Should Organizers of Rowdy Union Pickets Be Prosecuted?

In cities like Philadelphia, trade union picketing of a non-union construction site is common place.  Mostly the picketing is tame,.  Occasionally, the unions step it up a notch and bring out a rat or two.  However, sometimes, like in the Goldtex dispute, these protests become rowdy, disruptive, and violent.  Often the owner of the non-union project is required to obtain an injunction to stop the picketers from destroying property or prohibiting access to the job site.  However, much to the chagrin of the project owner and the non-union contractor facing the pickets, rarely are any members of the picketing trade unions held criminal responsible for their actions.  In fact, in a city like Philadelphia it would be unprecedented if the District Attorneys Office brought criminal charges against union leaders who organized a protest of a non-union job site.

Not so in the City of New York, as reports the New York Times,  where two members of the local Laborers Union were recently indicted on charges of coercion, inciting to riot, and unlawful assembly. According to the Times, “[t]he indictment of the two union organizers is the latest chapter in a six-year battle between the construction unions and a prolific hotel developer and his contractors over substandard wages.”

The Manhattan District Attorneys Office’s decision to prosecute raises the question as to whether prosecution of organizers of over the line union protest should be more common place.  Obviously, prosecution of persons for activities which are in part protected by the First Amendment is concerning.  However, it often appears that unions are given a free pass for actions that would otherwise land someone in jail.  This case is worth following for those two competing concerns.  Moreover, if the DA is successful this case could represent a further shift in public opinion against unsavory union tactics.

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On Offense: Carpenters Get Agressive with Letters to Neutral Employers

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. 

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