The Evolution of Construction Union Greenmail Legal and Political by decree


									                       Reprinted with permission from the Spring 2010 issue of the
                                    Employee Relations Law Journal.

The Evolution of Construction
Union Greenmail: Legal and
Political Developments, Adverse
Consequences, and Combat Tips
Charles S. Birenbaum and Nicole M. Friedenberg

Charles S. Birenbaum is the managing partner of the San Francisco office of Winston & Strawn LLP
and a member of the firm’s Labor and Employment Department. He can be reached at cbirenbaum@ Nicole M. Friedenberg is an associate in the firm’s Labor and Employment Department.
She can be reached at

The authors believe that “greenmail” is becoming business as usual in some markets. They also
suggest that owners, developers, workers, and contractor/employers on large construction projects
cannot take a wait-and-see approach if they wish to influence decision makers in the Obama
Administration and elsewhere, and they offer some steps to take to combat the problem.

For approximately two decades, the “corporate campaign” has become an effective way for
organized labor to coerce employers into recognizing a union as the exclusive representative of its
workers. Rather than target an employer’s employees, a union corporate campaign starts at the top:
it involves an analysis of a company’s power structure so as to identify and exploit vulnerabilities
in that company’s critical stakeholder relationships. “Greenmail”—a spin on the term “blackmail”
under environmental law—is one aspect of this top-down format that achieves union organizing
objectives by persuading employers, rather than employees, to recognize a union as its employees’
exclusive representative. In order for employers to understand their options for combating the
greenmail tactic, it is important first to understand the evolution of greenmail, including the state
of the developing law and political landscape and the adverse impact that greenmail can have
on traditional labor negotiations, an employer’s free-market use of vendors and suppliers, and
employee free choice.

In most private-sector industries other than the construction industry, where a labor union produces
evidence that a majority of employees in an appropriate bargaining unit desire union representation
(usually after a majority of employees vote in favor of union representation in a secret-ballot election),
the employer and the union enter into a collective bargaining relationship pursuant to Section 9(a)
of the National Labor Relations Act (NLRA).1 In a Section 9(a) relationship, the employer is required
to bargain in good faith with the union over the terms and conditions of employment of the union-
represented employees.2 Absent a showing of majority status, an employer generally is prohibited
from bargaining with a union.3

Due to the unique nature of employment in the construction industry, the law allows construction
industry employers to create a bargaining relationship with a union even though that union does
not represent a majority of the employer’s employees.4 In fact, the parties may bargain before a
contractor even hires its workforce. This “pre-hire” bargaining leads to a “pre-hire” or “Section 8(f)”
agreement. For an agreement to qualify as a lawful pre-hire agreement, three statutory requirements
must be met:

1. The employer must be engaged primarily in the building and construction industry;
2. The agreement must cover employees engaged, or who, upon their employment, will be engaged
   in the building and construction industry; and
3. The agreement must be with a labor organization of which building and construction employees
   are members.5
4. If these conditions are met, the law also allows the parties to a pre-hire agreement to enter into
   a strict subcontracting limitation where the employer agrees not to subcontract work at the
   construction site to non-union employers.6

The term greenmail came to life as a spin on the term blackmail when unions began top-down
organizing by leveraging environmental laws to slow or impede employer operations until an employer
entered a pre-hire agreement or otherwise recognized a union as the exclusive representative of
employees without a secret-ballot election. In 1970, Governor Ronald Reagan signed the California
Environmental Quality Act (CEQA),7 a law that requires companies to obtain environmental permits
in order to begin major construction projects. Unless an exemption applies, project developers
and/or owners in California must obtain approval from the appropriate government agency before
construction may commence. Approval is subject to at least some environmental review pursuant
to CEQA. The process takes time, and community groups may intervene to object to the awarding
of permits. The term greenmail was coined when environmental attorneys representing organized
labor began contesting construction projects in the permitting phase in order to obtain pre-hire
agreements or union-only project labor agreements (PLAs). A PLA is a pre-hire collective bargaining
agreement under NLRA Section 8(f) that standardizes terms and conditions of employment for all
signatory contractors on a large construction project. “Union-only” essentially requires that only
union-represented labor will work on a particular project.

