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. 

As promised, I am back blogging on construction (however, my previous posts will not be the last your hear about hard money lending).

In a previous post, I discussed the scuttlebutt surrounding NLRB’s decision in Brandon Medical Center, which blessed the use of large inflatable rats to protest a secondary employer’s decision to hire a non-union contractor.  Based upon the Board’s Brandon Medical Center, and earlier decisions in Eliason, Silverline Construction, and Forcine Concrete & Construction Co., Inc., I predicted that short of outright thuggery, it would be difficult to imagine what conduct the Board would deem coercive.  A recent General Counsel advice memorandum shows that my prediction may be coming true.

In Abestos, Lead, & Hazardous Waste Laborer’s Local 78 (Midway Jewish Center),  Local 78 picketed the Midway Jewish Center using an inflatable rat and hand-billing after the Center’s general contractor hired a merit shop asbestos abatement contractor.  The Rat held a sign that encouraged the public to call the Center’s rabbi to chastise him for allowing a merit based firm on site.  Expectantly, the General Counsel advised the Regional Director that following the Board’s decision in Brandon Medical Center that the union’s action did not violate Section 8(b)(4)(ii)(B). Never mind that the the picketing, including handing handbills to worshipers coming to the Center , continued during passover and on Saturday (which the Board’s memo reminds readers is the “Jewish Sabbath,” as not to be confused with other Saturday Sabbaths). A copy of the Midway Jewish Center case is available here.  Midway Jewish Center.

Seriously, can the union really argue that it was engaged in expressive activity directed to the public?  And, would it have really hurt Local 78 if they gave picketing a rest during Passover?  Of course not, because the Local’s goal was not to influence the public, rather it was to harass those going to worship, who had little — if anything — to do with the selection of the merit shop asbestos abatement firm.  




As first reported on the terrifc blog NLRB Insight published by the US Chamber of Commerce, the NLRB recently ruled that the common union picketing tactic of placing a large and menacing inflatable rat in front of a neutral secondary employer’s place of business does not violation the NLRA.

In Sheet Metal Workers Local #15 (Brandon Regional Hospital), 356 NLRB No. 162 (May 26, 2011), the Board held that the large inflatable rat, like the banner in Eliason, was constitutionally protected expression and did not violate the NLRA.  A copy of the Board Decision‘s is available here.

In Brandon Regional Hospital Union members in a dispute with a non-union firm set up a 12 foot inflatable rat in front of hospital where the non-union firm was working.  The union also staged a mock funeral procession in front of the hospital, distributed handbills stating that going to the hospital would  be a “grave affair,” and listing medical malpractice lawsuits filed against the hospital.  As this activity was occurring, the hospital’s safety and security director asked the Union’s organizer what the Union was doing. The organizer replied that the Union was “picketing” and explained that the rat balloon  “would probably get the attention of the public more than just regular handbills.”

The Board concluded:

“that neither the rat display nor Holly’s leaflet display constituted picketing. These displays, like the banner displays in Eliason, entailed no element of confrontation, as they were stationary and located at sufficient distances from the vehicle and building entrances to the hospital that visitors were not confronted by an actual or symbolic barrier as they arrived at, or departed from, the hospital. Further, there was no evidence that Holly or the individuals attending the rat physically or verbally accosted hospital patrons; nor does the evidence indicate that they were “posted” near the hospital “in a manner that could have been perceived as threatening” to hospital patrons.”

As  Michael Eastman of NRLB Insights properly states after this ruling:

“It is difficult to imagine that the union lobby ever could have convinced Congress to reduce or eliminate secondary boycott protections designed to protect neutral employers from labor disputes not of their making. Now, however, with decisions such as Eliason and Brandon Regional Hospital, the unions appear to be well on their way to achieving that goal.”

I would add that on the heals of Eliason, Silverline Construction, and Forcine Concrete & Construction Co., Inc., short of outright thuggery,  it is difficult to envision what conduct the Board would sanction as coercive

In a shocking decision, the NLRB recently ruled that the Carpenters Union did not violate Section 8(b)(1)(A) of the NLRA when it infiltrated a non-union contractor’s job site, videotaped non-union employees, and then posted the edited video on YouTube.

In Metropolitan Regional Council of Carpenters (Forcine Concrete), the Board addressed  an unfair labor charge based upon a YouTube video that showed the Union Representatives, who were disguised as “Inspectors,” asking questions of Hispanic employees of the non-union firm regarding their immigration status, how long they worked for the contractor, and how much they were paid.  The video was viewed 28,961 times and received 211 comments.  Later, the Carpenters Union linked the YouTube video to its Facebook page.

Although the Administrative Law Judge found that the video showed that the Union “questioning was done in a very intimidating manner” and prevented the non-union firm’s men from working, he ruled that the Carpenters Union did not violate the employees’ Section 7 rights.  Curiously, the Judge ruled that while the employees were undoubtedly restrained and coerced they were not restrained and coerced in exercise of their Section 7 rights.

The ALJ ruled that Section 7 protects an employee’s right to both engage in or refrain from certain conduct.  The Judge ruled that in order to refrain from certain conduct “employees must be presented with a choice as to whether to engage in activity or not.”  Here, the Judge found that the workers were not confronted with a choice to engage in activity or not.

While the Union’s actions may not be a Section 8(b(1)(A) violation, how about 8(b)(4)?  Clearly the purpose of the union video tapping the Hispanic employees was to encourage those individuals to refuse to work for the non-union employer. This decision is another victory for unions and the questionable tactics often employed by organized labor and one that merit based firms and neutral secondary employers should obvously be concerned about.

The National Labor Relations Board’s decision in United Brotherhood of Carpenters and Joinders of America, Local Union No.1506 (Eliason & Knuth of Arizona, Inc.)  355 NLRB 159 has received a great deal of discussion after the Board held that “bannering” was a “non-coercive” activity that did not violate Section 8(b)(4)(ii)(B) of the NLRA.  For those wondering what the current NLRB does consider coercive, the NLRB’s recent decision in Southwest Regional Council of Carpenters (Silverline Construction) provides clear guidance.  A copy of the NLRB’s decision can be downloaded here:  Board Decision

There the NLRB found that the Carpenter’s Union restrained and coerced the rights of employees of a merit shop subcontractor, Silverline Construction, Inc.,  when they engaging in the following acts:

  • pushing and shoving Silverline employees;
  • kicking Silverline employees’ lunchboxes out of their hands;
  • tackling, kicking, shoving, or punching Silverline employees;
  • threatening Silverline employees with physical harm by challenging them to fight;
  • surveillance of Silverline employees by videotaping them as they enter job sites;
  • throwing objects at Silverline employees;
  • in the presence of employees, throwing objects at Silverline supervisors;
  • in the presence of employees, pushing and shoving Silverline supervisors;
  • in the presence of employees, assaulting and choking a Silverline supervisor;
  • in the presence of employees, threatening Silverline supervisors with physical harm by challenging them to fight;
  • in the presence of employees, threatening a supervisor of a subcontractor of Silverline with physical harm by challenging the supervisor to fight;
  • assaulting employees of a subcontractor of Silverline by striking, punching, and grabbing them;
  • in the presence of employees, assaulting supervisors of a subcontractor of Silverline by striking, punching, and grabbing them.

Thankfully, the Board has given us clear guidance on how far a union who is in a “labor dispute” with a contractor can go before they will be sanctioned.