A federal judge has cleared an East Chicago casino and a group of its customers to proceed with a lawsuit against a union, saying the union’s actions to escalate its long running labor feud with the casino by personally targeting the customers with a campaign of fliers, phone calls and visits to their homes and businesses, could be considered illegal harassment going beyond mere “handbilling” and other forms of permissible persuasive speech.
While he pared back some of the counts, on Dec. 19, U.S. District Judge Manish S. Shah denied a request from labor union Unite Here Local 1 to dismiss the lawsuit brought earlier this year by Ameristar East Chicago Casino and its patrons.
“While mere conclusory allegations of damages without any factual basis are not sufficient to withstand a motion to dismiss, here the complaint has provided sufficient factual detail as to the union’s alleged conduct - including repeatedly calling Ameristar customers and refusing to stop, entering plaintiffs’ businesses and approaching patrons - and it is not a stretch to infer that such activity injured their businesses,” Shah wrote.
Ameristar and its patrons launched the lawsuit in May, saying it needed to defend the ability of its customers to visit the East Chicago casino without fear of being targeted for alleged harassment and bullying by representatives of the union.
Unite Here, which court documents indicated represents about 200 Ameristar employees in East Chicago, launched a campaign in March 2015 to encourage a boycott of the casino as part of an ongoing labor dispute. The campaign had included demonstrations near Ameristar’s entrance, distribution of leaflets to Ameristar customers in the casino’s parking facility and posting messages at local businesses.
However, the union allegedly escalated the campaign earlier this year by contacting customers, as well as the customers’ families, friends and neighbors by leaflet, in person and on their home, business and cell phones, identifying the customers as regulars and, in some instances, as “big gamblers” at Ameristar and demanding they all join the union’s boycott.
Additionally, the lawsuit alleged union representatives have entered the plaintiffs’ businesses, including shops and restaurants, allegedly disrupting business and distributing leaflets to and engaging with the plaintiffs’ customers directly, and allegedly in some instances, refusing to leave the business or stop soliciting customers until order to do so by police.
The lawsuit alleged the union’s actions were “not an effort to communicate (the union’s) primary dispute with Ameristar but rather was intended to harass and embarrass the customers and their families,” which they said, constituted illegal secondary boycotts targeting neutral parties not involved in the primary labor dispute.
In response, the union argued their activity was protected speech, amounting to little more than efforts to persuade others to join their cause.
Judge Shah, however, said the allegations from the casino and its patrons were strong enough to allow the bulk of the lawsuit to continue, noting what the casino and its patrons alleged were more than just mere encounters with protestors or advocates handing out pamphlets on a sidewalk.
Citing precedent in the U.S. Supreme Court’s 1994 decision in Madsen v. Women’s Health Center, Shah noted First Amendment free speech rights do not extend to “an unqualified constitutional right to follow and harass an unwilling listener.”
In this case, Shah said plaintiffs alleged union representatives not only called them on their phones, or visited their homes and places of business, but did so repeatedly, at times even after the target of their attempts at persuasion made clear the union representatives should stop or were unwelcome.
“Repeatedly visiting affiliates of targeted neutrals at their places of businesses after being clearly informed that the target is unpersuaded can be suggestive of trespass and harassment,” Shah wrote.
He noted “peaceful handbilling” is protected by federal law, while “harassment or repeated trespass” are not.
The judge noted this same union had been called out for criticism by the U.S. Seventh Circuit Court of Appeals for this same behavior amid past labor disputes.
“Distributing leaflets to a home appears more similar to traditional handbilling,” the judge wrote. “But repeatedly distributing leaflets at a target’s home after they have asked the union to stop, and distributing leaflets to a secondary target’s neighbors, family members, neighbors of their family members, and the offices and homes of government officials in their town - persons with no connection to the casino - raises an inference that such activity was designed to harass and coerce rather than to persuade.”
Shah did dismiss complaints from one plaintiff, noting the union’s activities against him were limited merely to distributing leaflets at his home and in his neighborhood.
And the judge also tossed assertions of invasion of privacy, saying the union’s actions in informing others of a patron’s propensity for visiting a casino does not violate any privacy standards, as visiting a casino is not a private act.
“Gambling at a casino is an activity that takes place in the public eye,” Shah wrote. “A casino is a place frequented by many people and is exposed to the public.”
Unite Here Local 1 is represented in the action by the firms of Asher, Gittler, Greenfield, Cohen & D'Alba, of Chicago, and Davis, Cowell & Bowe, of San Francisco.
Ameristar and its patrons are represented by the firm of Schiff Hardin, of Chicago.