A typical example of greenmail might look something like this: ABC Energy Company applies for
a licensing permit from the California Energy Commission (CEC) for the power plant it wants to
develop in Southern California. ABC Energy Company does not typically perform construction
work, and does not plan to build this power plant using its own employees. Rather, it intends to
hire a general contractor to employ workers and directly perform the construction. Union Local
123, representing certain building and construction trade workers, approaches the President of ABC
Energy Company with a proposed PLA for the project. ABC Energy Company shows reluctance
to sign the agreement—first, because it worries that the contract would not be legal under the
requirements of Section 8(f); second, because it prefers that the bidding pool set labor terms, as is
ordinarily the case.

When ABC Energy Company suggests its unwillingness to sign the proposed PLA, Union Local 123
intervenes in the CEC process and propounds several hundred requests for environmental impact
data about the proposed power plant, slowing the permit process, adding cost for the developer,
and possibly killing the application’s prospects. Union Local 123 also persuades other community
groups to intervene in the process as well, and these groups submit their own environmental impact
requests and attend public hearings where they loudly protest against the project. ABC Energy
Company, concerned that the permitting of its power plant is jeopardized and that its project may
never be built, capitulates and signs the PLA as originally proposed—despite its misgivings over
doing so. Union Local 123 withdraws opposition to the project or “settles” with the developer/
owner in a way that minimizes further opposition to the permit application.
This type of greenmail tactic has not been limited to California. Greenmail has been successful
in forcing companies into signing union-only PLAs in states like New York, Connecticut, Arizona,
Nevada, Minnesota, and Florida. Increasingly, greenmail is becoming the subject of lawsuits by
developers and owners seeking protection from coercion during the development of industrial

The intersection between union organizing and environmental issues in the construction industry has
been an important topic for the National Labor Relations Board (NLRB or Board) and for the courts.
Three recent, key cases—Petrochem Insulation, Inc. v. NLRB,8 BE&K Constr. Co.,9 and Glens Falls
Bldg. & Constr. Trades Council, Bricklayers Local 6 (Indeck)10—have shown that, for the time being,
the NLRB has moved away from its position that unions can greenmail project labor agreements
from employers under any circumstances without repercussion. However, the NLRB has not gone
so far as to declare this activity wholly unprotected under the law, and there is no indication that it
will do so. In fact, the next few years will be a critical period in which employer and union conduct
will be tested. Results will depend largely on President Obama’s labor and economic agendas, as
well as his appointments to the NLRB and federal courts.

The Petrochem Case
In Petrochem, the United States Court of Appeals for the District of Columbia Circuit affirmed
the NLRB’s decision that the unions’ conduct in filing environmental objections to zoning and
construction permits sought by non-union contractors was protected by the NLRA as a form of
“area standards” activity.11 This decision came despite the contention that the NLRB had no record
evidence that the unions were promoting area standards in the first place (indeed, union objections
to permits had launched even before construction had begun).12 The court also affirmed the NLRB’s
decision that Petrochem had committed an unfair labor practice by filing a meritless and retaliatory
lawsuit against the unions (based on a standard that the Supreme Court later invalidated).13

Petrochem—a non-union, California-based company—was in the business of removing thermal
insulation in construction and maintenance projects.14 According to Petrochem, several contractors
stated that they could not bid for or perform work on Petrochem’s Northern California projects
because of Petrochem’s non-union status.15 These contractors wanted to avoid environmental
permit protests by unions.16 In response, Petrochem sued 21 unions under the RICO statute, among
other things.17 Petrochem alleged that, by filing environmental objections to and threatening to
delay Petrochem’s projects, the unions were engaging in “criminal extortion” under both state and
federal law.18 The district court dismissed Petrochem’s complaint, finding that the NLRA preempted
the RICO claims.19 The Ninth Circuit affirmed, and the Supreme Court denied cert.20

