United States: If You Can't Stand The Heat, Get Out Of The Kitchen—Best Practices From Top Chef

"If you can't stand the heat, get out of the kitchen!" That's essentially what a group of Teamsters told Top Chef host personality Padma Lakshmi back in June 2014 outside of Steel & Rye restaurant in Milton, Massachusetts. This "episode" is now at the center of a lawsuit brought by the federal government against four Boston-area Teamsters accused of threatening Top Chef production into providing them with positions already held by nonunion employees. 

The incident occurred in June 2014, when Lakshmi arrived at the restaurant for the filming of a Top Chef episode. Her van was met with a group of Teamsters, one of whom allegedly approached Lakshmi's vehicle, reached in the passenger side window where she was sitting, and said, "Lookee here, what a pretty face." Naturally, Lakshmi understood this to be a threat—or at least this is the theory of the attorneys prosecuting the case.

The Teamsters on the other hand contend that the incident outside of the restaurant was for the purpose of a legitimate union objective, i.e., picketing to obtain jobs driving Top Chef's trucks for their fellow out-of-work Teamsters. Prosecutors argue that the Teamsters were attempting to strong-arm the Bravo show's crew into paying them for unneeded work, for which there is no legal protection. See United States v. Enmons, 410 U.S. 396 (1973), (Holding that federal law does not protect union violence in furtherance of the union's objectives).

So, what are some best practices for employers facing a labor picket?

1) First, an employer needs to know that strikes and picketing are protected conduct under the National Labor Relations Act, under certain circumstances. A union, however cannot strike or picket an employer to force it to stop doing business with another employer that is the primary target of a labor dispute. At work sites with more than one employer, such as a construction site, picketing is permitted only if the protest is clearly directed exclusively at the primary employer.

2) Picketing should be confined to public places surrounding the employer's premises. As a general rule, there should be no picketing in private places or on the street.

3) While picketers can be enthusiastic in support of their picket, the chants should not include threats, slurs, or other forms of harassment based on race, nationality, or gender/sexual orientation.

4) Picketers should avoid confrontation and not make physical contact with anyone under any circumstances. This includes throwing items, brandishing weapons, following individuals to and from the picket site, and making threats.

5) Generally, employers subject to a picket cannot obtain a legal injunction to prohibit or stop a picket. Both state and federal law prohibit a court from intervening by issuing an injunction to prohibit a peaceful picketing protest. But employers should be mindful, as pickets are not without some constraint. In the event a picket results in the blockade of entrances, violence, and/or the destruction of property, courts may issue an injunction.

6) Protesters can picket only employers that are subject to the actual labor dispute. Therefore, it's vitally important for employers to know whether they are considered the actual employer. For instance, contractors that subcontract the work are not considered employers of the trade being picketed by the union. As an example, if the project has a two-gate system and the carpentry union is picketing a particular project, the union may picket only at or near the gate that the carpentry subcontractor uses, i.e., the picketers cannot picket at the electricians' gate. If a union fails to honor this two-gate system, the employer can raise the issue before the National Labor Relations Board.

7) Finally, employers cannot terminate employees for participating in a strike or picket, or their feet will be held to the fire!

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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