Should You Send Out Temps During A Strike?

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We get the question all the time: Should I send out temps during a strike?

PrintWe often answer “Yes.” When undergoing a work stoppage, a client pays very well, and accepts as many people as you can provide.

But we don’t always answer yes. That’s because you should know the answers to these eight questions before your contractors (independently employed) or temporary employees leap over the line. We’ll call them all “temps,” since there’s no difference in the analysis.

1. Can Our Temps Be Denied Entry?

No. But they can be approached.

Under Section 8(b)(4) of the federal Labor Management Relations Act (29 USC 141, et seq.) the right to send workers across a picket line exists. However, 8(b)(4) is so ambiguous that the U.S. Supreme Court has held the overall intent of the section should apply rather than the words themselves.

Subsection B of 8(b)(4) is called the “secondary boycott” (or “secondary activity”) provision. It prevents a union from forcing a person (like you or a temp) not to deal with an employer because there’s a labor dispute.

You can see that Subsection b could literally prevent any picketing — even “primary picketing” by union employees. That’s because the picket line is honored by union employees of other businesses (making deliveries, picking up merchandise, providing services on the premises, etc.).

The Supreme Court case interpreting Subsection b is NLRB v. International Rice Milling Co. (341 US 665, 28 LRRM 2105). It was decided in 1951 and resulted in a number of amendments to 8 (b)(4).

In that case, a truck drove up to Rice Milling’s plant and was approached by picketers. They asked the driver not to cross the line. Technically, the request violated Subsection b, since employees are prohibited from “[F]orcing or requiring any person to cease doing business with any other person.”

However, the Supremes rewrote the law here, reasoning that the LMRA was intended to preserve the traditional union right to picket. Peacefully encouraging others not to cross the line was deemed to be a part of that right.

2. Will The Union Picket Our Office?

If the union had initiated a “secondary picket” at the Rice Milling vendor’s place of business, it would be violating the LMRA. As you are considered a “neutral employer,” the law says you:

  • Can provide temps to the client.
  • May be subjecting the temps to “requests” not to work as they cross the picket line.
  • Are protected from picketing at your office.

3. Can Our Temps Work Next To Union Employees?

Yes.

The Supreme Court also ruled on this “common situs picketing” in 1951, when it decided NLRB v. Denver Building and Construction Trades Council (341 US 675, 28 LRRM 2108).

That was a case where employees in one union were striking while those in another weren’t. As with temps, the employees worked for subcontractors (not the primary employer involved in the dispute).

You can see the union’s dilemma — it wanted to peacefully pressure the employer as much as it could. It also argued that since the employees were working together, the strike should affect all of them.

In their decision, the Supremes rejected those arguments. They emphasized that shutting down the entire operation was a “secondary object,” not just a “secondary effect.” Distinguishing Rice Milling, they stated it was a “secondary effect” of a “primary object.” They reasoned that a secondary object (like striking the employer and visiting your office) doesn’t have to be the only object — just part of the plan.

If so, it’s illegal.

4. Can The Client Designate A Separate Entrance For Our Temps?

Absolutely, and should.

Cite Denver Building Trades to the client along with (310) 559-6000. We’ll answer the phone “National Placement Law Center” at no charge. Then one of our associates will point out that the union can picket the primary entrance (for the client’s direct employees) as much as it likes. However by picketing the secondary entrance where temps arrive, it is encouraging your employees to quit working for you. That interferes with your protected status as a “neutral employer.”

You shouldn’t encourage the client to play games with the main entrance, though. Some try to use Denver Building Trades as an excuse to establish an employee entrance where the pickets can’t be seen. Clearly this defeats the union’s right to lawfully publicize the dispute.

5. Can The Union Publicize That We Are Furnishing “Strikebreakers” Or “Scabs”?

Yes to “consumers,” no to your temps. I’m not sure how you monitor this, but that’s the law.

You can’t be named on the picket sign unless you’re considered an “ally” (Sailor’s Union of the Pacific v. Moore Dry Dock, 92 NLRD 93, 27 LRRM ll@8). We’ll discuss this further in Item 7.

But what about handbills and other publicity?

Here’s the wording that applies [8(b)(4) D)]:

[N]othing [herein] shall be construed to prohibit publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and members of a labor organization, that a product or products are produced by an employer with whom the labor organization has a primary dispute… as long as such publicity does not have an effect of inducing any individual employed by any person other than the primary employer in the course of his employment.. ” not to perform any service at the establishment of the employer…

According to Bruce Feldacker in Labor Guide to Labor Law

Although the proviso expressly refers only to “products” produced by the primary employer, the [NLRB] has held that the proviso should not be applied literally, and broadly applies to the performance of services as well as to the processing or distribution of physical products…

A handbill may request consumers to stop all dealings with the secondary employer, not   just refuse to buy the struck employer’s product. The union can request a total boycott as long as the secondary employer continues to deal with the primary one.

Handbilling is a legal secondary boycott.

So the handbills can be “distributed” to your other clients (if they can be found). Not a major concern, since they’re not likely to care anyway.

Of course the contents of any handbills must be factually accurate, and clearly state where opinions are being expressed. Your basic “truth in advertising” idea.