Shortly thereafter, the NLRB’s General Counsel charged Petrochem with a violation of NLRA Section
8(a)(1) for filing a meritless lawsuit to retaliate against the unions for their protected activity.21 The
NLRB found not only that Petrochem’s lawsuit lacked merit, but also that an intent to retaliate
against the unions’ protected, concerted activity motivated the suit.22 The NLRB ordered Petrochem
to cease filing such lawsuits and to reimburse the unions’ legal expenses.23

The appellate court agreed that the unions’ environmental objections were protected under NLRA
Section 7.24 It found that the NLRB properly had relied on the unions’ statement that they were
“intervening before state environmental and other regulatory permit proceedings in order to ‘force
construction companies to pay their employees a living wage, including health and other benefits.’”25
The appellate court dismissed Petrochem’s argument that the record evidence did not support such

a finding where the unions objected to projects before they had even begun and the NLRB could
not have predicted actual wages and benefits.26 The appellate court stated that the NLRA did not
prevent a union from obtaining commitments from employers about wages and benefits for future

The BE&K Case
Six years later, in BE&K, the NLRB held that a contractor did not violate the NLRA when it filed
and maintained an unsuccessful lawsuit against several unions for their conduct in attempting to
stall the contractor’s industrial project through environmental objections.28 This decision allowed
a construction industry employer to attack a union’s greenmail activity in court without the fear of
being hit with an unfair labor practice charge, as long as the lawsuit had a reasonable basis.

BE&K, an industrial general contractor, received a contract to modernize a California steel mill in
the beginning of 1987.29 Various unions tried to stall the project because BE&K’s employees were
non-union.30 Among other things, the unions:

1. Lobbied for the adoption and enforcement of an emissions standard despite having no real
   concern about the environmental impact of the project;
2. Handbilled and picketed at BE&K’s site and encouraged strikes among BE&K’s subcontractors;
3. Filed a state court law suit against BE&K alleging violations of California’s Health and Safety

BE&K filed suit against the unions in federal court in California, initially seeking damages under the
NLRA, but later amending its complaint to allege federal antitrust violations.32 Ultimately, the court
dismissed most of BE&K’s claims (including the antitrust claim) and BE&K withdrew the rest.33 The
Ninth Circuit affirmed the dismissal.34

Following the Ninth Circuit’s decision, the NLRB found that BE&K had violated Section 8(a)(1) of
the NLRA by filing and maintaining the lawsuit against the unions.35 That ruling eventually reached
the United States Supreme Court, which declared invalid the standard the NLRB had used to reach
its decision.36 The Court remanded the case to the NLRB for further consideration.37

On remand, the NLRB held that “the filing and maintenance of a reasonably based lawsuit does not
violate the Act, regardless of whether the lawsuit is ongoing or is completed, and regardless of the
motive for initiating the lawsuit.”38 Taking its cue from the Supreme Court, the Board stated that to
declare a reasonably based, but unsuccessful, lawsuit to be an unfair labor practice burdens the First
Amendment right to petition.39 Further, an unfair labor practice finding causes reputational harm
unlike any harm caused by other penalties.40 Requiring the plaintiff to pay the defendant’s legal
expenses for such a lawsuit would be patently unfair.41 Applying the standard to the case at bar, the
NLRB held that BE&K’s lawsuit was reasonably based and dismissed the complaint against BE&K.42

The Indeck Case
In the same year as BE&K, the NLRB in Indeck held that a greenmail-coerced project labor agreement
between a power plant owner and a building and construction trades council in New York violated
the NLRA where the agreement was not made in the context of a collective bargaining relationship
or in an effort to reduce friction between union and non-union workers at a job site.43 The NLRB
refused to enforce the illegal agreement. However, it also avoided the issue of whether greenmail
itself was a separate violation of law.

