Union Members Allowed to Protest on Property Not Belonging to their Employer

Musicians should have been allowed to stand on private property while they protested a ballet company’ use of recorded music inside a performing arts center. This decision shows that the right of employees to engage in peaceful and non-disruptive labor activities may trump the interest of an employer to control access to its private property.

The company said the musicians could not hand out leaflets on sidewalks outside the building where they normally play music.

The Tobin Center leases performance space to the San Antonio Symphony, San Antonio Ballet, San Antonio Opera. AFM Local 23 has a collective bargaining agreement with the symphony. Union musicians perform live music for some, but not all, of the ballet company’s performances.

The ballet group was scheduled to perform Tchaikovsky’s “Sleeping Beauty” with recorded music. Union members stood on a sidewalk near the auditorium entrance and handed out leaflets before the performance urging the public to demand live music. “You’ve paid full price for half of the product,” Local 23 argued in the leaflets.

Tobin Center staff told the union members they had to leave the center’s private property. The Local 23 members moved across a handed out several hundred leaflets to arriving spectators. The union filed an unfair labor practice charge alleging the center violated the National Labor Relations Act by expelling them from the front of the auditorium.

The musicians were not employees of the Tobin Center, the ALJ said, but they regularly worked in the performance arts center and barring their leafleting violated the NLRA.

There was no evidence of overcrowding or disruption at the Tobin Center, and no support for the center’s argument that if it is a “soft target” for terrorists, the ALJ said. The musicians were not carrying backpacks that might conceal explosives, and sending the union members across the street from the Tobin Center would not likely reduce any danger from terrorism, he said.

Terrorists? Really? I’ve heard some lawyers make outlandish arguments – especially when the law is not on their said, but comparing violinists to terrorists for passing out paper…..

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 843-3041 or emailing him at Matt@MattAustinLaborLaw.com.

“No Loitering” Policy: Unlawful says NLRB

Loiter (verb): to stand or wait around idly or without apparent purpose.

Many workplaces prohibit off-duty workers from loitering at the worksite. These policies make great sense. They decrease the likelihood of wage and hour violations by providing off-duty employees the opportunity to claim they were working, but not being paid for their work. They also decrease the risk of an off-duty employee being injured at work and thus file workers compensation claims. Most of the handbooks I have reviewed have “no loitering” policies, and my clients strictly enforce them.

Well, the NLRB recently determined that a no loitering policy at a restaurant violated the National Labor Relations Act because it prevented employees from engaging in concerted activities for the purpose of collective bargaining or other mutual aid or protection, i.e. the right to handbill.

The NLRB held that “an employer’s rule denying access to off-duty employees to all areas of its premises violates the Act unless there are legitimate business concerns to justify the rule or policy.” The Board further found that the rule was overly broad and ambiguous because it did not define “loiter” or “hang around,” and could reasonably be interpreted to prohibit employees from engaging in protected activities, such as handbilling. Also, the rule contained no exception for protected activities like handbilling (despite the Board previously ruling several times that such disclaimers do not turn an unlawful policy into a lawful policy).

To all the employers who have a similar policy in their handbook, I have included the definition of loitering at the top of this post. Copy and paste it into your handbook. Then add a (useless?) disclaimer that the policy does not cover protected activity. Time for my disclaimer: What I just said is not legal advice; your no loitering policy may still violate the NLRA even after doing what I said.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.

Teamsters Picket Jack Nicklaus’ Memorial Golf Tournament

NetJets’ (headquartered in Columbus, Ohio) workers who are represented by Teamsters Local 284 (Columbus, Ohio) launched an informational picketing campaign at the PGA’s Memorial Tournament (Columbus, Ohio).

The Teamsters represent aircraft mechanics, maintenance control, aircraft fuelers, aircraft cleaners, and stock clerks at NetJets. The union is mad that the company is not giving into its demands during negotiations for a successor collective bargaining agreement. One of the arguments is that NetJets does not employ enough mechanics, i.e. workers who would be required to join the union and pay dues to the union. Another is that NetJets mechanics do not make $15 per hour while alleging the CEO of NetJet’s parent company (Berkshire Hathaway Energy) received $17.5 million in compensation.

The public shame campaign, which was held at the non-commercial air field where some NetJets planes land when transporting players and fans to the PGA golf tournament, is interesting. First, the Teamsters chose to picket The Memorial because several NetJets customers will be flying NetJets private aircraft to the tournament. Many of these customers make the same or more than $17.5 million per year and run their own companies. For them, they understand labor costs, union propaganda, and will likely not stop using NetJets because of this flyer. In fact, many can’t because they’re locked into multi-year fractional ownership agreements.

So in the end, what did Teamsters Local 284 get for spending members’ dues money printing flyers and probably paying protesters (who may not have even been Teamsters members)? Not $15/hour for workers. Not more dues-paying members. Maybe a participation trophy for showing up?

According to NetJets, “The Teamsters today issued more misleading claims about NetJets maintenance operations. These claims are intended to advance the union’s agenda in negotiations over a new contract for approximately 215 represented maintenance professionals employed by NetJets. Their approach does nothing to help the parties reach an agreement.”

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.

