What if Wednesdays: Strikes

Tis the seasons for strikes.  As the weather gets warmer, it’s a lot easier for unions to convince their members to go out on strike.  Here’s some of the nuts and bolts about strikes with the caveat that all strikes must be handled differently and there is perhaps no other place in labor law where legal counsel must be sought in order to safely navigate your company through the land mine of NLRB laws regarding strikes.

Most collective bargaining agreements today have a no-strike clause in them, meaning that during the term of the agreement employees are not allowed to go out on strike.  But some companies still opt for their employees to go out on strike if they so choose, and thus, those contracts do not have a no-strike clause in them.  The majority of the time employees go out on strike is after their collective bargaining agreement expires and the Union and Company are negotiating the terms of a new contract.

In order for a union to take employees out on strike, the Union must get a strike vote with the majority of the employees (that show up to vote) voting in favor of a strike.  This vote is then typically good for one year.  Getting strike approval is not hard.  Since strikes are largely over bargaining issues, Unions employ two ways to get the vote.  First, as a prerequisite to bargaining the Union takes a strike vote “just in case” it’s needed during negotiations.  This is a tactic of most UAW Locals.  Secondly, after a couple of bargaining sessions, the Union tells it membership that the Company isn’t taking them seriously and so the employees may need to strike to get management’s attention.  The Teamsters frequently use this approach.

So when the day comes to go out on strike – whether shortly after the vote or up to a year later – the employees either don’t show up for work or they decide at a certain time to walk out en masse.  When this happens a plethora of legal rights are bestowed upon the strikers, and employers can easily get themselves into trouble.  What an employer can do all depends on whether the strikers are economic strikers or unfair labor practice strikers.  Both types of strikers carry with them different do’s and don’ts for employers and that goes way beyond this blog post.  However, no matter what type of striker they are, attorneys need to be contacted to advise whether or not an injunction is necessary limiting the number of strikers, location of the pickets, etc.

Striking employees always seeks unemployment from the State and depending on which state you’re in, unemployment is either routinely granted or denied.  Those employees also receive picket-line pay, typically around $200/week for walking the line X number of hours.  If employees want to cross the picket line and return to work (oftentimes the Union makes them resign from the Union first), management must accept them back.  This is always a sticky spot because management has to allow them back, but sometimes the employees cross the picket line only to gain intelligence about what’s going on on the inside or to sabotage production. 

I cannot stress enough how important it is to have proper strike planning in place.  Although unionized employees are usually the ones who go out on strike, any employee anywhere has the right to strike any employer.  When this happens, whether union or not, management needs to know how they are going to react.  Who is management going to call?  Which management personnel is going to run which machine?  How is the Company going to honor all of its contracts?  What is the Company going to do if employees purposely covertly damage machines on their way out the door?  How will a picket line, handbilling, fliers, billboard, newspaper ads, etc. affect the Company’s production?  How will it affect the Company’s bottom line.  All of these (and more) are questions that must be dealt with before you’re in the situation of looking out your window and seeing picketers lining your sidewalk.

Here’s a list of some recent strikes that I’m following:

And for reading this far, you deserve to read this article: “He was a Scab, So I Hit Him . . . and I’d Do the Same Today

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Union Inflatable Rats

A union’s inflatable rat is an often used propaganda piece meant to intimidate non-union companies and drive non-union companies into either agree to sign a union contract or go out of business because of negative publicity.  Here’s a picture of the rat I’m talking about:

Unfortunately, there’s not a lot you can do if this creature shows up at your workplace.  Historically, rats were used exclusively in the construction arena to let everyone know that non-union labor was on the job site.  The National Labor Relations Board has routinely held that rats are a permissive way of signal picketing, meaning when the rat shows up, union workers walk off the job site.  Frequently, the rats are put in parking spaces on the road and a couple of union workers feed the meter all day.  For a picture of what that looks like, click here.

The best thing for a company owner to do is to make a joke out of the rat.  Like with any other type of bully, if they’re not getting a reaction from what they’re bullying, they’ll move on.  Don’t bother calling the police – they won’t get involved unless you are successful in getting an injunction, which is pretty much impossible to do.  I have heard the argument that on a very windy day, the rat could become a safety hazard, akin to an untethered Macy’s Parade Balloon.

The rat just won another round of litigation, this time in New Jersey where NJ Supreme Court ruled that the rat is a constitutionally protected form of free speech.  In that case, the rat showed up at a health club’s grand opening because the club did not employ unionized workers to build the club.

Ironically, union rats are made by a non-union company!  Big Sky Balloon and Searchlights in Chicago makes a few different types of rats, a “greedy pig,” “cockroach,” “skunk,” and a “corporate fat cat” strangling a construction worker.  Click here to look at those balloons.

What If Wednesday: Handbilling

The ancient art of handbilling is the topic of today’s What If Wednesday.

Handbilling – or the practice of handing out fliers to unsuspecting employees an passersby – really is ancient.  In fact, prior to the Revolutionary War, our patriot forefathers handbilled against the English in an effort to entice the masses against English tyranny.  Fast forward a couple hundred years, and unions still use this arcane way of soliciting support from company workers and the public by standing outside of a workplace and handing out disparaging comments to employees about their employer and supervisors.  Handbilling is not picketing.  I’ll discuss a company’s rights against picketing next week.  But for today, what if handbilling is occurring outside your company?

A company’s rights against handbilling depends largely on who owns the property.  Shopping centers are frequently the easiest targets of handbilling and there is constant litigation over the tenants’ rights versus the union’s rights.  Oddly, laws in this area are all over the place and vary from state to state.

For companies that either own or rent stand alone buildings, those companies typically have private property rights and can expel the handbillers under threat of trespass.  Like last week’s discussion about calling the police if a union business agent refused to leave your office, feel free to call the police here, too, if the handbillers refuse to leave your property.  But calling the police should not be the first thing you do.

Some states require certain notices to the handbillers that they are in fact trespassing.  You just can’t sue them for trespassing if they haven’t been warned.  Calling the police, could solve this “notice” requirement, but I recommend calling your labor attorney since he or she will know whether the handbillers need notice or if an injunction limiting their presence should be the first step to counter the union’s attack.

Handbillers can lawfully be required to back away from your building and off of your parking lot, but are typically granted a 10-15 foot area at the edge of your property so they’re not standing in the street.  If you’re in an office park, or somewhere that doesn’t have much vehicular traffic, you can move them a little further than if you’re located on a heavy highway.  However, at all times the union must be able to “effectively communicate their message,” which means, you can’t tuck them into a corner where none of your employees travel and no one can see them.  Afterall, handbilling is a form of free speech.

I know it doesn’t seem like you have many options to defend against handbilling, and unfortunately, you don’t.  Your one saving grace is that employees hate being harassed by people when they’re leaving work and usually avoid the handbillers, anyway.  The few union supporters inside your company will be causing a scene in support of the handbillers and making sure that everyone gets a flier.  But other than them, you’ll be surprised at the lack of interest employees give to handbiller.  The more effective way for unions to reach your employees is through salting where a paid union operative secures a job on your workforce and organizes your employees from the inside.  We’ll discuss salting at in a later What if Wednesday post.

Here’s the disclaimer that I’m required to include:  Nothing in this blog post creates an attorney-client relationship nor should it be considered legal advice.