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Last week’s Boston Globe has a story about the recent dismissal of a criminal case against two Boston city officials for their involvement with an alleged union extortion scheme designed to pressure non-union businesses to give work to members of the local Teamsters Union.  (The reporters were kind enough to seek my comments for the article.)  The case in Boston is notable because its outcome diverges from similar cases brought in Philadelphia and New York, which resulted in convictions.

A.  Background on the Hobbs Act.

Federal indictments under the Hobbs Act, 18 U.S.C. Section 1951, for actions taken to “entice” non-union contractors and developers to hire union members is a subject matter that I have written about on this blog.  The reason for my interest is not only because I represent a number of merit shop contractors and developers (as well as union contractors) but because of several recent high profile cases indicting union officials for extorting contractors and developers into hiring union members.  Those in Philadelphia are aware of the indictments involving Ironworkers Local 401, which involved its use of “goon squads” and other tactics to obtain work for its members and signatory contractors.  That indictment ultimately lead to the conviction of several Ironworkers, including its President.  That case came on the heals of a similar case involving the Operating Engineers.

The Hobbs Act makes it a federal crime to extort or attempt to extort a business or individual engaged in interstate commerce.  However, the common understanding of extortion differs from the technical meaning of extortion found in the Hobbs Act.  Under the Hobbs Act “the term “extortion” means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.”  (The reason for my highlighting of these terms will become clear in a minute.)

For years, because of a U.S. Supreme Court Case U.S. v. Enmons, the prevailing view was the unions and their officials were immune from liability under the Hobbs Act.  In Enmons, the Supreme Court explained that a Hobbs Act violation involves two things: (1) actual threatened force, violence, or fear (means) and (2) the obtainment of property of another (ends).  So, the means and the ends must be illegitimate before a Hobbs Act violation can occur.  The Court in Enmons reasoned that the property that was allegedly extorted was higher wages for union members and since the union had a legitimate claim to those wages it could not extorted “the property of another.”  The Court made clear that the union’s means “force, violence, and fear” could still be prosecuted under state law, but for a federal law to be broken the both elements would need to be met.

Subsequent decisions, including decisions in the Ironworkers and Operating Engineers cases, walked back the seemingly broad breadth of the holding in Enmons.  Several courts noted that Enmons should be limited to its facts.  Those being where a union was engaged in an active strike against an employer with whom it had an existing collective bargaining relationship.  Compared to a situation, such as with the Ironworkers and Operating Engineers, where there was no such relationship between the unions and the victims.

Now, as I discuss in the Boston Globe, the federal court’s decision to dismiss the indictments against the two Boston officials and the previous ruling by the 1st Circuit Federal Appeals Court could make it harder for federal prosecutors to indict union officials or it could just further clarify the contours of the Hobbs Act intersection with federal labor law.

B.  The Boston Teamsters Case: The Ends and the Means.

In United States v. Burhoe (1st Cir., 2017), the president of the local Teamsters union and an associate were indicted for extorting non-union businesses into employing Teamsters on projects.  After a six-week trial, the jury found them guilty, under the Hobbs Act and related federal charges.  The defendants appealed their convictions under the Hobbs Act and the 1st Circuit Court of Appeals overturned their convictions reasoning that their conduct in pressuring non-union firms to employ Teamsters did not rise to extortion under the Hobbs Act.

The Court reasoned that under the Hobbs Act both the ends and the means of the extortion must be unlawful.  Thus, as in Enmons, to be guilty under the Hobbs Act the defendant must have no legitimate claim to the property obtained and his means of obtaining it must also be wrongful.  The Court noted that threats of violence or physical harm are almost always a wrongful means under the Hobbs Act.  The Court also said threats of economic harm could be wrongful.  It becomes wrongful when the defendant has no legitimate right to the property sought.

The Court then examined the indictment as it related to the non-union firms.  The indictment alleged that the defendants extorted wages for imposed, superfluous, and unwanted labor through the threat of economic harm and physical harm to the company and others.  The Court then examined the underlying cases of extortion.  While in each case the union officials were aggressive and blunt and threatened a picket line, the Court noted that no bodily harm or property damage was threatened or occurred.