Union Trying to Organize Casino Workers Guilty of Bullying

Unite Here tried to organize workers at an Indiana casino to join the union. Part of the organizing strategy was to harass customers of the casino at their homes and businesses through a secondary boycott. A secondary boycott is a tactic used by unions to stop a neutral third party (casino customers) from doing business with the target of the union’s labor dispute (the casino). A fine line exists between free speech protected by the First Amendment of the U.S. Constitution and an illegal secondary boycott. According to the judge, Unite Here went way over that line.

Here, the union frequently visited customers of the casino at their homes and businesses. For example, the union entered a restaurant owned by casino patrons and began questioning the restaurant’s customers about the casino habits of the owners. The union refused to leave until the owners threatened to call the police to intervene.

For another example, the union members distributed leaflets to neighbors within a block of one of the casino’s patrons. The leaflets described him and his wife as being regular customers of the casino. This customer alleged that his reputation in the neighborhood had been diminished, neighbors and family members questioned whether he had a gambling addition or problem, and one neighbor stopped doing business with him since the leafletting commenced.

According to the judge, there is no doubt that the union illegally tried to coerce casino patrons from going to the casino.

Matt Austin who owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.

 

Calling the Police Over Handbilling in Front of Workplace Unlawful Because City Previously Designated Area as Public Right of Way

The United Food and Commercial Workers union tried to organize workers at a Hillshire Brands Co. facility in Texas. As part of its campaign, non-employees handed out pamphlets at the end of the company’s driveway. The organizers stood on a 10-foot wide corridor designated by the city as a public right of way. The Company’s human resource manager called the police and claimed the organizers were blocking traffic. The police responded, accused the organizers of trespassing, issued criminal trespass warnings, and shooed the organizers away.

The union filed an unfair labor practice charge over this incident. At trial, the National Labor Relations Board’s Administrative Law Judge determined that calling the police was unlawful – without regard to the fact that the police themselves issued the warnings and shooed the organizers away. Had the handbillers not been on a public corridor, police involvement would have been justified. This ruling now places the burden on companies to know whether union organizing activity, handbilling, picketing, a blown up rat, etc. is on property designated by the city as a public right of way before taking any action against the demonstrators.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Electrical Workers Union Sparks Lawsuit Over Banner and Flyers at Hospital that Retained Non-Union Construction Company for Expansion

I have been involved in a few of these union demonstrations and they walk a very fine line between being protected under the First Amendment of the U.S. Constitution as free speech and being unprotected and thus unlawful. Since the difference between lawful free speech and unlawful antics is razor thin and heavily fact-dependent, I will not opine on the merits of the lawsuit.

In 2012, a hospital in Las Vegas hired Kitchell Construction to build an expansion to its Siena Campus hospital in Henderson, Nevada. Kitchell Construction is non-union and hired a non-union contractor to handle all electrical work at the site. The electrical union was upset by this and protested.

The local chapter of the International Brotherhood of Electrical Workers (IBEW) union allegedly defamed a Las Vegas hospital that hired non-union contractors by posting a sign: “Danger 1 out of 10 People Die at This Hospital” on a banner that contained images of a coffin and two tombstones. The union also passed out flyers that stated: “1 out of 10 people DIE at Siena Campus, Death among patients with serious treatable complications.” At the bottom of the flyers was the phrase: “Brought to you by the IBEW Union Local 357 Information Department.” The flyers also referred readers to a website, HospitalSafetyScore.org, which does not substantiate the union’s claims. According to the Hospital, the information is completely false.

Trained labor professionals will notice the importance of the phrase “brought to you by the IBEW Union Local 357 Information Department,” since it is generally lawful for the union to disseminate such rhetoric for information purposes, only. Whether this phrase will cloak the banner, message, graphics, and passing out of flyers is not yet answered.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

Overview of Union Access Rights to Shopping Centers

A union’s level of access to remain on-site of a shopping center depends on weighing the employer’s private property rights against employees’ Section 7 rights.

Unfortunately, private property interests may be required to yield to the trespassory activity of non-employee union organizers when the union lacks a reasonable alternative for communicating with employees or when the employer discriminates against the union by allowing similar activity by other non-employees.

One example of this balancing of rights involved striking employees at a restaurant located on the first floor of an office building. Employees picketed and handbilled in the foyer of the restaurant until ordered to leave. The Board ruled the employees’ Section 7 rights outweighed the owner’s property rights opining that the union’s message could be effectively communicated only if the pickets had access to the employer’s property. Additionally, the Board claimed that restaurant customers became identifiable only as they entered the restaurant so access to the restaurant entrance was necessary to reach the intended audience.

For another example of unions trumping private property rights, handbillers were corralled from walking the parking lot and sidewalks of a store to spread their message not to purchase the company’s products. Rather than roam freely, the company tried to limit the handbillers to a corner of the parking lot. According to the National Labor Relations Board, the company unacceptably diluted the effect of the union’s message by attempting to limit the handbilling to specific areas.

The classic example of property owners being forced to allow unions to demonstrate outside their store is when the store owner allows other companies to solicit store patrons for other purposes. If Girl Scouts are allowed to sell cookies, or if the Salvation Army is allowed to ring its Christmas bell, the unions will most likely be allowed to pass out anti-company propaganda on the company’s doorstep.

Matt Austin is a Columbus, Ohio lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. Austin Legal’s Concierge Legal Services program is relied upon by companies to remain compliant and competitive. If you have employees, you need Concierge Legal Services. You can call Matt at (614) 285-5342 or email him at Austin@LaborEmploymentOSHA.com.