In the early 1990s, Indeck—a designer, owner, and operator of power cogeneration facilities in
New York—was planning to build new facilities in several parts of the state.44 Representatives
of the Southwestern New York Building and Construction Trades Council told Indeck’s president
that it would stop every Indeck project in New York unless Indeck used union workers.45 Indeck’s
president agreed to use union workers for its Olean, New York project, and the SWNY Building and
Construction Trades Council agreed to withdraw its environmental objections and to support the
project in letters to the New York State Department of Environmental Conservation.46 In response to
similar pressure from other unions, Indeck ultimately agreed that it would use union labor for all of
its cogeneration projects in New York.47

Indeck hired CRS Sirrine, Inc. to serve as construction manager.48 Indeck required Sirrine to
negotiate a PLA with the building trades unions and to impose that PLA on all contractors and
subcontractors performing work on the project.49 Later, when Indeck and Sirrine could not agree on
an escalation in price for one project because of a delayed start, Indeck canceled its contract with
Sirrine.50 Indeck selected a non-union contractor, CNF Constructors, Inc., as the replacement.51
Indeck did not require CNF to sign a PLA with the trade unions, and non-union workers completed
the project.52

The trade unions filed a breach of contract lawsuit against Indeck, seeking $12 million in damages.53
In response, Indeck filed an unfair labor practice charge with the NLRB, alleging that its agreement
with the trade unions violated Section 8(e) of the NLRA and was unenforceable.54 Section 8(e)
generally prohibits employees and unions from agreeing to refuse to do business with other
entities—through a strict union-only subcontractor clause—unless specific exceptions apply in a
construction industry “proviso” to Section 8(e).

The NLRB held that Indeck’s promise that its contractor would deal only with union subcontractors
was within the scope of Section 8(e)’s prohibitions because it constituted Indeck’s implicit agreement
not to do business with another person.55 The NLRB then turned to the “central issue” in the case:
“whether the otherwise prohibited . . . agreement[s] . . . were protected under the construction
industry proviso of Section 8(e).”56

To answer this question, the NLRB announced two non-statutory tests it derived from the United
States Supreme Court’s decision in Connell Constr. Co. v. Plumbers Local 100:57 (1) were Indeck’s
agreements made in the context of a collective bargaining relationship? and (2) even in the absence
of a collective bargaining relationship, were the agreements motivated by “the reduction of friction
that may be caused when union and non-union employees of different employers are required to
work together at the same job site”/58 The Connell Court adopted and applied to its facts only the
first test, but noted that some lower courts had mentioned the second test.59

The Board found the first test was not satisfied because nothing in the agreements dealt with the
terms and conditions of employment for Indeck/Sirrine’s own employees: only contractor workers
were impacted by the labor agreements, demonstrating the lack of any true bargaining relationship
between the unions and Indeck.60 The Board also found the second test was not satisfied: the
evidence demonstrated that Indeck’s sole motivation in signing the agreements was to remove the
threat of union opposition to Indeck’s efforts to secure environmental regulatory approval.61 The
Board also stated that the unions’ goal was to ensure a labor monopoly at a major construction
site to provide work for their unemployed members.62 Although the NLRB fell short of expressly
declaring greenmail unlawful, the Indeck case was still a win for employers seeking some protection
from unions’ coercive tactics.

Indeck may have offered hope to employers, but President Obama’s election and his labor agenda
could change all that. President Obama is backing legislation that would expand labor’s thinned
ranks by making it far easier to unionize workers.63 Since he took the oath of office, President
Obama has issued four labor-friendly executive orders and nominated and/or appointed several
union-friendly leaders to key roles in the government.64 The new President’s labor policies will have
a huge effect on labor-management relations and union organizing tactics, including greenmail.
Employers need to be aware particularly of how Presidential appointments to the NLRB could shape
the future.

