Judge: Union largely within free speech rights to target Ameristar Casino patrons over boycott

By Scott Holland | Sep 1, 2018

A federal judge in Chicago has weighed in again on the issue of whether workers at Indiana’s Ameristar Casino put undue pressure on patrons as part of an ongoing dispute, dismissing more allegations a union illegally harassed casino patrons to coerce them to participate in a union-sponsored boycott as part of a labor dispute with the casino.

U.S. District Judge Manish Shah issued an opinion Aug. 24 granting partial summary judgment in favor of Unite Here Local 1, which represents about 180 bartenders, servers and cleaners at Ameristar Casino East Chicago. 

The casino accused the union of targeting regular customers to pressure them to join a consumer boycott, which the casino and some of the customers argued was illegal harassment. Casino patron Lisa Jung, along with several other regular Ameristar customers, joined the casino in the complaint alleging the union violated the National Labor Relations Act’s prohibition on coercive secondary labor activity.

The boycott started in 2015 after several years of negotiations failed to produce an agreement on health insurance benefits. Jung said Local 1 sent her mail about the boycott and left leaflets on doors in her neighborhood describing her as a regular customer who would not support the boycott. She said they met her at the restaurant she owned in March 2016, a session that ended when she threatened to call police.

The complaint further details Jung’s interactions with the union, as well as experiences of three other casino customers — Monir David, Larry Kinosita and Dennis Tossi — who say the union committed coercion in violation of NLRA guidelines, including mailing letters about them to their neighbors and distributing leaflets about them outside their businesses or places of employment.

“Coercion is distinct from persuasion,” Shah wrote, citing boycotting or picketing as an example of coercion and distributing literature as a kind of persuasion. He added the line between the two is drawn, at least partially, “by whether the unwelcome conduct interferes with” a neutral party’s ability to conduct business. He also said the matter has to be considered in light of the union’s First Amendment protections.

Shah said the evidence David stopped patronizing Ameristar was largely inadmissible and therefore didn’t support the casino’s allegation of the union’s tactic affecting his customer status. Although the union’s tactics could have been seen as coercive, Shah said, there is no proof the union kept him from going to the casino.

Conversely, Shah said the union’s direct contact with Kinoshita was minimal. He received only one phone call and after that three postcards sent several months apart from each other.

Tossi sued the union after hanging up on one phone call. But the union only sent two postcards and representatives didn’t speak with him during two uneventful visits to his workplace. Representatives did visit his daughter’s workplace, but didn’t create any disruption that affected Tossi. Shah did agree the union’s efforts toward the CEO of Tossi’s company were tertiary, as the CEO is twice removed from the workers’ dispute with Ameristar, but still found the union’s activities to fall under protected speech.

Shah likewise said the conduct involving Jung dropped off to only occasional postcards immediately after she asked to not be personally contacted, adding, “This is true even though one of the mailings informed recipients of some unsavory findings made during a health inspection of Jung’s restaurant, the truth of which plaintiffs do not dispute.”

While the union did demonstrate near Jung’s restaurant with banners and a large inflatable rat, Shah said it did so largely in compliance with rules regulating such conduct. However, the question of whether representatives blocked customers’ access to the restaurant remains unresolved, and so Shah didn’t grant summary judgment with respect to some of Jung’s allegations — but he did say her claim the union damaged her restaurant directly was unfounded.

As a result of the ruling, Ameristar may pursue its claim the union’s alleged harassment of Jung, including its blocking the entrance to her restaurant, harmed the casino. But the remainder of the complaint was dismissed.

Ameristar and its patrons are represented by attorney Max G. Brittain Jr., and other lawyers with the firm of Schiff Hardin LLP, of Chicago.

Unite Here is represented by attorney Kristin L. Martin, and others with the firms of McCracken, Stemerman & Holsberry LLP, of San Francisco, and attorneys with the firm of Asher, Gittler, Greenfield, Cohen & D'Alba, of Chicago.

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Organizations in this Story

Ameristar Casino Hotel Asher, Gittler, Greenfield and DAlba, Ltd. Schiff Hardin LLP U.S. District Court for the Northern District of Illinois Unite Here Local 1

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