Section 303 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 187, provides a private cause of action for a party injured by a union’s conduct defined as an unfair labor practice under Section 8(b) of the National Labor Relations Act (“NLRA”), 29 U.S.C. § 158(b).   Section 8(b)(4)(ii)(B) prohibits a union from inducing a person to refuse to work for a neutral employer with the purpose of compelling that employer from doing business with the primary, offending employer. U.S. Info. Sys., Inc. v. Int’l Bhd. of Elec. Workers Local Union No. 164, AFL-CIO, 500 Fed.Appx. 198, 200 (3d Cir. 2012) Importantly, it is the union’s motive and intent, not conduct, that determines whether it has violated Section 8(b)(4).

Section 8(b) of the NLRA, 29 U.S.C. § 158(b), establishes certain actions that are unfair labor practices when committed by a union.  These provisions of the NLRA are commonly referred to as the secondary boycott provisions.  It is an unlawful labor practice for a union to engage in a secondary boycott.  They are intended “to prevent a union from influencing a neutral third party’s relationship with a primary employer in order to compel the primary employer to consent to the union’s demands.”  U.S. Info. Sys., Inc., 500 F. App’x at 200.  Section 8(b)(4)(ii)(B) prohibits a union from inducing a person to refuse to work for a neutral employer with the purpose of compelling that employer from doing business with the primary, offending employer[1]. Id.

A violation of Section 8(b)(4) involves an examination of both the union’s conduct, intent, and objective.  The intent of a union is unlawful when its “conduct is calculated to force the secondary employer to cease doing business with the primary employer.  Fid. Interior Const., Inc. v. Se. Carpenters Reg’l Council of United Bhd. of Carpenters & Joiners of Am., 675 F.3d 1250, 1259 (11th Cir. 2012)   Under Section 303 of the LMRA, if a union commits a violation of Section 8(b) of the NLRA, a party can bring a private right of action against the union in federal court.

Actions involving claims that a union violated Section 8(b)(4) of the NLRA are particularly ill-suited for a Rule 12(b)(6) motion to dismiss because they are fact sensitive and require a determination of the union’s intent.  In Section 8(b)(4) cases, the union’s motive and intent are “a question of fact to be determined by an examination of the totality of [the] union’s conduct in [a] given situation.” U.S. Info. Sys., Inc., 500 F. App’x at 200; F.A. Wilhelm Const. Co., Inc. v. Kentucky State Dist. Council of Carpenters, AFL-CIO, 293 F.3d 935, 940 (6th Cir. 2002) (“The question is a factual one as to the union’s intent.”); NLRB v. Int’l Bhd. of Elec. Workers, Local 265, 604 F.2d 1091, 1097–98 (8th Cir.1979).

The decisive question in a secondary boycott case is whether the intent or object of the union’s activity is directed at the primary employer alone or at secondary employers, with the intention of pressuring the secondary (neutral) to curtail business with the primary employer or to pressure the primary to agree to the union’s demands. Circle Grp., L.L.C. v. Se. Carpenters Reg’l Council, 836 F. Supp. 2d 1327, 1360-61 (N.D. Ga. 2011).  A union’s objective are unlawful “so long as one of the union’s objectives was to influence the secondary employer to bring pressure to bear on the primary.” R.L. Coolsaet Constr. Co. v. Local 150, Int’l Union of Operating, 177 F.3d 648, 655 (7th Cir.1999);  Fid. Interior Const., Inc. v. Se. Carpenters Reg’l Council of United Bhd. of Carpenters & Joiners of Am., 675 F.3d 1250, 1259-60 (11th Cir. 2012)(“If any object of the picketing is to subject the secondary employer to forbidden pressure then the picketing is illegal. It need not be the sole or even main purpose.”)  Additionally, “[i]f the union acts with ‘mixed motives,’ partially primary and partially secondary, its conduct is unlawful under section 8(b)(4); it is not necessary to find that the sole object of the strike was secondary so long as one of the union’s objectives was to influence the secondary employer to bring pressure to bear on the primary.” Mautz & Oren, Inc. v. Teamsters, Local No. 279, 882 F.2d 1117, 1120–21 (7th Cir.1989).

Encouraging employees of neutral employers to refuse to work or strike is a violation of Section 8(b)(4). Limbach Co. v. Sheet Metal Workers Intern. Ass’n, 949 F.2d 1211, 1219 (3d. Cir. 1991)(“The proscribed methods used to achieve the objectives include inducing or encouraging employees of the secondary employer to strike or refuse to perform services in the course of employment and threatening, coercing, or restraining the secondary employer.”)  F.A. Wilhelm Const. Co., Inc., 293 F.3d at 940.  (“Encouraging employees to engage in a concerted activity against their employer in order to have that employer refuse to deal with the primary employer is illegal.”); R.L. Coolsaet Const. Co. v. Local 150, Int’l Union of Operating Engineers, 177 F.3d 648 (7th Cir. 1999)  These Courts have also held that a union violates Section 8(b)(4) even when its conduct is a protected sympathy strike.  Id.

