Ameristar Casino E. Chi., LLC v. Unite Here Local 1

• Decision Date: 24 August 2018
• Docket Number: No. 16 CV 5379,16 CV 5379
• Parties: AMERISTAR CASINO EAST CHICAGO, LLC and LISA JUNG, Plaintiffs, v. UNITE HERE LOCAL 1, Defendant.
• Court: U.S. District Court — Northern District of Illinois

AMERISTAR CASINO EAST CHICAGO, LLC and LISA JUNG, Plaintiffs, v. UNITE HERE LOCAL 1, Defendant.

No. 16 CV 5379

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

August 24, 2018

Judge Manish S. Shah

MEMORANDUM OPINION AND ORDER

Plaintiff Ameristar Casino East Chicago, LLC is in a labor dispute with defendant UNITE HERE Local 1, a labor organization that represents some of Ameristar's employees. Local 1 tried to get regular customers of Ameristar's casinos to join a consumer boycott of Ameristar and broadcasted—through leaflets, mailings, banners, and in-person contact—the fact that particular customers had not joined the boycott. Ameristar and Lisa Jung, a former Ameristar regular customer, claim that Local 1's actions violate the National Labor Relations Act's prohibition on coercive secondary labor activity. Local 1 moves for summary judgment. The motion is granted in part, denied in part.

I. Legal Standards

Summary judgment is appropriate if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A genuine dispute as to a material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant bears the burden of establishing that there is no genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "To survive summary judgment, the nonmoving party must show evidence sufficient to establish every element that is essential to its claim and for which it will bear the burden of proof at trial." Diedrich v. Ocwen Loan Servicing, LLC, 839 F.3d 583, 591 (7th Cir. 2016) (citation omitted). All facts and reasonable inferences are construed in the light most favorable to the nonmoving party. Laborers' Pension Fund v. W.R. Weis Co., Inc., 879 F.3d 760, 766 (7th Cir. 2018).

II. Facts

Ameristar operates an entertainment facility that includes a casino, restaurants, and a hotel. [51] ¶ 1.¹ Local 1 is a labor union that represents a bargaining unit of about 180 Ameristar employees, including bartenders, servers, and cleaners. [51] ¶ 3, Add'l ¶ 2. After two or three years of unsuccessfulnegotiations over health insurance benefits in a new collective bargaining agreement, Local 1 began a consumer boycott of Ameristar in 2015. [51] ¶¶ 4-5. The purpose of the boycott is "to put economic pressure on Ameristar in order to cause Ameristar to agree to Local 1's proposal for a new collective bargaining agreement." [51] ¶ 5. Local 1's boycott strategy includes asking regular Ameristar customers to support the boycott and publicizing the names of regular customers who do not. [51] ¶ 9.

Plaintiff Lisa Jung, a restaurant owner, was a frequent and loyal customer of Ameristar's casino. [51] Add'l ¶ 3. In 2015, Local 1 began sending Jung mail about the labor dispute and boycott. [51] ¶ 43. Local 1 also left leaflets on the doors of homes in Jung's neighborhood. [51] ¶ 47. The leaflets and mailings generally contained information about the labor dispute or boycott and described Jung as a regular Ameristar customer who had not signed a pledge to support the boycott. [51] ¶ 47. In March 2016, after earlier unsuccessful attempts at contacting Jung in person and by phone, Local 1 representatives met Jung at her restaurant. [51] ¶¶ 44-46. The union representatives "[t]alked loudly" and asked Jung to stop patronizing Ameristar; Jung asked them to leave and not contact her again. [51] ¶ 46, Add'l ¶ 9; [47-6] at 21. Jung threatened to call the police, and the representatives left. [51] ¶ 46.

After that visit, Local 1 did not try to contact Jung by phone or in person again but continued distributing leaflets and sending mail about Jung's refusal to join the boycott to Jung's neighbors and acquaintances, businesses near Jung'srestaurant, customers of the restaurant, and pedestrians at a farmers' market. [51] ¶¶ 47-49, 52, 54. Some of the materials suggested the recipients ask Jung if she was a scab, and one mailing did not contain information about the boycott but rather notified recipients that a health inspection of Jung's restaurant found live mice and cockroaches on the premises. [51] ¶¶ 52, 54; Add'l ¶¶ 12, 15. Jung received two of the mailings, even though she had asked Local 1 to stop contacting her. [51] ¶ 54, Add'l ¶¶ 12, 15. And on several occasions, Local 1 displayed a banner at a farmers' market and on public sidewalks outside the strip mall where Jung's restaurant is located, asking readers to tell Jung to boycott Ameristar. [51] ¶¶ 51, 53. A nine-foot-tall inflatable rat stood beside the banner on one of these occasions. [51] ¶ 51, Add'l ¶ 16.