Defendants challenge to the conviction hinged on whether the trial court properly instructed the jury on extortion.  Defendants argued that the trial court should have instructed the jury that the labor was superfluous, unwanted, and fictitious.  In other words, the wages extorted (the ends) would have to be in return for no show jobs.  The Court reasoned that if the union members actually worked, there could be no Hobbs Act violation, at least when the pressure was limited to threats of picketing.  The Court held that picketing to pressure an employer to hire union members was protected under the National Labor Relations Act (this is not correct but it was not a central issue in the case).  Thus, the Court reasoned anytime a union set up a picket line to protest non-union work it could result in a Hobbs Act violation if the employer ultimately caved to the union’s demands.

C.  The Ironworkers and Operating Engineers Cases.

In contrast, the federal courts in the Dougherty and Larson cases reached different conclusions regarding the intersection of the Hobbs Act and the National Labor Relations Act.  These cases are also in contrast in two ways.  First, in both cases, the union’s means was threats of and actual violence and property damage (in the Doughtery case the Ironworkers were alleged to have burnt down a Quaker meeting house).  Second, neither court held that the wages extracted had to be for fictitious or no-show services for their to be a Hobbs Act violation.

The Larson case goes further and shows the divergence on the issue of a legitimate claim to property.  In Larson, members of the Operating Engineers were indicted under the Hobbs Act – and related federal criminal statutes, including RICO.  The indictment alleged that the union members sought to obtain wages and other property interests from non-union firms using the means of actual violence, sabotage of property, and threats.

The defendants moved to dismiss the indictment under Enmons arguing since the ends were legitimate the means were irrelevant.  The magistrate judge recommended dismissal of the indictment based on Enmons.  But, the district judge disagreed.

In contrast to the Burhoe ruling, in Larson the trial judge rejected the argument that flipping non-union jobs to union jobs was a legitimate union objective.  The trial judge succinctly framed the issue in labor union extortion cases stating:

 If the union acts in furtherance of a legitimate labor objective, the use of force or violence incident to the pursuit of that objective is not subject to Hobbs Act liability (although it might be subject to prosecution under other provisions). However, if a union’s objective is not legitimate, Enmons will not protect it from prosecution under the Hobbs Act.

As the Court explained, “[i]n a legitimate strike situation, the union has a lawful platform on which to seek higher wages and better terms for its members. However, when a union pursues agreements with new employers through primary tactics of violence, threats, and intimidation, it does not have a lawful platform on which to claim the property of the employer. The use of such tactics is therefore “wrongful” under the Hobbs Act.

D.  Do the means matter?

Burhoe’s ultimate conclusion that a union official does not commit extortion simply by threatening a picket line is not the problem.  In fact, that conclusion is probably correct.  The problem for prosecutors at least in the 1st Circuit is that it concluded that the wages extorted must be for fictitious work, at least in part. In Burhoe, the Court stated “It follows that the district court erred in instructing the jury that it could find extortion where the defendants sought to obtain “imposed, unwanted, superfluous or imposed, unwanted, and fictitious work” by using “fear of economic loss,” which encompasses picketing protected under the NLRA.”  The Court continued by explaining “the disjunctive construction impermissible relieved the government from having to prove that the work was “fictitious” and thus could have allowed the jury to find a violation merely because the union sought to turn around nonunion jobs to maintain the prevailing wage through such a threatened picket, and the employer did not want to use the union workers to perform the work.”

On one hand it could be said that under Burhoe is limited to its facts.  Thus, when the means are limited to threats of and actual “peaceful” picketing, then the government must show that the ends were for no-show work.  In other words, contrary to Enmons, the means do matter.  Larson may actually shed some light on this when it held that when a union is attempting to obtain work for its members it “may [not] use an unlimited array of coercive tactics to secure such an agreement with an employer.”

However, on the other hand, if Burhoe is limited to its facts, then the Court’s analysis does not make any sense because if the ends are legitimate property then, as Enmons holds, the means to obtain it, while potential violating other laws, does not violate the Hobbs Act.  So, it would not matter if the means were peaceful picketing or a threat to break the legs of an owner of a non-union firm.  Therefore, under Burhoe’s reasoning any conduct, including property damage or physical harm, that results in a non-union employer agreeing to hire union members is not punishable under the Hobbs Act.  As in Enmons, the violence to property and body may be punishable under state law, but the conduct does not violate the Hobbs Act.