6. Can Union Representatives Visit Our Office?

Yes.

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Section 8(b) 4)(i) prohibits a union from inducing or encouraging employees to cease work for a secondary employer. Section 8(b)(4)(ii) prohibits it from threatening, coercing or restraining any other person to cause cessation of work for the secondary employer. However, nothing prevents the union from requesting your support.

It can even threaten you with handbilling, since it’s lawful.

7. Can We Be Considered Conspiring With The Client?

Yes. You may be deemed an “ally.”

Under the “ally doctrine,” the key is whether you are continuing to service the same client or actually replacing its striking workers. If the latter, you lose that protected “secondary employer” status, and are considered a primary one.

A temp service is particularly vulnerable here, since:

  • Temps are usually provided on an emergency basis.
  • The work may well be routine, not overflow.
  • You know that a strike is threatened or in progress when you dispatch the temps. (This is implied even if you don’t have “actual notice.”)

Under Moore Dry Dock (see Item 5), even picketing of your office may be allowed.

There are no NLRB cases applying the ally doctrine to temp services. However, the National Labor Relations Board regularly applies it to suppliers of parts to a struck company that manufactured them in-house.

The issues relate to when the vendor-purchaser relationship developed, whether there was a large increase in deliveries, etc.

You’ll have to decide whether:

  • You have “secondary employer” protection, and
  • Whether you’re willing to risk direct union contact with your temps (and other collective bargaining tactics) if you don’t.

8. What Rights Do We Have Against The Union?

You can file a charge with the NLRB by contacting its local office. The regional director is required to give 8(b)(4) cases priority.

The director will take your affidavit, mail or fax it to the union, and seek an injunction if he finds “reasonable cause” to do so. You should be so lucky — the volume and inflated markup on the temps is unlikely to result in much action by the Board. The director will figure you’re being paid well to hassle with the union.

So don’t wait to help yourself. Your lawyer can simultaneously file a civil lawsuit against the union under LMRA Section 383. Unfortunately, you can’t seek an injunction to stop the conduct, only damages for the injury that occurred.

These are called “concurrent remedies” — injunction by the director, damages (money) by you.

There’s another reason not to file with the Board — it’s called collateral estoppel: If the director finds no 8(b)(4) violation (and it probably won’t), you’ll be foreclosed (“estopped” or “stopped”) from requesting a separate determination by the state court.

Have your lawyer call the director before filing. Some unions will simply stop the activity upon his request, rather than risk bugging you or your temps further.

Should you send temps out during a strike? Consider these 8 items after the 8 answers I just gave:

  1. Whether their work is direct (industrial) or indirect (office).
  2. Whether you serviced the client on a continuous basis before.
  3. Whether the union is threatening to strike or actually doing so.
  4. Whether union jobs are being done by the temps.
  5. Whether the union organized all employees doing the jobs being done by the temps.
  6. Whether the union represents more than half the workforce.
  7. Whether your temps or staffers are in danger.
  8. Whether you believe the risks of bad publicity, business interruption, and legal expense are offset by the markup, volume and potential.

Finally, ask the client whether it will agree to indemnify (protect) you against any business losses or personal injury as a result of furnishing temps. Many are doing so these days.

For you, that’s the real question!

 

 

More than thirty-five years ago, Jeffrey G. Allen, J.D., C.P.C. turned a decade of recruiting and human resources management into the legal specialty of placement law. Since 1975, Jeff has collected more placement fees, litigated more trade secrets cases, and assisted more placement practitioners than anyone else. From individuals to multinational corporations in every phase of staffing, his name is synonymous with competent legal representation. Jeff holds four certifications in placement and is the author of 24 popular books in the career field, including bestsellers How to Turn an Interview into a Job, The Complete Q&A Job Interview Book and the revolutionary Instant Interviews. As the world?s leading placement lawyer, Jeff?s experience includes: Thirty-five years of law practice specializing in representation of staffing businesses and practitioners; Author of ?The Allen Law?--the only placement information trade secrets law in the United States; Expert witness on employment and placement matters; Recruiter and staffing service office manager; Human resources manager for major employers; Certified Personnel Consultant, Certified Placement Counselor, Certified Employment Specialist and Certified Search Specialist designations; Cofounder of the national Certified Search Specialist program; Special Advisor to the American Employment Association; General Counsel to the California Association of Personnel Consultants (honorary lifetime membership conferred); Founder and Director of the National Placement Law Center; Recipient of the Staffing Industry Lifetime Achievement Award; Advisor to national, regional and state trade associations on legal, ethics and legislative matters; Author of The Placement Strategy Handbook, Placement Management, The National Placement Law Center Fee Collection Guide and The Best of Jeff Allen, published by Search Research Institute exclusively for the staffing industry; and Producer of the EMPLAW Audio Series on employment law matters. Email him at jeff@placementlaw.com.

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1 Comment on “Should You Send Out Temps During A Strike?

  1. It’ll be interesting to see whether employers will be so quick to turn to staffing agencies in general following the Browning-Ferris joint employer case. Melissa Boyce, XpertHR Legal Editor

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