The NLRB is a five-member Board appointed for five-year staggered terms by the President with the
advice and consent of the Senate. The NLRB is comprised of two Democrats, two Republicans, and
a Chairperson selected from the President’s political party. At the end of 2007, the NLRB began a
major change in composition when Republican Chairman Robert J. Battista’s term expired, leaving
his seat vacant. Because the Senate did not act to continue the recess appointments of Members
Dennis P. Walsh (a Democrat) and Peter N. Kirsanow (a Republican) before they expired, these seats
were left vacant as well. However, on his first day in office, President Obama elevated Member
and former union attorney Wilma B. Liebman to NLRB Chairperson. Several months ago, President
Obama nominated union attorneys Craig Becker and Mark Pearce to fill two of the three empty
slots.65 Member Peter C. Schaumber is the only remaining Republican on the Board, and his term
is set to expire in August 2010. Why is this important? Politics play a large role in Board member
selection, and the Board’s decisions seem to change every time there is a shift in Administrations.
The balance of power is shifting, and decisions like Indeck may be jeopardized. Greenmail may be
tacitly condoned, if not formally approved.

It is clear that unions are looking to President Obama to help them reverse their slide in power
and membership over the last several decades. The New York Times has reported that unions
represent just 7.6 percent of private-sector workers today, down from more than 25 percent in the
early 1980s.66 With a Democratic President, a former union lawyer as NLRB Chairperson, a union-
friendly Secretary of Labor, and key union organizing legislation on the horizon, union leadership
sees its opportunity to turn these numbers around. Unions expect that government officials will not
only allow greenmail, but will actively support it.

Employers targeted by unions consider greenmail coercive. Naturally, the unions deny any
suggestion of coercion. They say they have no ulterior motive—that the reason they intervene in
permit proceedings for projects is solely to protect the environmental and economic interests of
their members. They argue that environmental degradation jeopardizes jobs, and union members
are concerned about projects that harm the environment without providing offsetting economic

Yet, if these unions were concerned about the environment, they would not, for example, be
interfering with projects like the development of clean, solar energy power plants in California
that will involve millions of work hours. If they were concerned about the economic benefits for
their members, they would not be working to defeat projects where the developer publicly and
unequivocally states its intention to use union labor, but still needs to hire a general contractor that
lawfully can enter a PLA. Rather, they would be joining forces with developers to support these
projects through the permitting process, ensure these projects remain in California, and ultimately
create jobs for California workers.
Instead, the goal is simply to organize more workers at whatever cost. But, the costs are steep.
Greenmail slows investments in needed projects – it is anti-development, anti-renewable energy,
anti-economic stimulus, and anti-competitive, among other things. It also has a significant
adverse effect on labor-management relations. Greenmail during the negotiation process for a
PLA on a major project often takes the form of take-it-or-leave-it proposals, refusals to respond to
employer proposals that may differ from union objectives, and attempts to alter the composition
of an employer’s bargaining team (where a union does not wish to deal with a particular employer
representative or attorney, the union will suggest that discussions will progress more smoothly if a
different lawyer or representative were involved). If this conduct were occurring in the context of
a Section 9(a) collective bargaining relationship rather than a Section 8(f) construction relationship,
the conduct would be considered an unfair labor practice.

The point here is not that PLAs are never appropriate. Indeed, using a freely negotiated PLA on a
major construction project can have its advantages:

1. Standardization of terms and conditions of employment across the job;
2. Protection of management flexibility to construct the project as it sees fit in line with budget,
   scheduling, and other constraints;
3. Union support for the project and non-interference in the permitting process;
4. Protection against strikes, other forms of work stoppages, and lockouts;
5. Access to union hiring halls and apprenticeship programs as a steady source of local skilled and
   unskilled labor; and
6. Access to union traveler programs for labor needed from other geographic areas, among many
   other things.

The point is that these labor contracts should be freely negotiated and subject to market forces
unrelated to the stress of greenmail. Union-coerced PLAs with draconian provisions for employers
spell the end of the free-market economy in the construction industry as we know it.

