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It's not the sort of problem that arises every day, but it isn't a rarity, either.
SECTION 7 of the National Labor Relations Act ("NLRA"), 29 U.S.C. §157, gives employees the right "to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection." Picketing and handbilling are two forms of concerted activity that have traditionally been used by employees and non-employee union representatives to forward union goals. On the other hand, Section 8 of the NLRA, 29 U.S.C. §158, prohibits or limits picketing and handbilling depending on:
* The union objectives;
* The message communicated by the picket signs or handbills;
* The targeted recipients of that message, as well as the time and place of the picketing or handbilling activity.
This article is intended to help the lawyer advising an employer that has been targeted by union activity to navigate the myriad rules and exceptions found in Section 8.
PICKETING * Although picketing is not specifically defined by the NLRA, case law tells us that it includes more activity than just the conventional idea of persons carrying picket signs and patrolling before a targeted employer's store or shop entrance. In fact, picketing may consist of "mass activity" without signs or even signs unaccompanied by persons, as long as there is some individual, posted by the labor organization, who confronts employees or customers as they approach a targeted employer's entrance, and who presses some purpose that advances the objectives of the union.
There are several types of picketing. Moreover, the type of picket an employer faces is determined by the particular objectives a union hopes to advance. In addition, different rules and different exceptions to those rules apply depending on the type of picket in question. The following is a discussion of the eight major types of picketing along with the rules and exceptions that apply to each.
1. Organizational Or Recognitional Picketing
The objective of organizational or recognitional picketing is either to force the employer to recognize or to bargain with a labor organization or to force employees to accept the labor organization as their collective bargaining representative. Section 8(b)(7), 29 U.S.C. §158(b)(7), forbids picketing for recognition or organization when the employer has lawfully recognized another...