The Pennsylvania Superior Court gave general contractors and non-union real estate developers a early Christmas gift and a bit of positive news going into the New Year in a recent decision that upheld (for the most part) a trial court’s preliminary injunction enjoining labor unions from engaging in mass picketing and gate blocking of a construction site.
In Turner Construction v. Plumbers Local 690 (the case name contains a hyperlink that will take you to a copy of the opinion), the Pennsylvania Superior Court was asked to consider whether a preliminary injunction that prohibited picketing within twenty-five feet of the entrance to a construction site and limited the number of picketers to five was overly broad. In short, the Superior Court held that the twenty-five feet restriction was a reasonable condition to prevent the picketers from blocking ingress and egress to the site. However, the Court held that the restriction that limited the number of picketers to five was an unreasonable restriction on the picketer’s First Amendment rights.
The case is important for general contractors using both union and non-union subcontractors and real estate developers for two reasons. First, it reaffirms when a trial court may issue an injunction against a labor union’s picketing activity. Second, it provides guidance on how far a trial court may go in restricting a union’s picketing.
An abbreviated version of the facts is as follows. Turner was the general contractor on a project owned by Children’s Hospital of Philadelphia that was being built in Montgomery County. Turner subcontracted with both union and non-union subcontractors. However, its plumbing subcontractor was a non-union firm. Members of Plumbers Local 690 began picketing the site to “protest” the horror of a non-union firm performing work on the project. One day the Plumbers held a rally at the site which blocked anyone from entering the project, prevented deliveries, erected the ubiquitous inflatable rat, and trespassed onto the project. The local police were called and responded. (However, they did not do much concerning activity that would have landed you or me in jail.) Turner immediately filed a complaint with the Montgomery County Court of Common Pleas seeking an injunction preventing such activity. As usually, the union had no defense to its clearly illegal activity and agreed to a stipulated preliminary injunction. That injunction prohibited picketing within 25 feet of the project’s entrance and limited the Plumbers to five total picketers.
Typically, the Plumbers ignored the court’s injunction. Then, the Plumbers held a “rally” with two other unions, the Sprinkler Fitters and Insulators. The rally had over 180 participants. The 180 participants blocked the project’s entrances and prevented deliveries. The participants even struck a festive tone and erected a tent with a cooler and food right in front of the entrance (Note: I have noticed that the refreshment tent is a picketing trend. The coffee tends to be very good and the pretzels fresh. Also, why not replace the rat with a band?) The local police and Montgomery Sheriff’s Department were called to intervene but they would not dampen the revelers’ mood and the project ground to a halt.
Thereafter, Turner moved to amend its complaint to include the two unions who participated in the rally and sought a preliminary injunction against them as well. After a hearing on the matter, the trial court entered an injunction against the the Sprinkler Fitters and Insulators unions. That injunction extended the original injunction to those unions. In doing so, it limited the total number of picketers from all three unions to 5 (or as the Superior Court expressed 1.66 picketers per union). The unions appealed.
On appeal, the Superior Court addressed the following issues:
1. Did the union’s activities amount to a “seizure” under Pennsylvania’s Anti-Injunction Act?
2. Was the injunction overly broad in violation of Pennsylvania’s Anti-Injunction Act?
Injunctions Under the Pennsylvania Anti-Injunction Act
Under Pennsylvania’s Anti-Injunction Act, courts are prohibited from issuing injunctions enjoining activities arising out of a labor dispute, unless one of the enumerated exceptions applies. One exception is when a labor union “seizes” an employer’s plant. Commonwealth Courts have repeatedly held that a seizure occurs when a labor union’s actions block lawful ingress and egress into a project. Relying on a body of case law, the Superior Court ruled that the unions’ actions amounted to a seizure of the project thus excepting the matter out of Pennsylvania’s Anti-Injunction Act. Given the well settled law in this area, this part of the Court’s decision was not a surprise.
However, the Court then clarified what is an apparent area of confusion. It held that when obtaining an injunction against mass picketing that blocks access to a project, the court should apply general equity rules rather than the more stringent rules from an injunction set forth in the Anti-Injunction Act.
Moreover, and perhaps more importantly, the Superior Court held because the Anti-Injunction Act does not apply to mass picketing injunctions, the restrictions of when an injunction can apply listed in Section 206f also do not apply.
The Breadth of the Injunction
The Court then addressed whether the injunction’s prohibition on picketing within twenty five feet of a gate and limitation on the number of picketers unnecessarily impinged on the union’s free speech rights. First Amendment considerations are always present when seeking to enjoin picketing. Court’s must balance a party’s right to protest a grievance, albeit through unsavory and annoying means, with a party’s property and personal rights. Thus, any injunction must be narrowly tailored to achieve the purpose of maintaining order. As to the distance restriction, the Court held that it was narrowly tailored and reasonably necessary to prevent the unions from blocking access to the project. However, as to the number of picketers, the Court held that it was overly broad and unnecessary restricted the union’s free speech rights. The Court did not dissolve the injunction. Rather, it remanded the case to the trial court to tailor a less restrictive number of picketers to achieve its goals. The Court does not state the minimum number of picketers necessary to pass the restrictive test.
The Future of the Decision
While this decision is important, it may be short lived. The unions have already asked the Superior Court to rehear the case, en banc, that means in front of all 9 Judges instead of 3. If that request is denied or if the en banc panel reaches the same decisions as the 3 judge panel, then the unions will no doubt appeal it to the Pennsylvania Supreme Court. That is where things get interesting. This week 3 new justices will be sworn in to the Pennsylvania High Court which will tilt the balance of power on the Court 4-3 in favor of Democrat judges. The 3 new Justices were heavily supported by organized labor in their election efforts. What impact, if any, on an appeal of this case will have to be seen, but it cannot be ignored.
The Take Away (for now)
- Pennsylvania courts can issue injunctions prohibited picketing that blocks entry to a project.
- Pennsylvania courts can limit the scope and location of the picketing to achieve the goal of maintaining access to the project.
- Normal equity rules apply in deciding to issue a preliminary injunction enjoining mass picketing at project gates rather than the more restrictive test articulated in the Anti-Injunction Act.
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.
