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
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
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
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
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
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.