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NLRB Allows Unions to Penalize Companies for Pursuing Their Legal Rights in Federal Court

Volume 1, Issue 4
Winter 2001

Dealing a sharp blow to employers' legal rights, the National Labor Relations Board ("NLRB") narrowed its interpretation of what constitutes unlawful "secondary activity", and ruled that unions can picket and leaflet a neutral "secondary" employer in an effort to have the secondary employer stop doing business with another targeted employer, if an object of such actions is to enforce the NLRB's certification of a union as the collective-bargaining representative the targeted employer. The National Labor Relations Act protects employers from most forms of "secondary activity", i.e. activities designed to affect a targeted company by applying economic or social pressure against other companies that deal the target company. The goal of secondary activity is to have the other companies, who are often customers or suppliers of the targeted company, pressure the targeted company to give in to the union's demands.

In United Food and Commercial Workers Local No. 1996, the union both threatened to picket and actually picketed the United Way of Metropolitan Atlanta in an effort to have the United Way stop its support of a targeted employer, Visiting Nurse Health System, Inc. (VNHS), which provides charitable home health care services to indigents. VNHS had refused to recognize the union after an NLRB election in order to challenge the election in the federal courts. Because an object of the union's actions was to "enforce" the NLRB's certification of its collective-bargaining representative status at VNHS, the Board ruled that no unlawful secondary activity existed. As a result of this decision, unions can lawfully and effectively penalize companies for pursuing their legal rights in federal court and subject other unrelated companies to picketing or even strikes in an effort to get them to stop doing business with the targeted company if the union is seeking to enforce an NLRB certification.

United Food and Commercial Workers, Local No. 1996 and Visiting Nurse Health System, Inc. Case 10-CC-1335, ___ NLRB No. ___ (September 28, 2001).

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