement with the union. There were 20 NVE employees at the jobsite, but those employees had not designated the union as their bargaining representative.

According to the union's business agent, the purpose of the picketing was "to obtain a contract either by authorization from the people through authorization cards or the contractor or contractors signing a prehire agreement voluntarily." The picketing stopped on January 13, 1988, after NVE filed an unfair labor practice charge alleging a violation of Section 8(b)(7)(C) of the Act. The Board dismissed the complaint, concluding that "at least with respect to any employer, which has employees, we do not believe that recognitional and organizational picketing by a minority union in the construction industry is prohibited by Section 8(b)(7)(C) of the Act if the picketing meets the time limitations set forth in that section."

NVE petitioned for review.] BEEZER, C. J.... Section 8(b)(7) of the Act makes it an unfair labor practice for a union to picket to force an employer to recognize or bargain with it if the employer has already recognized another union or if there has been a representation election within the preceding 12 months. If neither of these situations exist, such picketing may be conducted for "a reasonable period not to exceed 30 days from the commencement of such picketing to gain recognition." The union may not picket beyond this time without filing a petition for a representation election. Id. The purpose of section 8(b)(7) is "to ensure that employees [are] free to make an uncoerced choice of bargaining agent."

This was accomplished in section 8(b)(7)(C) by encouraging "prompt resort to the Board's election machinery, rather than protracted picketing, as the method for resolving questions concerning representation." Section 8(f) of the Act provides that it is not an unfair practice for unions and employers in the construction industry to enter into collective bargaining agreements even though the employees of that employer have not designated the union as their lawful bargaining representative.

These agreements are known as "prehire agreements." ... [A]t the same time it enacted section 8(f), Congress included a provision protecting employers from being pressured to enter into agreements with minority unions. If the picketed employer doubts that the union enjoys the support of a majority of its employees, the employer may file an election petition. See NLRA § 8(b)(7)(C). When an election petition is filed in a situation in which a noncertified union is picketing, the Board must direct an expedited representation election, without first investigating the petition to determine whether a question of representation exists. See id. §§ 8(b)(7)(C), 9(c). If the election demonstrates that a majority of the employees do not support the union, section 8(b)(7)(B) bars the union from picketing for twelve months.

NVE argues that the effect of the Board's decision is to legalize the "very top-down organizing weapon Congress condemned in enacting" section 8(b)(7)(C).... ... In the case of section 8(f), Congress acted to limit the potential top-down effects of allowing prehire agreements by allowing employees to invalidate a prehire agreement by petitioning for a representation or decertification election at any time during the period covered by the agreement. 29 U.S.C. § 158(f) (1988). The Board's interpretation of sections 8(b)(7)(C) and 8(f) is "rational and consistent with the Act." ... Section 8(b)(7)(C) is intended "to encourage prompt resort to the Board's election machinery, rather than protracted picketing, as the method for resolving questions concerning representation." ... More serious interference with work has not persuaded the Board to shorten the [30-day] period.

In Walters Foundation, 203 NLRB 397, for example, the Board did not find unreasonable a 22-day period of picketing, and in Colson & Stevens Constr. Co., 137 NLRB 1650, the Board found the period of picketing not to be unreasonable where suppliers refused to cross the picket lines for 29 days. Furthermore, nothing in the present case prevented NVE from filing for an expedited election and resolving quickly the issue of the union's majority support. The Board's determination that the picketing did not exceed a reasonable period of time is thus reasonable and supported by the record. The petition for review of the Board's order is DENIED.

Case Questions

1. How are employers protected under the Act from being pressured to enter prehire agreements with minority unions?

2. How are employees protected from the effects of a prehire agreement in which a minority union is allowed to reach an agreement with the employer?