Jottings By An Employer's Lawyer

Sunday, May 30, 2004

Enjoining Picketing Activity Because of a "Wink and a Nod" and Perhaps the Use of an Ellipsis

Although there is not a significant amount of strike activity these days, it does still happen and still employers are required to go to court to seek injunctive relief from unlawful picketing activity. Last week, the 1st Circuit had occasion to affirm the Rhode Island District court which had enjoined Teamsters Local #251. Arguing that courts are enjoined themselves to tread gingerly when considering picket line injunctions, the Teamsters nevertheless came up short. Both courts found significant that even though the local president issued instructions that the strikers were to picket in a lawful manner, what they found more telling was his conduct on the scene the next day when a train was improperly blocked. Rather than ordering the picketers to allow it to pass, he talked with the engineer and first gained his assurance that no delivery would be made that day. This conduct, plus the fact that through cell phone either the President or another senior union official was in contact at all times with the picketers, led the courts to find that the union had ratified the conduct. In the trial court's word, with a "wink and a nod." Univar, USA, Inc. v. Teamsters Local #251 (1st Cir. 5/25/04)(unpublished) [pdf]. And as a possible indication that court's don't like parties seeking to pull the wool over their eyes, the court left a pointed footnote.
1. Indeed, in quoting the allegedly "relevant" portion of the court's ruling in its Statement of Facts, the Union omits the underlined language quoted above and replaces it with an ellipsis.
And of course the underlined part was: "This activity on the part of Mr. Bairos, as president of the union, in my mind is the equivalent of [a] wink and nod. That is, it is as though he's saying to the members that it's fine to congregate as they did and to remain in place, in other words, to do as I do rather than to do what I told you to do yesterday ...."

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