In Limbach Co., the Third Circuit recognized that inducing or encouraging union members to refuse to work for a union contractor during within the scope of their employment is a violation of Section 8(b)(4).  Limbach Co., 949 F.2d at 1219.  Limbach Co. involved a case of a union contractor who became embroiled in a labor dispute with the Sheet Metal Union, which was the union that represented its employees and with whom it maintained a collective bargaining agreement. Id. at 1213-1214.  The gravamen of the dispute was Limbach’s relationship -through a parent company – with a non-union contractor, Harper Plumbing & Heating Company, Inc.  Id. at 1213.  The Sheet Metal Union believed that Harper should be a union company and demanded that Limbach obtain a collective bargaining agreement with the Sheet Metal Union from Harpers.  Id. at 1213-1214.  However, Limbach refused.  Id.

Thereafter, the Sheet Metal Union attempted to dissuade union contractors, including Limbach, from doing business with Harpers.  Id. at 1215.  As part of these efforts, among other things, the Sheet Metal Union and its agents sent written correspondence to Limbach’s union employees encouraging them to quit Limbach’s employ or to walk off certain jobs on which Limbach was working after the collective bargaining agreement expiredId. at 1220.

A jury found that the union’s conduct violated Section 8(b) and awarded Limbach $2.8 million in damages.  Id. at 1217.  The Sheet Metal Union appealed and the Third Circuit overturned the jury’s verdict.  Id. at 1220.  However, importantly, it did so because under Section 8(b)(4)(i) “quitting is not a refusal to perform services within the course of employment as proscribed by that section.”  Id. at 1220.  Thus, if the union employees had simply refused to work then a Section 8(b)(4) violation could have been found.  Moreover, its analysis of the union’s conduct provides an outline of what Section 8(b)(4) prescribes.

First, the Third Circuit held that the words “induce and encourage” as used by Section 8(b) are “broad enough to include every form of influence and persuasion.”  Id.  And, that the Sheet Metal Union’s conduct “no doubt . . . was intended to encourage and induce Limbach employees.”  Id.

Second, the Third Circuit held Section 8(b) “prohibits inducement of employees to refuse, in the course of their employment, to perform certain work.”  Id. (emphasis added).  The Court went on to hold that since quitting was different that refusing to work “in the course of their employment” the union did not violate Section 8(b).

Furthermore, in F.A. Wilhelm Construction Co., the Seventh Circuit held that a union violates Section 8(b) when it encourages union members to stop working for a union contractor even where the employees could have acted on their own initiative.  F.A. Wilhelm Construction Co., 293 F.3d at 940.  The F.A. Wilhelm Court considered a factual scenario quite similar to the one before this Court.

In that case, F.A. Wilhelm was a union contractor with a collective bargaining agreement with the Kentucky State District Council of Carpenters, AFL-CIO (the “Carpenters Union”).  Id.  As such, the F.A. Wilhelm’s employees were members of the Carpenters Union.  F.A. Wilhelm was a subcontractor on a construction project at the University of Louisville.  Id.  Another contractor working on the project was Dant Clayton, who was a non-union contractor.  Id.  Despite the Carpenters Union’s efforts Dant refused to enter into a collective bargaining relationship with the Carpenters Union.  Id.

In response, the Carpenters Union told all union workers on the project, including Wilhelm’s employees, that there would be picketing and requested that all union members join the picket line.  Id.  Moreover, like Local 690, the Carpenters Union distributed a wallet card that stated on one side: “GOOD UNION BUILDING TRADESMEN do not work behind banners even with 4 gates.”   The other side read: “Which side are you on? Picketing has been described by the Supreme Court as the “working man’s means of communication.” A picket is a message to you that some of your fellow workers are engaged in a labor dispute and need your help. It is your constitutional right as an American citizen to decide how you will respond to that picket. Under the law your union cannot help you make that decision. You can seek guidance only from your conscience then decide, “Which side am I on?” Id.

A picket line was then established and Wilhelm’s union employees refused to cross it.  Id.  The project was shut down for several days.  Id.  Wilhelm then brought an action under Section 303 of the LMRA for the Carpenters Union’s violation of Section 8(b)(4).  A jury returned a verdict in favor of Wilhelm and the union appealed. In upholding the jury’s verdict that the Carpenters Union had violated Section 8(b)(4) the Seventh Circuit held that the Carpenters Union’s conduct was aimed at keeping Wilhelm’s union employees off the job.  Id. at 940.  The Court further held that this demonstrated that the union’s intent was “to embroil Wilhelm in its labor dispute against Dailey.”  Id.  Importantly, because it was the union’s intent to embroil Wilhelm in a labor dispute involving another employer it need not reach the issue of whether a no-strike clause was violated.  Id.

[1] 29 U.S.C. § 158(b)(4)(ii)(B) states:

(b) Unfair labor practices by labor organization. It shall be an unfair labor practice for a labor organization or its agents

(4)(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; … where in either case an object thereof is

(B) forcing or requiring any person … to cease doing business with any other person, … Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing..