Any merit shop contractor or project owner with a project where merit shop or mixed merit shop / union shop crews are working will eventually deal with some form of union “picketing.” The term picketing is placed in quotes because its legal definition differs from its colloquial understanding in the industry. The colloquial term picketing includes a variety of union conduct, such as hand billing, displaying the infamous union rat (or rats), banners, and placards. What you can and should do in response to union “picketing” depends on the circumstances.
What can the union do?
Generally, peaceful “picketing,” by itself, is not illegal. Peaceful conduct includes union members handing out flyers (handbilling) to passers by that inform the public of the union’s dispute and displaying a banner or sign “shaming” an owner. Does this mean that a union is always acting legally when engaging in this type of activity? No, the analysis is fact sensitive but a union’s “peaceful activity” can become illegal if it acts with a secondary intent.
What the union cannot do?
Unions cannot block access to your project, engage in violence, engage in a “mass” demonstration, picket a reserved gate, threaten neutral parties, signal picket, or engage in organizational picket for more than a 30 days (or sometime less).
What should you do?
If the union activity is relatively peaceful (albeit a nuisance) the best approach is to try to ignore it. You should however keep a record of the activity in case the circumstances become un-peaceful.
What you can do?
If the union’s conduct simply cannot be ignored, then you have a few options.
A. Set Up Dual Gate
Union’s can protest a labor dispute with the employer who has the ability to hire its members. Therefore, the carpenters union can protest a labor dispute with a carpentry contractor but cannot protest a dispute with a plumbing contractor. Picketing aimed a a neutral or secondary party is illegal under the National Labor Relations Act. On a construction site, there are may different employers working. The National Labor Relations Board has set up rules to deal with so called common situs picketing.
Under these rules, an project owner can establish a dual gate system. If the system is established, the union must limit its protest to the gate (entrance) used by the contractor with whom the union maintains a dispute and at the times when the employer is on site. At a minimum, this is a way to control the location of the picketing.
To establish a valid reserved or dual gate system, owners or contractors must notify the union, post notice of which gate are to be used to the primary contractor and which gate is to be used by the neutral contractors, and, importantly, the gates must be, in fact, used by those parties. The gates cannot be “tainted.” In this regard, it is a good idea to keep a record of all those coming and going through each gate.
If the union does not limit its dispute to the location of the primary gate, then it has committed an unfair labor practice and a charge can be filed against it with the National Labor Relations Board.
B. Injunctive Relief
Sometimes union activity becomes so unruly that only an order from a Judge can stop it. (And, sometimes that is not even enough.) The availability of injunctive relief against a labor union varies from state to state. However, generally, injunctive relief is limited to situations where the union is engaging in violence, property destruction, mass picketing, or blocking access to a project. Even in those situations, owners and contractors need to be prepared before they seek emergency relief from the court. Before requesting injunctive relief, you should:
1. Gather witnesses to the conduct for the purpose of providing affidavits and potentially testimony in court.
2. Notify and keep of record of contacting the police to maintain order. Some states, like Pennsylvania, require that law enforcement be unable to quell the union’s behavior before they will issue an injunction. In other cases, the police will request that you obtain an injunction before they do anything.
3. Photograph and record offending conduct. However, you should not videotape or photograph peaceful conduct. The National Labor Relations Act prevents you from conducting surveillance of peaceful union activity. You can record conduct that is violent, blocking entrances, or creating a safety hazard.
4. Write a letter to the union demanding that they cease and desist the conduct. Although not technically required for an injunction to issue, because of the extraordinary nature of the remedy, Court will often want you to show that you exhausted all means before seeking relief from the Courts.