BNA Daily Labor Report: Giant Rat Is Free Speech
February 9, 2009: A Lawrence Township, N.J., ordinance that was applied to prohibit a union from displaying a 10-foot tall balloon in the shape of a rat as part of a labor protest on a public sidewalk outside a construction site violates the First Amendment right to free speech and is overbroad, the New Jersey Supreme Court ruled unanimously Feb. 5 ( State v. DeAngelo, N.J., No. A-73-07, 2/5/09).
Overturning the conviction of Wayne DeAngelo, an assistant business manager for International Brotherhood of Electrical Workers Local 269, the supreme court found that the sign ordinance is content-based, because it favors commercial over noncommercial speech and allows signs displayed only by certain persons or entities and only for certain purposes.
Applying the strict scrutiny standard of review applicable to content-based restrictions, the appeals court found that the sign ordinance “does not fairly advance any compelling governmental interests” and is not “narrowly tailored” to target the source of the harm it seeks to prevent. Justice John E. Wallace, writing for the supreme court, also found that the ordinance is overly broad because it virtually eliminates “an entire medium of expression without a readily available alternative.”
Chief Justice Stuart Rabner and Justices Virginia A. Long, Jaynee LaVecchia, Barry T. Albin, Roberto A. Rivera-Soto, and Helen E. Hoens joined in the opinion.
IBEW Protested Use of Nonunion Contractor
On April 5, 2005, IBEW Local 269 engaged in handbilling on the public sidewalk outside the site of a former warehouse that was being retrofitted to house a Gold's Gym. The union was protesting Gold's use of a nonunion electrical contractor that was paying its workers less than the Local 269 area standards for wages and benefits. The union also displayed a 10-foot inflated rat with no writing on it. Wallace found in the supreme court decision that a rat is “a symbol of labor unrest.”
Gold's Gym called the township authorities, and a police officer who arrived on the scene told the union leaders to remove the rat balloon because it violated a local ordinance. The union participants initially removed the rat balloon, but the gym again called the police 45 minutes later to report that the rat was back. The police officer issued a summons to DeAngelo, an assistant business manager for Local 269 who was the senior union official on the scene.
The township sign ordinance prohibits: “Banners, pennants, streamers, pinwheels, or similar devices; vehicle signs; portable signs, balloon signs or other inflated signs (excepting grand opening signs); and searchlights (excepting grand opening signs), displayed for the purpose of attracting the attention of pedestrians and motorists.” But the ordinance includes a number of exceptions for temporary signs identifying contractors and developers at construction sites; announcing grand openings, business relocations, and real estate sales; displaying political messages; advertising public functions and fundraising events; and announcing yard and garage sales.
A judge in the Lawrence Township Municipal Court conducted a trial, found DeAngelo guilty of violating the sign ordinance, fined him $100, and charged him $30 for court costs. He appealed to the Mercer County Superior Court, which conducted a trial de novo and again found DeAngelo guilty and imposed the same penalty.
The New Jersey Superior Court's Appellate Division affirmed the conviction, ruling that the ordinance is not preempted by the National Labor Relations Act, does not violate the First Amendment right to free speech, is not void for vagueness, is a content-neutral restriction, and is not selectively enforced against unions (930 A.2d 1236, 182 LRRM 2743 (N.J. Super. Ct. App. Div. 2007); 179 DLR AA-1, 9/17/07). One judge dissented on the free speech issue, saying the ordinance is a content-based restriction.
DeAngelo, who is still an assistant business manager for the union, recently was elected to serve in the New Jersey General Assembly.
Speech on Public Issues Entitled to Most Protection
Wallace said the U.S. Supreme Court has recognized that the First Amendment reflects “a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide open.” He found that when speech involves public issues, government must allow the widest room for discussion and the narrowest range for its restriction.
Governments “may impose stricter regulations on commercial speech than on non-commercial speech,” Wallace said. He explained that different limits apply to protected speech depending on the forum where it takes place. “Public streets, parks, and sidewalks are traditionally public forums” where the government has a “very limited” ability to restrict expressive activity, he said.
The U.S. Supreme Court has held, Wallace said, in a traditional public forum, such as the sidewalk in this case, the government may enforce a content-based restriction only if it is necessary to serve a compelling government interest and it is narrowly drawn to achieve that end. He also found that the government may enforce regulations regarding the time, place, and manner of expression that are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.
