Section 8(e) Of The NLRA: Potential Defense To Top-Down Union Organizing Efforts

As union organizing is increasingly a top priority in big labor’s agenda, they are pushing to include in collective bargaining agreements provisions that make it easier for labor to organize newly opened businesses, affiliates, joint ventures and even suppliers.  The language of such contractual provisions are often drafted in such a way as to give the appearance of being lawful “after-acquired” or “anti-dual shop” provisions.  However, upon closer inspection, such provisions may be unlawful and thus unenforceable under Section 8(e) of the National Labor Relations Act (NLRA).  A recent decision of the NLRB – while not finding the provision at issue to be unlawful under Section 8(e) – underscores that this lesser known section of the NLRA should not be overlooked when analyzing collective bargaining provisions and proposals that purport to extend the application of a company’s collective bargaining agreement.

Section 8(e) makes it an unfair labor practice for a union and an employer to enter into any agreement, express or implied, where the employer agrees to cease or refrain from doing business with any other person.  Not every collective bargaining provision with a “cease doing business objective” is necessarily unlawful, however.  Contract provisions that have the primary objective of preserving or protecting work performed by employees of the employer bound by the contractual provision are lawful.  On the other hand, provisions that have the secondary objective of controlling the labor relations of another employer are unlawful under Section 8(e).

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