Section 32 Picket Line Clauses

• Library: Employer-Employee Law 2008

Unions routinely seek to include in contracts picket line clauses, which give employees the right to refuse to cross picket lines at other facilities. On their face, these clauses are equivalent to agreements not to do business and would appear to violate NLRA § 8(e), 29 U.S.C. § 158(e). But under the proviso to NLRA § 8(b) and by interpretation, these clauses are permissible if they allow employees to refuse to cross lawful, primary picket lines but impermissible if they are so broadly worded that they permit refusals to cross illegal, secondary picket lines.

In Metropolitan Edison Co., 279 N.L.R.B. 313 (1986), the NLRB reviewed two separate complaints, Case No. 4-CA-12309 and Case No. 4-CA-13068, pertaining to disciplinary measures taken against employees who refused to cross picket lines. In Case No. 4-CA-12309, the parties’ collective bargaining agreement contained a broad no-strike/no-lockout clause. Nevertheless, certain employees honored a lawful stranger informational picket line by refusing to cross the line. The employees were informed that they would be subject to disciplinary action, including suspension, if they did not return to work the following morning. The NLRB held that the employer’s threat of disciplinary action did not violate NLRA § 8(a)(1) because the broad no-strike clause effectively waived the employees’ right to honor stranger picket lines absent evidence that the parties actually intended to exclude sympathy strikes from the no-strike clause’s scope.

In Case No. 4-CA-13068...