Ultimately, this seemingly inherent contradiction in Enmons must be resolved by Congress or the Supreme Court.  Before then, case law suggest the means do matter.  Threatened an actual violence to person or property is going to be grounds to indict under the Hobbs Act, while aggressive behavior and threats of a picket line may prove more challenging.

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.

 

News of the indictment of 10 members of the Ironworkers Union, left many wondering “What took them so long?”  As any developer or merit shop contractor will tell you, the actions that the Ironworkers are alleged to have engaged in are not solely the purview of the Ironworkers.  Indeed threats, violence, and property destruction are the modus operandi for many trade unions trying to obtain work for their members.

Those cheering the news can thank the federal court for the Western District of New York for its decision in U.S. v. Larson, which was issued in September 2011.  The case also explains why federal prosecutors have for a long time been hesitated to indict members of organized labor for actions that would land anyone else in jail.  The case also could signal a wave of indictments against organized labor to come.

The Larson case involves the indictment of members of the International Union of Operating Engineers under the RICO law, which is the same law used to indict the Ironworkers.  Like the indictment in the Ironworkers case, the indictment in that Operating Engineers case alleges that the Operating Engineers made threats, engaged in violence, and destroyed property in an effort to get merit-shop (non-union) contractors to sign a collective bargaining agreement with the union.

The defendants moved to dismiss the indictment arguing that under a under a controversial 1973 U.S. Supreme Court decision, U.S. v. Enmons, which stated that act of violence by a labor union did not violate federal law, if the acts were committed in furtherance of “a legitimate union objective.”  In Larson, the defendants argued that their ultimate objective, to get non-union contractors to sign collective bargaining agreements, was “a legitimate labor objective,” and, therefore, they were immune from prosecution under Enmons.

The Larson court rejected that argument and distinguished Enmons.  The Larson court pointed out that the union in Enmons was in a legitimate strike with the employer.  The Court pointed out that other courts had refused to extend Enmons to claims where a union uses the threat of violence to obtain a new collective bargaining agreement from an employer not previously a signatory to it. The Court also distinguished the special way federal labor laws treat construction industry employers from other industries.  In doing so, the Larson Court ripped away the veil of protection Enmons had afforded to labor unions and which enabled them to escape prosecution under the RICO laws.

It took the courts 41 years to limit the Supreme Court’s holding in Enmons, which answers the question of “what took so long?”  But in the wake of the Larson decision and in the wake of the Ironworkers indictment the question that organized labor should be asking is “who is next?”

 

 

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.

Philly.com is reporting that the Philadelphia Police Department has arrested two union members for assault arising out of shenanigans at the Goldtex site.  Here is the video of the incident that led to the arrests:

In an early post this month, we asked if there should be more arrests of union leaders and members for engaging in the type of activity seen at the Goldtex site.  Unlike, the incident in New York, which prompted that post, where those charged were the organizers of the protest, the arrests here appear to be limited only to the individual protesters that took part in the assault.  In any event, the arrests are significant and is certainly the first time  in recent memory that union members have been criminal charged for there actions at a job site.  We will see if the Philadelphia District Attorneys Office – or even the US Attorneys Office – brings additional charges against any additional participants in the protests or, like in New York, union leaders themselves.

Is the controversial Goldtex project the beginning of the end for the last union-town in America?  Ryan Briggs over at HiddenPhilly.org has an interesting piece that explores this question.  

I have been an outspoken proponent of what the developers of the Goldtex project are doing.  I applaud them not because they are trying to bust up unions, rather because they are standing up to a long history of Big Labor extortion of developers in the City of Philadelphia.

I am not anti-union.  In fact, I think union apprentice and trade schools do a great job of teaching individuals a real world pliable trade.    I think it takes a remarkable person to to voluntary go hundreds of feet into the air to weld steel.  And, I am certainly not against anyone that puts in a hard days work everyday working with their hands.

However, what I am against are the mob like tactics used by Big Labor to extort developers into giving work to labor unions.  We would not stand for the deplorable, embarrassing, and childish behavior in any other industry.  Imagine if I went to a potential client and destroyed their property because they hired another law firm!  Imagine if Microsoft destroyed an Apple Store because they were angry with people buying iPads!  Union behavior of the kind being exhibited on the Goldtex project is nonsensical.   Who is advising the Unions?  Do they really think that they are endearing themselves to the public by engaging in such tactics?

