Are the Union Protests at the Trolley Car Diner Legal?

Not if they constitute a secondary boycott.


Yesterday we wrote about IBEW Local 98, the electricians’ union, protesting in front of developer Ken Weinstein’s Trolley Car Diner — where, Weinstein alleges, flyers with his photograph and cell phone number were distributed. That may be bad form, and an invasion of privacy, but it’s run-of-the-mill kind of stuff from Philly unions. As far as we know, distributing the phone number is not illegal.

But the protests themselves are more open to question. Weinstein is the developer of a preservation/restoration project at 6000 Wayne Avenue, which — just to be clear — is not the address of the Trolley Car Diner. The building at that location, like many that Weinstein develops, is vacant but historical, with a Frank Furness pedigree. Weinstein is planning to turn that building into a school, and he has hired a general contractor from the area, McCoubrey/Overholser, to do the construction and to hire subcontractors to do specialized work, like the electrical.

This decision wasn’t made lightly; Weinstein has a long history of development in Northwest Philadelphia, and has employed both union and non-union labor. “We have [used union labor] typically when there’s government funding and there are strings attached,” he says. “A project like this, we’re not getting subsidies, and I’m putting a significant amount of my own money into it. I went with the lowest responsible bidder.”

“It’s unfortunate,” he adds, “because [the union is] not understanding that they’re fighting something good for the community.”

The objections to non-union labor for this project is that it “destroys area wages and benefits.” In fact, general contractor McCoubrey/Overholser pays its employees an average of $35 per hour, and offers full benefits such as health, dental, and vacation. The average length of employment for McCoubrey/Overholser’s employees is 12 years, so they must be doing something right. Not only that, but when a job is done, an employee doesn’t get laid off. The company keeps them working.

As for the issue of expressing Free Speech, that’s where things get a little sticky for the boys at Local 98. We spoke with someone at the National Labor Relations Board, who didn’t want to be quoted, to get clarification on the very technical issue of a secondary boycott.

Unions can protest or strike, obviously, at a site where an employer is using non-union labor. That’s called primary picketing, and that’s legal. If that employer also has another business similar to the first, and is at the second location, that can be considered primary picketing as well. However, if the employer has a business that is unrelated to the target of the primary picketing — like, say, a restaurant rather than the renovation of a historic building — unions cannot picket at that location.

In this case, there’s an added wrinkle: The picketing must be directed at the primary employer — in this case, that would be the person who hires the non-union electricians. Weinstein is not the primary employer here; McCoubrey/Overholser is. That being the case, the protest at Trolley Car is even more problematic.

Now, obviously, I’m not a lawyer, and these are very fact-intensive, technical areas that get untangled case by case after a charge is filed. But given all the givens here? Looks a little dicey for Local 98.

I asked Frank Keel, spokesperson for IBEW Local 98, if he had comment on all of this, including the issue of a secondary boycott infraction. Here is his statement:

“This drama created by Mr. Weinstein is nothing but a crass publicity stunt for his business. IBEW Local 98 is engaging in a peaceful, lawful protest and exercising its First Amendment Right of Free Speech to notify area residents that Weinstein is helping to destroy area wages and benefits.”

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  • NateFried

    Ugh… I am all for fair wages and hiring local, but throw this in with the Old City crying baby protest, the oil spilling vandelism Goldtex protest, or the fact that many of these unions have little diversity and non-philadelphians and I can’t possibly support ANY Philly labor union.

    • DTurner

      Nothing makes the case for union busting better than Philly labor. I’m actually quite surprised that the city GOP hasn’t stopped their campaign of sticking their heads in the ground to embrace this as an issue. Breaking union control in Philly would dramatically improve the city’s economic prospects and would probably create more jobs for underprivileged minorities.

      A smart Republican would try to work with the city’s poorer communities and the business community to enact some reforms, or at least strengthen protections for developers using non-union labor.