The anti-competitive nature of greenmail is evident in many ways. First, strict scope, work jurisdiction,
and subcontracting clauses deter many contractors from bidding jobs. A smaller bidding pool may
jack up costs and reduce innovation. Increased contractor costs result from mandatory employer
contributions to union trust funds and complicated jurisdictional rules. Many PLAs place onerous
restrictions on the types of third-party vendors, materials, and supplies that can be used on a project
(unions typically want to work with unionized vendors and materials sourced from union shops),
further limiting economic free choice.

The policy decisions allowing greenmail are controversial. President Obama has come under attack
for what has been viewed as his role in placing his labor agenda over the free-market ideals of the
American economy. Just two weeks into his term, on February 6, 2009, President Obama issued
Executive Order 13502, which allows federal agencies to require the use of a PLA on large, federal
construction projects under certain circumstances. Despite the fact that the Federal Acquisition
Regulatory Council had not issued a final rule implementing EO 13502, it was reported67 that the
Department of Labor (DOL) mandated the use of a PLA for a DOL Job Corps Center in Manchester,
New Hampshire. This PLA was believed to be the first government-mandated PLA on a federal
construction project since EO 13502 was issued. A legal challenge to the PLA was filed with the
Government Accountability Office, alleging that the DOL’s PLA mandate unduly restricts competition
and violates the Competition in Contracting Act, Small Business Act, and numerous procurement
regulations, among other things. As a result, in November 2009, the DOL cancelled its solicitation

for bids to construct the Manchester Job Corps Center under a mandated PLA. Regarding the
cancellation, the DOL stated:

       [T]he Department of Labor (DOL) has canceled the Manchester New
       Hampshire Job Corps Center construction solicitation. This solicitation
       included a requirement that each bidder have in place a Project Labor
       Agreement (PLA) at the time of submission of its bid to DOL. The solicitation
       was cancelled because DOL believes that it is in the public interest for the
       Department to further evaluate the issues involved in the PLA requirement. The
       PLA requirement is a new issue for DOL. The solicitation was also the subject
       of a bid protest before the Government Accountability Office challenging the
       PLA requirement. The Department of Labor is currently considering next steps
       for building a new Job Corps Center in Manchester, New Hampshire. This
       cancellation shall be recorded in accordance with 48 C.F.R. § 14.403(d).68

The cancelled solicitation rendered the pending bid protest before the GAO moot. A GAO ruling
on the bid protest may have addressed the legality of federal government-mandated PLAs and
Executive Order 13502. It seems likely that other legal challenges will follow.

Finally, the greenmail tactic has a significant effect on people other than employers and unions:
employees. Employees’ free choices are impacted – something that gets lost in the fray. Employers
coerced into signing a union-only project labor agreement must realize that, as a result, non-union
employees will lose their rights under the NLRA to refrain from joining a union. Instead, non-union
employees wishing to work on a particular construction project that is subject to a union-only PLA
must become members of the union representing workers in their craft or be barred from work
on that project. Even in the current economy, this could reduce the pool of workers for a project.
Many qualified workers do not want, and cannot afford, to pay the dues and fees associated with
union membership. Indeed, even Democratic, California Senator Dianne Feinstein publicly stated
her opposition to giving unions carte blanche with respect to union organizing.69

Greenmail is becoming business as usual in some markets like California and New York. Owners,
developers, workers, and contractor/employers on large construction projects cannot take a wait-
and-see approach if they wish to influence decision makers in the Obama Administration and
elsewhere. What can be done? This should be considered generally on a corporate level and on a
project-by-project basis.

On a corporate level, owners, developers, and contractors should assess their business goals, business
plans, and strategic approaches by including a conversation about and analysis of greenmail impacts
company-wide. This is not an anti-union focus. Rather, the analysis revolves around what labor
architecture is best for the company and for the scope of its endeavors. Union sourcing may be the
best way to accomplish various goals. It is not enough to decide a pro- or anti-union approach any
longer: companies have to drill deeper and consider government affairs of all sorts wherever they
touch the business. If union labor is acceptable, then a company must ask what kind of union labor
is appropriate. For example, is it the kind that results from greenmail or another kind? The process
should include questions about how these considerations impact other stakeholders, operations,
and interests in the company.