Laws that “distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content-based,” Wallace said. He pointed out that a plurality of the U.S. Supreme Court in Metromedia Inc. v. San Diego, 453 U.S. 490, 49 USLW 4925 (1981), “found that regulations banning non-commercial advertising while permitting significant exceptions for commercial advertising were content-based, and invalidated the ordinance.” Wallace also found that “[a] number of federal and state courts have applied Metromedia to invalidate, in whole or in part, laws or regulations that exempt ‘grand opening' displays from more general prohibitions or restrictions covering non-commercial displays.”
Town's Sign Ordinance Is Content-Based
The Lawrence ordinance, which “prohibits a union from displaying a rat balloon, while at the same time authorizing a similar display as part of a grand opening, is content-based,” Wallace said. He found that whether a sign is authorized under the ordinance is determined “only by reference to the person or entity displaying the sign” and “the purpose for which the sign is displayed.” He also found that the town ordinance, like the regulations in Metromedia, favors commercial over noncommercial speech.
The stated goals of the sign ordinance “are to maintain an aesthetic environment, to improve pedestrian and vehicular safety, and to minimize the adverse effects of signs on property,” Wallace said. He found “[t]here is no evidence to suggest that a rat balloon is significantly more harmful to aesthetics or safety than a similar item being displayed as an advertisement or commercial logo used in a seven-day grand opening promotion.” There also is no evidence that the ordinance is necessary to serve a compelling government interest and that it is narrowly tailored to achieve that end, Wallace said.
The U.S. Supreme Court has held that a statute is facially invalid under the First Amendment if it is prohibits a substantial amount of protected speech, Wallace said. He cited Ladue v. Gilleo, 512 U.S. 43, 62 USLW 4477 (1994), in which the court held that an ordinance that severely restricted homeowners from displaying signs on their property but allowed businesses, religious groups, and nonprofit organizations to display a broad range of signs on their property was unconstitutionally overbroad. The court found that the Ladue ordinance “almost completely foreclosed a venerable means of communication that is both unique and important.”
Like the law in Ladue, the Lawrence ordinance is overly broad, Wallace said. He found that the “use of non-verbal, eye-catching symbolic speech” such as a rat balloon “represents a form of expression designed to reach a large number of people.” By forbidding signs except for certain limited purposes, the ordinance virtually eliminates “an entire medium of expression without a readily available alternative,” Wallace said.
Andrew L. Watson of Pellettieri, Rabstein & Altman in Princeton, N.J., represented DeAngelo. John V. Dember of Nerwinski, Dember & Fox in Lawrenceville, N.J., represented New Jersey.
By Susan J. McGolrick
Text of the decision appears in Section E and may be accessed here
Viewpoint: Reunifying the Labor Movement
January 30, 2009: Four years ago, U.S. unions split into two federations. Now they’re talking about getting back together.
On Jan. 7, twelve presidents from the two rival union federations—the AFL-CIO and Change to Win—and the National Education Association met to discuss forming one united federation.
Teamster General President Jim Hoffa participated in the meeting. In 2005, Hoffa took the Teamsters Union into Change to Win when the new federation split from the AFL-CIO.
The magazine Labor Notes is running a series of viewpoints on the possible reunification. Here’s what Tom Leedham, Secretary-Treasurer of Local 206 in Oregon, had to say about the possible merger.
The decision by some big unions to split from the AFL-CIO and form Change to Win in 2005 was top-down. Local union leaders were not consulted, much less rank-and-file union members.
Now leaders at the top appear to be moving toward reunification—again with no involvement of local leaders or members. But neither decision has had much effect on the working men and women who pay the dues.
CTW unions typically criticized the AFL-CIO for too much emphasis on politics and not enough on organizing. Earlier discussions (some referred to it as a debate within the labor movement) centered on the structure of organized labor and the need for consolidation of unions around industry segments.
Missing from the debate was any discussion of how decisions within the labor movement are made and how the decision-makers are chosen. There were lots of comments about the need for change and stodgy, ineffective leadership, but barely a whisper about the accountability or worker involvement that real democracy would bring.
Three and a half years later, few working people could list any accomplishments of the breakup, if they’re aware of it at all. Is the talk of reunification now an indication that the problems earlier reported have been addressed?
It doesn’t seem that way. Unions that complained of too much emphasis on politics spent record amounts of political money in both 2006 and 2008.
Organizing has continued to be largely the responsibility of individual unions rather than multi-union efforts, not significantly different than prior to the split. For unions like the Teamsters that have increased organizing numbers, it’s unlikely that they would credit that success to any umbrella organization.
If everyday union members have experienced anything as a result of the split, it is likely to be weaker local and state labor organizations, which has meant less member mobilization across unions for mutual support. Jobs with Justice has had to try to fill this gap.