Three Local 1 representatives also returned to Jung's restaurant to distribute leaflets on the sidewalk outside the entrance. [51] ¶ 49. One of Jung's customers showed Jung the leaflet they were passing out, prompting Jung to call the police. [51] ¶ 49. The police told Jung that the owner of the strip mall could request that the union representatives leave. [51] ¶ 49. The property owner did just that after receiving a call from Jung, and the representatives left. [51] ¶ 49.

Dennis Tossi, Larry Kinoshita, Monir David, and Bryan Chiappetti are other former (or current) Ameristar regular customers who experienced similar conduct from Local 1. [51] ¶¶ 22, 33, 55, 62. Local 1 distributed leaflets and mailings about each of them (similar in content to the ones about Jung) to the customers themselves and the customers' professional and personal acquaintances, neighbors,and others. See, e.g., [51] ¶¶ 27, 36, 59, 69. In addition to the written campaigns, Local 1 took other action toward each customer.

Tossi, the executive director of a mental health facility, received a phone call in April 2016 from a Local 1 representative to discuss the Ameristar boycott. [51] ¶ 63, Add'l ¶ 27. During the brief call, Tossi asked the caller how he got his phone number, and when the question went unanswered, Tossi hung up. [51] ¶ 63. Local 1 did not speak with Tossi again after that. [51] ¶ 63. Union representatives did visit Tossi's workplace twice, but he was not present either time. [51] ¶ 65. On the second visit, the representatives were asked to leave, which they did, and Local 1 never returned. [51] ¶ 65. Twice, Local 1 representatives displayed a banner on a public sidewalk outside SIR Management, the parent company of Tossi's employer, that urged readers to ask Tossi to support the boycott. [51] ¶ 70, Add'l ¶¶ 30-31. Local 1 representatives also tried unsuccessfully to speak with SIR Management's CEO at work and distributed leaflets at the CEO's neighborhood block party that directed recipients to ask the CEO and his wife why they had not met with Local 1. [51] ¶ 68, Add'l ¶¶ 30, 32. Two Local 1 representatives went to Tossi's adult daughter's workplace and asked her whether they could speak to her about the boycott. [51] ¶ 72. Tossi's daughter declined and asked the representatives to leave, which they did. [51] ¶ 72.

Kinoshita, a dentist, received calls from Local 1 in April and May 2015; Kinoshita returned the calls and asked that Local 1 not call him again. [51] ¶ 57, Add'l ¶ 19. The subsequent leafleting and mailing campaign informing Kinoshita'sacquaintances of his failure to support the boycott included a letter that truthfully stated Kinoshita's dental license was suspended because he failed to pay income taxes and Kinoshita did not have an active controlled substance license, information gleaned from publicly available records. [51] ¶ 58. And twice, Local 1 displayed a banner on a public sidewalk near Kinoshita's office, reading "Tell Larry Kinoshita to Boycott Ameristar." [51] ¶ 60.

David, a truck driver, received a call from a Local 1 representative in April 2016, in which the representative said things like "I don't want you to go there no more" and "you better not fucking show up over there again" and concluded with David hanging up. [51] ¶ 35, Add'l ¶ 36; [49-3] at 270-71. A union representative also took photographs of a limousine and boat that were parked in David's home driveway. [51] Add'l ¶ 38; [50-1] at 21.

Chiappetti, owner of a meat company, spoke to Local 1 representatives on the phone twice, and representatives made two unsuccessful attempts to visit Chiappetti at work. [51] ¶¶ 24-25. Local 1 representatives also visited the company that handles packaging for Chiappetti's meat business and told the company they wanted Chiappetti to support the Ameristar boycott. [51] ¶ 26. Local 1 made phone calls to about five people who might know Chiappetti, including his brother, asking for help with persuading Chiappetti to support the boycott. [51] ¶ 29.

III. Analysis

A. Secondary Labor Activity

Secondary labor activity is not directed at Company A, with whom the union has its primary dispute, but rather Company B, a secondary, neutral entity thatdoes business with Company A. See Int'l Bhd. of Elec. Workers, Local 501 v. N.L.R.B., 181 F.2d 34, 37 (2d Cir. 1950) ("The gravamen of a secondary boycott is that its sanctions bear, not upon the employer who alone is a party to the dispute, but upon some third party who has no concern in it. Its aim is to compel him to stop business with the employer in the hope that this will induce the employer to give in to his employee's demands."). Sometimes the labor activity extends further down the chain, reaching entities that do business with Company B and so on. Here, the idea is that appealing to Ameristar's customers (who are neutral to Local 1's primary dispute with Ameristar) will cause the customers to put pressure on Ameristar to comply with Local 1's demands. Secondary labor activity can take many forms, from asking customers to speak with the primary target in support of the union to threatening the customers if they continue to do business with the primary target.

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