Disgruntled unions are anything but unimaginative. Sometimes it is a ubiquitous inflatable rat. Other times it is a banner advertising a "labor dispute." And sometimes it is a full blockade of project that causes a complete project shutdown.
Whether these antics are merely a nuisance or are causing actual economic harm, no developer is happy to see a trade union airing its "labor dispute" at a project.
Developers are often both ill prepared to deal with construction site picketing and misinformed about what can be done about it. However, with the right standard operating procedures in place, picketing can be controlled to minimize impacts on the project.
The first step in dealing with a job-site labor issue is for decision makers in management to ascertain the exact nature of the activity. Often, less experienced job personnel will overstate the nature of the union's actions or panic when faced with even a mild protest.
If a union is not interfering with the progress of the work at the project, sometimes the most prudent course of action is to simply ignore them. Union activity that might be left ignored could be a few union members handing out flyers about the project and its subcontractors (so long as the flyers are not overtly slanderous) or standing with signs protesting "unfair wages."
However, if union members block access to a project site, publicize patently false and slanderous information about the project, or threaten violence, property damage or economic harm, then legal action is warranted.
In either case, once management fully grasps the extent of the labor activity, management should contemporaneously document the nature of the activity in its daily reports or foreman's logs. Videotaping or photographing the protest is not prohibited in the case of a blockage of access to the project or threatened violence, but management should confirm with counsel before doing so because it may cause the developer to inadvertently run afoul of federal labor laws.
If it is determined that the matter is not a mere nuisance, then counsel will have to get involved. Much to the frustration of many developers, local police will not always provide assistance in gaining your workforce access to a construction site that has been blocked by a union picket line. Therefore, it will be necessary for a court to issue an injunction against the labor union that is blocking access to the site or causing property damage.
In Pennsylvania, an injunction involving construction site picketing can be obtained in as little as one day. Because the union has a general First Amendment right to air its grievance, the injunction cannot act as a blanket prohibition on the union's picketing. The injunction can regulate the location of the protest, such as creating a buffer zone between the protestors and the site's entrance, and the extent of the picketing, such as limiting the number of union members participating in the protest.
Even when a union stops short of blocking access to a site, developers can also control the location of the picketing by setting up a dual-gate system. A dual-gate system is where a developer establishes one entrance to the project for the subcontractor that is the focus of the picketing and another for all other trades.
If the dual-gate system is properly set up, under federal labor law, the union must limit its picketing at or near the gate used by the picketed subcontractor. When a union fails to honor a properly set up dual-gate system, a developer can file a complaint with the National Labor Relations Board (NLRB), which is the federal agency that adjudicates unfair labor practice claims.
Federal law also prohibits a union from enmeshing a neutral employer in a labor dispute with a primary employer, which is sometimes referred to as a secondary boycott. A neutral employer is one that does not directly employ individuals that are performing work the union wants to perform. Real estate developers almost always are neutral employers. General contractors and subcontractors that do not perform the type of work the protesting union performs can also be neutral employers.
Unions violate federal labor laws when they threaten or coerce a developer where the intent is to get the developer to assign work to a union contractor rather than a nonunion contractor working on the project. For example, if a union threatens a developer with a picket line unless certain work on the project is assigned to a union firm, the union could be violating federal labor law. Here, too, a developer that is subjected to such threats can bring a claim with the NLRB.
While the NLRB can seek host of remedies against a union that violates federal labor law, the Board cannot recover monetary damages for a developer that has suffered harm because of a union's illegal conduct. For that, developers must seek redress in federal or state court.
Federal law permits a developer to bring an action against a union for damages it sustained as a result of the union involving a neutral developer in a labor dispute. State law permits a developer to sue a union for making defamatory statements to the public about the developer.
When properly prepared, most labor disputes can be managed without involving the courts or the NLRB.