EFCA’S SHOPPING SPREE
There may be new and compelling reasons to rebuild one “House of Labor.” The Employee Free Choice Act, if passed in its current form, will lead to more union members, but it will also motivate employers to shop for compliant unions.
At the first sign of legitimate organizing, they’ll rush to sign up their employees with corrupt or company-oriented unions rather than having to deal with honest, more militant labor organizations. A new federation must establish a strong and fair judicial process to minimize employers’ ability to union-shop.
Reunification seems to be on the table primarily because President Obama has expressed a preference for dealing with just one federation. We should insist that the president listen to diverse voices of labor, not just one top leader.
Mending the split will, however, give cover to leaders deserving of criticism. It’s rare indeed for a federation president to openly criticize a member organization or its leadership.
Clearly at this time of challenge, labor needs more inclusion, more debate, and more accountability. Without these basic democratic concepts we risk finding ourselves in the same position three years from now.
Tom Leedham is the Secretary-Treasurer of Teamsters Local 206 in Oregon.
Read more at LaborNotes.org.
What do you think? Click here to share your opinion with Teamsters for a Democratic Union.
Solis Deflects Questions On Card-Check, Right-to-Work
January 21, 2009: Secretary of Labor-designate Rep. Hilda Solis (D-Calif.), said it is "premature" for her to offer opinions on issues including right-to-work laws and so-called "card-check" legislation.
Click here to read more.
How the Employee Free Choice Act Would Help Our Union Organize
January 20, 2009: Workers who try to join our union get threatened and sometimes even fired by employers who want to stay union-free.
|In December, workers at the Smithfield meat plant in North Carolina voted to unionize after a 16-year long campaign. The Employee Free Choice Act would enable more such victories.
Click here to sign a petition supporting EFCA.
Share your thoughts on EFCA with TDU.
In December, workers at the Smithfield meat plant in North Carolina voted to unionize after a 16-year long campaign.A proposed law called the Employee Free Choice Act would make it easier for workers to join a union—and make employers pay when they break the law.
The Employee Free Choice Act would give workers the right to join a union after a majority of them sign cards saying they want representation. Employers who retaliate against pro-union workers and delay bargaining a first contract would face harsher penalties.
The proposed law has the support of Barack Obama and a majority of new Senators and Congressmen.
What the Law Will Do
Right now, workers who want to organize a union have to go through a lengthy election procedure where employers are free to spread lies about unions, intimidate pro-union workers, and delay the process.
A study by Cornell University researcher Kate Bronfenbrenner found that when workers try to organize, 25 percent of employers fire at least one pro-union worker and 51 percent of employers threaten to close down the worksite.
Even after workers vote to join a union, many employers try to keep workers from gaining a first contract by bargaining to impasse—32 percent of new bargaining units fail to get a first contract within a year of voting for the union.
The new law would strengthen protections for workers trying to organize. Here’s how:
- Workers fired for organizing will get triple back pay, and employers could have to pay up to $20,000 per incident when they break the law.
- The boss must recognize the union after a majority of workers sign cards.
- If the company tries to prevent workers from getting a first contract, the union can send the contract to an impartial arbitrator after one year.
Reversing Union Decline
U.S. unions have been shrinking. In 1980, 23 percent of workers were in unions. Now that number is down to just 12.1 percent.
The Teamsters Union is in a strong position to grow. Our core industries of trucking and warehousing can’t be sent overseas.
Our union has already used card-check neutrality agreements—deals similar to the proposed new law—to bring new members into our union at UPS Freight, First Student school bus drivers, and wastehaulers in Minneapolis. This past year 40,000 new workers joined the Teamsters.
But those companies are the exception, not the rule. “I’ve seen bosses use every dirty trick to try to keep the Teamsters out,” said Enrique Martinez, a union representative with Local 805 in New York, who has participated in several organizing drives.
“They tell workers the shop is going to close down. And they fire the most pro-union workers to scare the rest.”
The new law could make it easier for the Teamsters Union to target the nonunion competition in our core industries—companies like FedEx Freight and Con-way. We need a union plan to make that happen.
“We need to make employers pay when they break the law,” Martinez said. “But even with the new law, organizing won’t be easy. You have to train new members about how the union works and why they’ve got to participate. When members are educated and united, they can fight for contracts that match our Teamster standards.”
One Million Strong
Corporate America has already launched a campaign to stop the new law.
Unions and community groups have launched a national campaign to send one million signatures to the new Congress and President in support of the Employee Free Choice Act.
