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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