With a high number of their members still out of work and an increased willingness of owners to build projects using non-union construction in traditional union dominated markets, trade unions have increased their picketing activity on projects using non-union labor. Here is a list of frequently asked questions we receive from owners and contractors working at those projects.
1. Can you get me an injunction against the union?
No. Probably the most frequent request we receive from clients subjected to a picket line is asking for an injunction. Both federal and state law prohibit a court from issuing an injunction prohibiting peaceful picketing. Plus, the First Amendment permits a union — or anyone else — from peaceful protesting the grievances. (And, as much as I abhor the unions tactics, I am incredibly thankful that I live in a country that gives them the right to protest.)
he operative word here is is a “peaceful” protest. The unions do not enjoy an unlimited right to picketing. The unions cannot block entrances, engage in violence, or destruction of property. Those activities can be controlled by the courts through injunction relief.
2. Can you control the location of the picketing?
Yes. Federal labor law prohibits a union from picketing an employer not subject to the labor dispute. It is important to understand who the employer is. Owners and general contractors who subcontract their work are not considered employers of the trade contractor being picketed by the union.
Because multiple employers — subcontractors – are working on a construction site, it is possible to control the location of the union picket line through the use of a tw0-gate or dual gate system. Under federal law, if a dual gate system is properly established, a union must confine its picketing to the gate used by the contractor subject to the labor dispute.
For example, if the electricians union is picketing your project and you establish a two gate system, the electricians union must limit its picketing to the gate used by the electrical subcontractor. If the union fails to honor the two gate system, you can bring an unfair labor charge with the National Labor Relations Board or sue the union in federal court.
However, the two gate system must be properly established and maintained for the charge to stand.
3. I do not employ anyone working on the construction project. Can the unions picket me?
No. Under federal law, it is illegal for a union to threat or coerce a neural employer from doing business with a contractor subject to a labor dispute. Therefore, the unions can only picket the contractor that is employer workers in the trade that the union represents. If unions are picketing you and you do not employ members of the union’s trade, you can bring an unfair labor practice charge against the union or sue the union in federal court.
4. Can I be terminated and replaced by a non-union contractor because of the picketing?
No. If you are a subcontractor that has been terminated and replaced by a union contractor because of union picketing, you could be entitled to damages against the general contractor or the union. Under Section 303 of the Labor Management Relations Act anyone injured by an unfair labor practice can sue in federal court to recover damages. Therefore, if the union pressured the party who you maintained a contract with to terminate you and replace you with a union contractor, you could sue the union in federal court for damages alleging that you were damaged by an unfair labor practice.
Wally Zimolong
Wally represents contractors (and subcontractors) and developers. His clients build and develop residential, commercial, and industrial properties nationwide. Wally enjoys working with the owners of the businesses he represents because they tend to be entrepreneurs and all around interesting people.
