Yesterday, I talked about how the Carpenters’ Union has been sending letters to neutral employers threaten to picket a job site if a merit shop contractor were permitted to perform work on that site. I received multiple inquiries asking what a contractor can do if they are the target of such a letter. The most common approach is to file a claim with the NLRB against the union claiming that the union has engaged in an unfair labor practice. However, this is probably a waste of time. The better approach is to bring a claim directly against the union in federal court under Section 303 of the Labor Management Relations Act.
Under the NLRA, anyone who believes they have been harmed by a unfair labor practice can bring a charge with the NLRB. After the charge is made, the NLRB has a duty to investigate the charge. If the investigation finds that the charges have merit, the NLRB will issue a complaint against the party who allegedly violated the NLRA. And, a hearing will be held in front of an Administrative Law Judge. One way of looking at the NLRB is that it acts as a special Attorney General (or District Attorney) who deals will onlywith alleged violations of the federal labor law.
In certain cases, bringing a claim with the NLRB can be effective. First, its cheap. The claimant does not have to pay for the NLRB investigation or prosecution of meritorious claims. Second, it can be efficient. NLRB investigations alone way lead to a settlement. Or, if need be, the NLRB has the ability to drop the hammer and obtain injunctive relief when necessary.
However, bringing a claim with the NLRB has several drawbacks. First, the NLRB has no ability to award an aggrieved contractor damages if it finds that it has been a victim of an unfair labor practice (the Board does have the ability to award back pay to an employee who is a victim of an unfair labor practice, however.) Second, the NLRB is a political body and as we have often blogged about, the NLRB is apt to make decision based on politics rather than the law. Finally, the person that hears the claims and appeals in NLRB unfair labor actions are usually experts on labor law.
Therefore, bringing a claim with the NLRB is best where a contractor or neutral employer wants to obtain some sort of remedial action against a union such as an injunction against a picketing. However, the Board is not the best place seek relief from nuiansed violations of labor law such as banner, “ratting,” or being sent a threat to picket letter which have caused a contractor monetary damages, like losing a contract.
The better approach to seek relief for the more nuiansed labor law violations is to bring a claim against a union pursuant to Section 303 of the Labor Management Relations Act. Under the Act, anyone injured by an unfair labor practice can sue in federal court to recover damages. Therefore, if you are a contractor that suffers actual legal damages as a result of a union’s unfair labor practices you can bring a lawsuit in federal court against that union to recover those damages. The best reason to bring a private cause of action against a union rather than a simple NLRB claim is the right to a jury trial. The second best is the ability to recover money damages, which the NLRB cannot award a contractor.
Juries are not experts on labor law. Juries are also more likely to be swayed by the equities of a case. Moreover, juries are less likily to render a decision for political reasons, such as ruling aggressive union bannering or using large inflatable rats are protected forms of speech. In fact, as public opinion has moved against organized labor, juries may be the considered contractor friendly. Jury awards to contractors who bring privte causes of action under Section 303 are common and the damages awards are often staggering.
Certainly, private rights of action under Section 303, have their drawbacks as well. Like any litigation, there are inherent risks. First, a contractor will likely have to pay for the cost of litigation until a jury renders an award. Indeed, unlike an NLRB claim a contractor will have to hire an attorney to pursue the case. Second, juries are sometimes unpredictable and could easily award a contractor zero damages. Finally, cases with adverse precedent could be dismissed before they even reach a jury.
The Courts are split on whether union letters threaten a strike if a non-union contractor is allowed to work on a job are unfair labor practices. However, dispute the risks private rights of action under Section 303 are something to consider.