Moreover, the folks that are vandalizing protesting the Goldtex project are professional grade thugs protesters.  They are not the rank and file members of the trade that just want to go to work and earn a living.  If Big Labor truly believes that better quality work justifies the higher cost of Union labor then why don’t they demonstrate that to developers?  In other words send your business agents to sales school, not thug school.  Furthermore, if union members are truly concerned about their future they should immediately fire their leadership.  Obviously, they are doing a horrible job for you as you ranks and influence shirk everyday.

So, what the Goldtex developers are really doing is standing up to bullies.  And until Big Labor changes the way it sells itself to consumers, that is something we can all agree with.

 

Anyone who has tried to undertake a significant construction project in the City of Philadelphia can testify to the brotherly love organized trade unions show them.  Well according to the Philadelphia Daily News, one developer is fighting back.

Like many developers, Post Goldtex is the victim of a classless and illegal picketing campaign brought by the Philadelphia Building Trade Council.  Among the tactics Big Labor is employing in this particularly nasty dispute is the circulation of a flyer showing the wife of the principals in the development group in a photoshopped pornographic picture.  Talk about the War on Women.  Even worst, the Philadelphia City government seems at best complicit to the entire ordeal and at worst actively involved.

However, the developers are not rolling over.  Instead they have started a web page www.phillybully.com to tell their side of the story.  In my experience, Big Labor cannot take a taste of their own medicine and the developer should aggressively counter-picket the unions and beat them at their own game.

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.

In the past year, the NLRB has issued a series of opinions which give a rather “liberal” interpretation of Section 8(b)(4)(B)’s prohibition on threatening, coercing, or restraining a neutral employer from doing business with someone.  Bannering, “Ratting,” and even infiltrating worksites impersonating federal immigration agents have all passed muster with the Board.  Apparently, bouyed by these decisions the Carpenters Union has taken its coercive and threaten tactics to the next level.  Recently, the Carpenters Union has been sending certified letters directly to neutral employers, who are the owners of construction projects, threatening the owner with picketing because of a “labor dispute” with a merit shop contractor working on the job site.    The letters name the contractor with whom the Carpenters allegedly maintain a “labor dispute.”  Moreover, the letters are being sent to employers who have no direct contract with the contractor that is involved with the “labor dispute.”  Usually, the contractor that the Carpenters are targeting are a subcontractor to the owner’s general contractor. 

As I have blogged about before, Section 8(b)(4)(B) of the NLRA prohibits a union “to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce . . . to cease doing business with any other person.”  Until this year, case law held that picketing a neutral employer violated Section 8(b)(4)(B) with the term “picketing” being fairly well defined.  However, beginning with United Brotherhood of Carpenters and Joiners of America, Local 1506 (Eliason & Knuth of Arizona, Inc.), 355 NLRB No. 159 (Aug. 27, 2010), the Board began gradually eroding the definition of picketing when it held that large stationary banners announcing a “labor dispute” at a neutral employers site where not tantamount to picketing but rather were protected forms of free speech.  In a later decision, the Board blessed the use of the familiar large inflatable rats to protest a “labor dispute” at a neutral employers job site on the same free speech grounds. 

Case law is split on wheather the specific act of sending letters to employers threaten pickets is a violation of Section 8(b)(4)(B).  However, unlike with banner and inflatable rats, the Unions cannot cloak its otherwise coercive activities with First Amendment free speech protection.  Any free speech protection for the letters is diminished because it is a private communication being sent directly to the neutral employer rather than an announcement being made to the whole community.  Therefore, the Carpenter’s Unions letters appear to squarely violate Section 8(b)(4)(B). 

I am not aware of any targeted contractors taking action against the Carpenters for the letters.  However, because there is less of a free speech issue with the letters than there is with bannering and rats, it would be interesting to see how the Board would rule if a targeted contractor did bring an unfair labor practice claim against the Carpenters with the Board.  It will also be interesting to see if any of the employers cede to the Union’s demands causing the targeted contractor to lose out on the job.  And, if so, whether the targeted contractor brings an action against the union for damages.  If we learn of any such claims or Board decisions on this matter, I will be sure to blog about it.