On a project level, management should plan around greenmail and its impacts for the project.

Before or in the early stages of development, a number of questions need to be addressed by

        •   Does the project require any governmental permits?
        •   What is the timeline for that process?
        •   How vulnerable is the project to environmental and social objections raised under
            CEQA or other statutes?
        •   When would third-party interference in that process be most harmful?
        •   What other community groups could impact the project regardless of union cooperation?
        •   Is there pending legislation that will support or impede the project?
        •   What role might a union take in supporting or trying to thwart such legislation?
        •   When is the contracting community going to become involved in the project?
        •   What role can contractors play?
        •   What unions and union groups will become interested in the project? Are they united
            or divided?
        •   Who are their spokespeople and what strategies are there for union interest in the project?
        •   What are the benefits and detriments to partnering with labor?

Asking and analyzing the answers to questions like these and others allow project management a
way to plan around greenmail activities.

Companies should prepare a strong communications campaign about the project tailored to various
audiences. For example, communications targeted toward neighboring residential communities
may be different in tone and content from communications directed toward political leaders, the
financing community, and even union representatives. Messaging should be carefully planned and
consistent with the goal of garnering support for the project.

Finally, if entering a PLA is preferential, planning the negotiations is critical to success. The same
efforts invested in bargaining for any collective bargaining agreement should be applied to the PLA
process – including the table and support team selections, budgeting, investigation of company and
contractor experience, industry practice, legal considerations, and specific drafting in accord with
overall goals. The Indeck issue must be addressed for those companies that may not legally enter a
PLA, and strategies must be prepared for including labor in a solution. Greenmail is counterintuitive
to those who believe coercion in any form is inappropriate in the marketplace for development and
construction. On the other hand, many unions and public officials have a different view, finding
the ends justify the means when it comes to union organizing. One conclusion is clear despite the
disagreement: preparation with experts and adequate resources is a necessity under the current
state of the law in the markets where greenmail may become an organizing tactic.

1        29 U.S.C. § 159(a).
2        NLRA § 8(a)(5); 29 U.S.C. § 158(a)(5).
3        29 U.S.C. §§ 157, 158(a)(2), (a)(5).
4        NLRA § 8(f); 29 U.S.C. § 158(f).
5        Id.
6        NLRA § 8(e); 29 U.S.C. § 158(e).
7        Cal. Public Resources Code §§ 21000, et seq.
8        240 F.3d 26 (D.C. Cir. 2001).

9    351 NLRB 451 (Sept. 29, 2007).
10   350 NLRB 417 (July 31, 2007).
11    Petrochem, 240 F.3d at 27.
12    Id. at 30.
13    Id. at 27.
14    Id. at 28.
15    Id.
16    Id.
17    Id.
18    Id.
19    Id.
20    Id.
21    Id. at 29.
22    Id.
23    Id.
24    Id.
25    Id. at 29–30.
26    Id. at 30.
27    Id.
28    BE&K, 351 NLRB at 451.
29    Id.
30    Id.
31    Id.
32    Id. at 451–452.
33    Id. at 452.
34    Id.
35    Id.
36    Id. at 452–453. In finding that BE&K had committed an unfair labor practice by maintaining its
     lawsuit against the unions, the NLRB had relied on a portion of the Supreme Court’s decision in
     Bill Johnson’s Rests., Inc. v. NLRB, 461 U.S. 731 (1983), in which the Court stated that if a lawsuit
     “result[ed] in a judgment adverse to the plaintiff . . . and, if it is found that the lawsuit was filed
     with retaliatory intent, the Board may find a violation and order appropriate relief.” However, in
     reviewing the NLRB’s decision and analysis in the BE&K case, the Supreme Court re-visited its
     statement in Bill Johnson’s, disavowed the statement as dicta, and refused to be bound by it.
37    Id. at 451.
38    Id. at 456.
39    Id. at 456–457.
40    Id. at 457.
41    Id.
42    Id. at 459–460.
43    Indeck, 350 NLRB at 417.
44    Id. at 418.
45    Id.
46    Id.
47    Id.
48    Id.
49    Id. at 420.
50    Id. at 420.
51    Id.
52    Id.
53    Id.
54    Id.
55    Id.

