Section 31 Work-Preservation Objective

• Library: Employer-Employee Law 2008

Illegal NLRA § 8(e), 29 U.S.C. § 158(e), agreements most often involve clauses that limit subcontracting, require employers to refuse to handle nonunion or struck products, or allow employees to refuse to cross picket lines. The common theme in all these situations is that a union seeks provisions that preserve work for employees who work for the signatory employer. A union may not seek such clauses for the purpose of satisfying union objectives unrelated to the benefit of the primary’s employees. In National Woodwork Manufacturers Ass’n v. NLRB, 386 U.S. 612, 644 (1967), the Supreme Court described the test: “[W]hether, under all the surrounding circumstances, the Union’s objective was preservation of work for [the employer’s] employees, or whether the agreements and boycott were tactically calculated to satisfy union objectives elsewhere.”

Clauses restricting subcontracting to firms signatory to union contracts are unlawful because they are not directed at preserving unit work as much as at furthering the broader union goal of encouraging employees outside the bargaining unit to become union members.

Also unlawful are provisions that would permit employees to refuse to handle nonunion or struck products. Such provisions have no work-preservation objective; instead, they seek to promote organization outside the bargaining unit or to lend support to labor disputes not involving the contracting parties.

In NLRB v. International Longshoremen’s Ass’n, AFL-CIO,
473 U.S. 61 (1985), the Supreme Court expanded the breadth of work preservation agreements. Specifically, the Court held that the Longshoremen’s “Rules on Containers,” restricting the use of companies who load shipping containers away from loading docks, was a lawful work preservation agreement even though the longshoremen had never performed the specific work at issue. The Court found that, because technological innovations had rendered the longshoremen’s work unnecessary, the longshoremen could lawfully attempt to preclude the use of the containers that had displaced the union employees’ traditional work.

Under this approach, a lawful work preservation agreement must pass two tests:

1. It must have as its objective the preservation of work traditionally performed by employees represented by the union

2. The...