Thursday, October 30, 2014

Inflatable Rats And The First Amendment

In a Decision dated October 27, 2014, the United States District Court for the Eastern District of New York (Bianco, J.), refused to ban a Union from using inflatable rats to communicate its objections to the hiring by an Employer of a supervisor who had run a non-union business previously. The Union, Asbestos, Lead, and Hazardous Waste Laborers' Local 78, began displaying the inflatable rats at various worksites of the Employer, Microtech Contracting Corporation. The case is Microtech Contracting Corporation v. Mason Tenders District Council of Greater New York, et al., Case No.: 14-CV-4179.

The Employer brought suit against the Union and sought a preliminary injunction.  The Court refused to issue the injunction and held that use of the inflatable rats did not violate the no-strike provision of a collective bargaining agreement (the “CBA”) between a contractor’s association and the Union; the employer was a member of that association and was bound by the terms of the CBA. 

In refusing to grant the injunction, the Court held that the Norris-LaGuardia Act of 1932 deprives federal courts of jurisdiction to issue restraining orders or injunctions in cases involving or growing out of labor disputes, except where the strike violates an express or implied promise not to strike, and where the underlying issue is arbitrable. The Court held further that preventing the Union from using the inflatable rat would violate the Union’s First Amendment right to free speech.

The no-strike provision contained in the CBA prohibits “strikes, walkouts, picketing, work stoppages, slowdowns, boycotts or other disruptive activity of a similar nature at a job site of or otherwise directed at, any employer [emphasis added].” Although the Court stated that First Amendment rights can be surrendered in a CBA or some other contractual agreement, it held that the Union did not waive those rights in this case.

The Court held that use of the inflatable rats did not constitute “disruptive activity” under the no-strike provision because that term was qualified by the words “of a similar nature.” In the Court’s view, that qualification refers to activities similar to strikes, walkouts, picketing, work stoppages, slowdowns, or boycotts, but not to the use of an inflatable rat to publicize or otherwise broadcast objections to an employer’s business practices.  It appears that if the words “of a similar nature” were not contained in the clause, then use of the rats may have been prohibited as violative of the CBA.  Interestingly, the Court stated that even if use of the rats were prohibited by the no-strike provision, the dispute was not subject to the grievance clauses in the CBA because it did not involve an "interpretation and application" of the agreement.  Rather, it involved the Union's objections to the Employer's hiring of a supervisor with a non-union history.

While there is room for disagreement with the Court’s Decision, perhaps, as a practical matter, the Employer should consider use of inflatable “cats” on its jobsites which stand much taller than the Union’s inflatable rats.  After all, free speech is free speech.       

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