70.   Id. Id. at 420–421.
71.   Id. 421 U.S. 616 (1975).
72.   Id. Id. at 421.
73.   Id. Id.
74.   Id. Id.
75.          Id.
      See also, State v. Wayne DeAngelo, 197 N.J. 478 (N.J. 2009) (applying First Amendment standards, not
 62          Id.
      the Babcock & Wilcox discrimination standard, to strike a municipal ordinance which prevented the
 63         H.R. 1409/S. 560, “The Employee Free Choice Act labor dispute.)
      display of a large balloon in the shape of a rat during a of 2009,” introduced into Congress on March 10,
76.   Id. at2009.
              965 (citing Fashion Valley, 172 P.3d at 754).
77.          President Obama’s four labor-friendly executive orders are: (1) Executive Order 13494, “Economy
      Id at 966.
78.   Id. in Government Contracting” (Jan. 30, 2009); (2) Executive Order 13495, “Nondisplacement of
79.   Id. atQualified Workers Under Service Contracts” (Jan. 30, 2009); (3) Executive Order 13496, “Notification
80.   Id. atof Employee Rights Under Federal Labor Laws” (Jan. 30, 2009); and (4) Executive Order 13502,
81.   Id. at“Use of Project Labor Agreements for Federal Construction Projects” (Feb. 6, 2009). The President’s
82.   Id. atnominations and/or appointments of union-friendly leaders include Hilda Solis, appointed as U.S.
83.   Id. atSecretary of Labor; former union attorney and NLRB member Wilma B. Liebman, appointed as
84.         Chair of the NLRB; Julia Clark, 23 Cal.3d 899 (Cal. 1979); see also Fashion Valley Mall, 69 Cal.
      Robins v. Pruneyard Shopping Ctr., former general counsel of the International Federation of Professional
            3d Technical Engineers, appointed as general counsel of the Federal Labor Relations Authority; and
      Rptr. and288 (2007).
85.   Id. atSusan Grundmann, general counsel for the NFFE-IAM, nominated to serve as Chair of the Merit
86.         Systems Protections v. Citizens for Representative Gov’t, 193 Cal. App. 3d 1193 (1978)).
      Id. (citing H-CHH Assocs.Board, among others.
87.           Despite the Needletrades, Education, Labor, and Pensions Committee’s approval of President
      Id. (citing Union ofSenate Health, Indus. & Textile Employees v. Superior Court, 56 Cal. App. 4th 996
            Obama’s Cos., nominations in October 2009, it has (affirming restrictions on expressive
      (1997); CostcoNLRB Inc. v. Gallant, 96 Cal.App.4th (2002) been reported that Senator John McCain (R-
            AZ) on threatened to place a year)).
      activities has 34 busiest days of the hold on Mr. Becker’s nomination, effectively stalling a full Senate vote
            on both Mr. Becker’s and Mr. Pearce’s nominations, as well as a full vote on President Obama’s third
            NLRB nominee, Republican Brian Hayes. BNA Daily Labor Report, 216 DLR C-3 (Nov. 12, 2009).
66  , “In Obama, Labor Finds the
            Support It Expected,” Mar. 1, 2009.
67   , “ABC Member Files Protest Against U.S.
            Department of Labor Project Labor Agreement,” Oct. 6, 2009.
68          See 0009
69           See, “Nurses Wanting
            to Unionize Face Unlikely Foe: Feinstein,” Oct. 14, 2009.

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