The following article is an excerpt from the new book Strikes, Picketing and Inside Campaigns by Robert M. Schwartz.
The article pertains only to private-sector workers covered by the National Labor Relations Act (NLRA). This information is the most up-to-date available, but because labor law changes frequently, unions should consult legal counsel in case a rule described below is eliminated or changed.
As the last minutes of a contract tick down with no agreement in sight, the union must consider its options. One is to strike. Another is to run an inside campaign, either while extending the contract or by working day-to-day without a contract.
Inside campaigns have several things to recommend them. For one, activities such as handbills, rallies, off-duty picketing, and work-to-rule may force the employer to settle a contract. For another, the employer may respond to such activities by violating the NLRA. Such violations may give the union an opportunity to call an unfair labor practice (ULP) strike, in which employees are protected against permanent replacement.
An inside campaign may also provoke the employer into a lockout. It might sound illogical, but if you are going to hit the bricks anyhow, a lockout has advantages over a strike. Some states pay unemployment insurance to locked out workers and the employer will be barred from hiring permanent replacements.
PITFALLS OF WORKING WITHOUT A CONTRACT
Union security and dues checkoff. Union-security obligations—the duty to join the union within 30 or 60 days of hire—are unenforceable in the absence of an executed contract. Also, unless language in the expired agreement provides for the procedure to continue indefinitely, the employer can choose to stop making dues deductions.
Arbitration. With a few exceptions, the arbitration duty generally disappears during the without-a-contract period. For grievances over new matters, including discharges, the employer’s only duty is to discuss the matter with the union and to supply information.
DEATH BY 1,000 CUTS
The most successful inside campaigns employ a constellation of activities to increase tension and disrupt the employer. As explained by one organizer: “The key is that you create a situation so that management, from the time they get up in the morning till the time they go to bed, they worry about what you’re doing. And if you’re doing a good job, they wake up with nightmares.”
This section discusses tactics whose legality has been litigated at the NLRB.
Note: Two inside campaign pitfalls are partial and intermittent strikes. A partial strike occurs when workers slow production or refuse to perform expected tasks. An intermittent strike is a series of work stoppages intended to harass the employer into a state of confusion. Labor law does not protect partial or intermittent strikes—even if the contract had expired. The employer may fire employees who take part.
Handbills. Handbills and newsletters build unity and rankle management. Handbills can express strong opinions, including accusations of mismanagement and strong-arm tactics.
Unless it disrupts operations, an employer must allow handbilling before and after work and during breaks on outside areas such as parking lots, walkways, and steps. The employer must also permit handbilling in inside non-work or mixed-use areas such as cafeterias and smoking rooms.
At or away from the workplace, workers can handbill customers, the public, and other employees with appeals for support. If the union handbills at the location of another employer, it must avoid picketing or calls for a sympathy strike. It can display a stationary banner.
Rallies. A union can hold contract campaign rallies and informational meetings before work, after work, and during break times. Unless the event interferes with operations or causes disciplinary problems, the employer must permit employees to gather on parking lots and outside walkways.
Insignia. Employees can wear contract campaign insignia on hats, t-shirts, etc. Possible slogans: “No contract, no peace,” “Fight for a fair contract,” “Up your final offer.” Cars may display signs in company parking lots.
Off-duty picketing. One of the most dramatic campaign tactics is off-duty picketing. (If an extended contract forbids picketing, this tactic will have to await expiration.)
Employees have a protected right to picket before and after their shifts and during breaks—even if operations are in progress. Picket signs should refer to the labor dispute.
Although it is not widely known, off-duty pickets have the right to ask customers, contractors, and delivery workers not to cross their picket line. Union drivers whose contracts permit them to respect “primary” picket lines can honor requests.
Off-duty picketing is guaranteed to set management’s hair on fire, especially if outside personnel honor the line. Nonetheless, if done carefully, the employer cannot discipline workers for disloyalty, force employees to choose between picketing and working, lay off the individuals involved, or hire replacements.
Work-to-rule. In work-to-rule activity, employees scrupulously follow every order, policy, procedure, or standard issued by management for the performance of their jobs, especially safety and hygiene directives. No one works outside his or her job description, or at more than normal speed. Everyone takes full breaks, and no one volunteers for extra work.
Employees should not expect NLRA protection if they deliberately reduce their output, refuse assigned duties, stop taking expected shortcuts, or refuse direct orders from management.
Customer boycott. To support an inside campaign, employees can urge customers or clients to withhold purchases of the employer’s products or services. Unions with boycott restrictions in their bargaining agreements must wait for contract expiration.
To ward off charges of disloyalty, handbills and other union literature should refer to the labor dispute and should avoid attacking the quality of the employer’s products and services.
Long before your contract expires, you should consider your options and prepare to make your campaign as effective as possible by having strategies in place that can be activated quickly if the employer doesn’t comply with demands. Communication, organization, and determination make all the difference in lasting one day longer than the boss, whether the fight is on the picket line or inside the shop.
Robert Schwartz is a labor attorney in Boston. He can be reached at robertmschwartz [at] comcast.net