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A union’s free speech rights were not violated when the National Labor Relations Board found that it had committed an unfair labor practice by repeatedly broadcasting a protest message at excessive volumes to oppose the use of non-union labor at the Society Hill Towers, a federal appeals court has ruled. In Metropolitan Regional Council of Philadelphia and Vicinity, United Brotherhood of Carpenters and Joiners of America v. NLRB, Judge Jane R. Roth of the 3rd U.S. Circuit Court of Appeals found that courts had “consistently rejected” the claim that secondary picketing by labor unions that violates federal labor law is protected activity under the First Amendment. Quoting a 1982 decision of the U.S. Supreme Court, Roth said: “It would seem even clearer that conduct designed not to communicate but to coerce merits still less consideration under the First Amendment.” In October 1999, Senior U.S. District Judge John P. Fullam enjoined the union from using a sound system to amplify its message late at night or early in the morning and ordered that the broadcasts never exceed the city Health Department’s acceptable noise levels. Fullam found that while the union had the right to publicly oppose the use of non-union labor on the apartment complex’s interior finishing contract, it had crossed the line by pumping up the volume on its loudspeakers in the early morning and evening hours. “The evidence makes clear that the [union] has deliberately chosen to create vastly excessive noise levels in broadcasting its protest message,” Fullam wrote. The union’s lawyer, Richard C. McNeil of Philadelphia’s Sagot, Jennings & Sigmond, argued that the NLRB was overstepping its authority because only city officials have the right to enforce local noise-pollution ordinances. Fullam disagreed, saying, “I am satisfied that the excessive noise levels … in this case can indeed constitute coercive action constituting an unfair labor practice.” After Fullam’s injunction was in place, the issue went before an administrative law judge. The union contended that two contractors hired by the Society Hill Towers and the Versailles apartment building had employed non-union carpenters at substandard wages and created unsafe working conditions. According to court papers, an agent of the union met with the property manager of each complex and said that if new contractors were not hired there would be “problems” or “trouble.” Soon after, the union picketed the complexes and broadcast audio recordings of messages contained in its handbills from the public property adjacent to the complexes. Although each recording lasted only 45 seconds, they were repeated continuously for periods ranging between 45 minutes and two hours, according to court papers. The union broadcast the recordings on 48 separate days at Society Hill Towers and on six separate days at the Versailles. At both complexes, the broadcasts began at approximately 7 a.m. and 7 p.m. — times when the union expected residents of the complexes to be going back and forth between their homes and their work. At times, the broadcasts were played on multiple, unsynchronized loudspeakers, creating “garbled” noise. When hundreds of residents complained, the Philadelphia police sent a noise pollution inspector to measure the volume. But most of the inspector’s attempts were thwarted by union “spotters” who signaled for sound system operators to lower the volume of the broadcasts when they saw him approach, according to court papers. Ultimately, the inspector succeeded in measuring the volume by arriving before the protest began. He testified that he was able to hear the broadcasts from as far away as five city blocks. The ALJ determined that the union’s activities violated � 8(b)(4)(ii)(B) of the National Labor Relations Act because the union had used excessive volume levels and its broadcasts had the unlawful, secondary purpose of coercing the complexes to stop doing business with the contractors. Now the 3rd Circuit Court has rejected the union’s appeal from a decision by the NLRB that upheld the ALJ’s cease-and-desist order. Roth, who was joined by Chief Judge Edward R. Becker and Judge Marjorie O. Rendell, rejected the union’s argument that the broadcasts were protected by the Publicity Proviso to � 8(b)(4) of the act and � 8(c) of the act. “While the Publicity Proviso permits truthful non-picketing publicity directed toward consumers and the public, it does not protect coercive conduct,” Roth wrote. Instead, Roth said, � 8(c) “protects only ‘expression [that] contains no threat of reprisal or force or promise of benefit,’ and not coercive speech used in furtherance of an unfair labor practice.”

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