Our union has joined the effort. You can too.
Click here to sign the petition and find out how you can support the new law and help our union rebuild Teamster Power.
New York Times: Labor Calls for Unity After Years of Division
January 8, 2008: The presidents of 12 of the nation’s largest labor unions called Wednesday for reuniting the American labor movement, which split apart three and a half years ago when seven unions left the A.F.L.-C.I.O. and formed a rival federation.
The union presidents issued their joint call after the transition team for President-elect Barack Obama signaled that it would prefer dealing with a united movement, rather than a fractured one that often had two competing voices.
Click here to read the full article at the New York Times.
New York Times: The Labor Agenda
January 6, 2009: There is no doubt that President-elect Barack Obama has chosen a labor secretary who could be a transformative force in a long-neglected arena. The question is whether he will let her.
Hilda Solis, a United States representative from Southern California, is the daughter of immigrant parents with union jobs. She has been an unfailing advocate of workers’ rights during eight years in Congress and before that, in California politics.
Ms. Solis has been a leader on traditional workplace issues, like a higher minimum wage and an enhanced right to form unions. She also has helped to expand the labor agenda by sponsoring legislation to create jobs in green technology, and in her support for community health workers and immigration reform.
Click here to read the complete editorial from the New York Times.
San Francisco Chronicle: Happy Holidays for Laundry Workers—Back Wages
December 19, 2008: Five years after filing suit against her employer for failing to pay wages mandated by Hayward's living wage law, a former laundry worker in San Leandro opened an envelope Thursday and pulled out a check for $17,847.33 in back wages and interest.Click here to read more at The San Francisco Chronicle.
Hard-Fought Victory at Smithfield Comes at Last
December 12, 2008: A long fight at the world’s largest pork processing plant has come to an end, as workers at the Smithfield Tar Heel plant voted to join the United Food and Commercial Workers.
The fight to organize the Tar Heel plant began from day one, when Smithfield opened the facility in 1992. In 2006, the NLRB ruled that Smithfield was guilty of unfair labor practice during two unsuccessful organizing drives in the 1990s, rendering the elections results illegitimate.
Following the verdict, UFCW initiated the [email protected] campaign, urging boycotts of Smithfield products and mobilizing publicly against the company. The company retaliated by filing a RICO suit against UFCW, Jobs with Justice and the Change to Win federation, the settlement of which resulted in this week's election.
Read a statement from the UFCW.
Read more at BusinessWeek.
Victorious Workers at Republic End Sit-In
December 11, 2008: Workers at the Republic Windows and Doors factory in Chicago ended their week-long occupation last night, chanting "we did it!" as they left the plant. The deal includes $1.75 million in severance and back pay and two months of health coverage, affecting some 240 members of United Electrical Workers Local 1100.
“We fought to make them pay what they owe us, and we won,” remarked Local 1100 leaders regarding the settlement, which members approved unanimously.
The tactics of occupying their plant and mounting a public campaign against Bank of America, which had cut off its line of credit to Republic, drew wide public support and were central to what has been called a historic victory for the labor movement.
Read more at the United Electrical Workers’ website.
Read more at Reuters.
Chicago Workers Continue Factory Occupation
December 9, 2008: Support has grown for workers at Republic Windows and Doors, as their sit-down protest enters its fifth day.
Talks between Bank of America, Republic and its employees, 240 of whom are members of United Electrical Workers (UE) Local 1100, have continued to result in a stalemate.
The workers have been occupying the plant since Friday, when Republic announced it would be closing operations at once—without paying back-pay, vacation pay or front-pay owed under the WARN Act.
Yesterday, Illinois Gov. Rod Blagojevich, Sen. Dick Durbin and Chicago aldermen spoke out in support of the Republic workers during a visit to their Chicago plant. Gov. Blagojevich has ordered state agencies to suspend hundreds of millions of dollars worth of business with Bank of America, until a settlement between Republic and its employees is reached.
The pressure mounting against Bank of America, which has thus far turned down multiple requests by Republic to restore its line of credit, is not only coming from politicians but also from grassroots allies.
This Monday saw the first round of actions held in solidarity with the workers at Republic, including a picket staged by immigrants’ rights and community activists in Chicago outside of a Bank of America branch. Teamsters have been joining rallies in support. Jobs with Justice has been working to organize pickets at Bank of America locations across the country.
Click here to read a statement from the United Electrical Workers on the struggle.
Click here to read an article from the Chicago Tribune.
Click here to read an article from the Chicago Sun-Times.