      • Joe

        Jobs for minorities? Whats wrong with them joining a union? Its cuz the “minorities” that you speak of would rather stand on the corner and sell drugs. Underprivliged my ass more like lazy.

        • DTurner

          That would be great if unions actually let them join their ranks, but that is not the reality here in Philadelphia. Suburban whites want to keep the construction labor market tight in order to push up their wages to NYC and DC levels.

          Also, funny that you would call minorities in the Philly area lazy when Philly construction unions appear to spend more time lazing about and picketing with inflatable rats than actually working.

          Seriously, when do these guys actually work?

          • Joe

            Well the protestors are laid off workers and apprentices so actually that isnt lazy, thats a laid off worker protesting to hopefully make the people realize what they are doing is wrong and make them hire union and maybe he will get employed thats anything but lazy. There are plenty of minorties in our ranks is just most of them have no interest in labor or learning a trade, as far as white suburbans i cant relate im white and live in swp and i dont understand the point you are trying to make with white guys having a hold on the market or whatever your saying

          • DTurner

            I’m saying that the construction unions (in Philly) have been pretty consistent in under-representing minority workers. Go down to DC and you will see a much more diverse bunch of folks working on sites.

            In regards to the protesters, that’s interesting that they are actually unemployed workers. I do have to wonder though if more of them would be employed if the sky-high construction costs in Philly were below or on-par with DC’s.

    • EW

      RE: “hiring local”… There is nothing local about the trades unions – most of their members are from New Jersey.

  • Jonathan Mandoza III

    Somebody should hire all the naughty unions to produce a gigantic structure. With no doors. And no windows. And no ventilation. And no cheese steaks. Must be built from the inside out.

    • Jonathan Mandoza III

      Or outside in. Please help me.

      • Jonathan Mandoza III

        Also no bathrooms or any type sports talk radio reception.

  • Vieux Pays

    Word on the street is the carpenters are very willing to negotiate to win work for their members. The electricians, by contrast, are prickly and impossible to deal with. Some of the rates they quote are double what a non-union contractor charges.

    • Joe

      Union wages are always higher because we hire AMERICANS. We dont bid a job then pay mexicans 5 dollars and hour so the owner sees as much profit as he can.

  • Joe

    How can you complain that unions make to much but have nothing to say about these multi million dollar companies that have all this money and still want the cheapest lAbor possible. If it wasnt for us unions there would be no middle class, it will be poor and rich people you idiots

    • DTurner

      That would be a more apt accusation if Philly union construction workers did not make over 2X the hourly wage of DC workers and only about $10 less than NYC. We don’t have the market to maintain that in a sustainable manner.

      Also, I’m calling BS on the middle class argument. Yes, that was true 50 years ago, but what have you done for us recently, other than chase conventions out of town and burn down Quaker meeting houses?

      • Joe

        What have we done lately? Do you enjoy your saturday and sundays? Do you work 8hrs a day with a 40 hr work week. If it wasnt for us unions you would be slaving for some millionare 7 days a week making peanuts. How do we not have the market? Philadelphia is the 5 largest city in the country with plenty of fortune 500 companies. How can you even compare philly and DC are you serious? Does it hurt your feelings how much our hourly rate is?

        • DTurner

          I’m not doubting that unions were important in the past, the problem has been that unions have done little to re-imagine themselves for the 21st century. To most folks in the Philly region, unions just seem to be grasping for a shrinking pie and not really cooperating.

          Sure, Philadelphia the 5th largest city in the country, but most of the Fortune 500s are either outside of city limits (where construction union power is lower) or offset the enormous construction costs with tax rebates from the state. Remember that PA is one of the top three subsidizers of business in the country.

          I’m comparing DC to Philly because the other comparison, NYC to Philly, is even more absurd; with unionized construction workers in Philly racking in only a few bucks less than their NYC counterparts. That’s hardly logical given the significant discrepancy in cost of living.

          I’m not saying that unions need to die out, just adapt. We can’t sustain the state subsidies and the lost convention center business.