Recognition Picketing Under the NLRA
The National Labor Relations Act broadly protects strikes (work stoppages) intended to coerce an employer to recognize a union designated by a majority of the employer’s workers to be their bargaining representative, or to agree on the terms of a first contract. However, picketing (demonstrating with signage to publicize a labor dispute) that has a recognition objective, is regulated. A failure to follow the rules can have adverse consequences, including the employer’s resort to self-help by firing the picketing employees. A federal court may also enjoin the picketing. Fortunately, there are fairly simple ways to avoid such results.
Filing a Petition Within Thirty Days
First, the union could file a request for an election with the National Labor Relations Board within a month of initiating the picketing, because the NLRA allows recognition picketing “within a reasonable period of time not to exceed thirty days from the commencement of such picketing.” (This assumes, of course, that the union already has majority support.) A union can have mixed objectives, including protesting the employer’s unfair labor practices or publicizing that the employer engages its workers at wages and under conditions deemed substandard. But, if any one of the goals is recognition of the union’s status as bargaining agent, a violation may be found if the picketing lasts more than thirty days without a petition being filed with the Board.
Exceptions to the Thirty-Day Rule
One caveat—the Board may deem less than thirty days a reasonable period of time if the picketing is accompanied by serious misconduct, such as violence or vandalism. Also, intermittent recognition picketing that is spread out over more than thirty days may be found to be unreasonable in the absence of an actual petition for recognition.
Using Informational Picketing as an Alternative
If the union needs additional time to prepare for an election, it may engage in informational picketing under a proviso in the NLRA. Unions and workers are protected when their picketing is “truthfully advising the public that an employer does not employ members of, or have a contract with, a labor organization, unless an effect of such picketing to induce any individual employed by any other person in the course of his employment, not to pick up, deliver or transport any goods or not to perform any services.” So long as the picket signs 1) mirror the statutory language by stating that the employer does not employ members of, or have a contract with, the union; and 2) do not induce anybody to refuse to make or receive deliveries or show up for work, the picketing can continue indefinitely regardless of its recognition or any other objective.
Final Considerations
Picketing can be a useful tool short of a strike for getting union recognition if it is done within the statutory guidelines. But, applying these guidelines to the multitude of circumstances that can arise during a recognition campaign may require nuanced analysis. Unions undertaking such a campaign are well advised to consult with experienced counsel.