Judge punctures Local 150 union's try to sue NLRB for moving to limit 150's use of inflatable rats to protest

By Scott Holland | May 17, 2019

Billie Grace Ward from New York, USA [CC BY 2.0 (https://creativecommons.org/licenses/by/2.0)]

CHICAGO — A federal judge has deflated a legal action accusing the National Labor Relations Board of violating a union’s rights to free speech by moving to stop the union from using inflatable rats and banners to continuosly protest "rat contractors."

The root issue is a dispute between International Union of Operating Engineers Local 150 and Donegal Services, a construction and demolition company. According to an opinion Judge Ruben Castillo filed May 15, Local 150 has protested at various Donegal work sites, including by displaying “inflatable rats and banners asserting that Donegal or one of its affiliates were harboring a ‘rat contractor,’ ” Castillo wrote.

Donegal and other businesses filed unfair labor practices with the NLRB, alleging secondary boycott activities the National Labor Relations Act prohibits. On Dec. 1, NLRB Region 13 Director Peter Sung Ohr filed a federal action asking the court to bar Local 150 from using the rat and banners “despite acknowledging that certain NLRB precedents would seem to allow it,” according to Castillo.

Local 150 insisted its conduct was federally protected speech and then brought a counterclaim against Ohr, the NLRB and its general counsel Peter Robb, saying the unfair labor practice complaint and pursuit of injunctive relief violated the union’s First, Fifth and 14th amendment rights.

The NLRB moved to dismiss the counterclaim for lack of jurisdiction and failure to state a claim, arguing the federal labor law doesn’t “provide for the injunctive relief or monetary damages that Local 150 seeks,” Castillo wrote.

Castillo said the NLRB pointed to “a long line of precedent" that says district courts can't review or supervise "the NLRB’s administrative process.”

Although the U.S. Supreme Court defined an exception, in a 1958 opinion in Leedom v. Kyne, the NLRB defendants say Local 150’s claim fails to meet those narrow requirements. He also wrote Local 150 failed to address if it stated a Fifth Amendment claim and conceded the 14th Amendment doesn’t apply to the NLRB.

If the union disagrees with the NLRB’s ruling, it said, the next step is to appeal the decision to the U.S. Seventh Circuit Court of Appeals. But the union said it wasn’t asking the federal court to interfere with the NLRB hearing process, only to bar the NLRB from using its own injunction requests to sideline the rats and banners.

Castillo said his only statutory authority is to determine if the NLRB has reasonable cause to believe the union violated the NRLA, and if an injunction is proper. He said Local 150’s counterclaim incorrectly seeks a remedy because it isn’t allowed to “bypass the specific method that Congress has provided for reviewing adverse agency action,” according to the 1983 Seventh Circuit opinion in General Financial Corp. v. Federal Trade Commission.

“It has long been settled in the Seventh Circuit that the assertion of a constitutional claim does not change this fundamental premise,” Castillo wrote, adding that Local 150’s claim doesn’t meet the Kyne exception because the union didn’t allege the NLRB violated a “specific and unambiguous” NLRA provision or the Constitution.

Rather, the NRLA requires NLRB officials to seek temporary injunctions for unfair labor practice charges that allege unlawful secondary activity targeting a neutral entity, so long as the NLRB director believes the charge is true.

“To be clear, this is not to say that Local 150 might not prevail in its First Amendment argument,” Castillo wrote, saying he concluded “only that its argument does not meet the Kyne exception” to the statutory limit on his jurisdiction to rule on the matter.

Castillo dismissed the counterclaim..

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Organizations in this Story

International Union of Operating Engineers Local 150 National Labor Relations Board U.S. District Court for the Northern District of Illinois

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