Strategic Use of Environmental Laws by Labor Unions: Legitimate Labor Tactic or Environmental Extortion?
By E. Thayer Nelson
INTRODUCTION
During the last two decades the environmental movement in the United States has achieved both legitimacy and influence in the American political arena. While the enactment of important environmental legislation has undoubtedly effected widespread beneficial change, it has also produced unanticipated side effects. One such phenomenon is the recent coalition formed between labor union groups and environmental lawyers who work in tandem to frustrate developers seeking to build large projects without employing union workers. This unlikely alliance has the following operative strategy: union leaders approach developers to try to persuade them to hire union contractors and subcontractors. If the developers refuse, the unions, with the help of environmental groups, review the plans of the project under development and in most cases expose or threaten to expose the job's potential environmental violations either to permit licensing boards or to the courts. As a result of these tactics, developers who refuse to grant contracts to unions face costly delays as they fight the environmental suits or remedy environmental violations.
Developers have characterized this practice as “environmental extortion.” They claim that the unions' sole objective is to force developers to hire union labor by threatening certain, if indirect, financial retribution. This strategy is not only irksome to developers, but also puts non-union contractors and subcontractors at an unfair competitive disadvantage. Even if an individual developer resists union demands, the cost of future enterprises may be affected; industry has claimed that many subsequent project owners are more likely to hire union laborers in order to avoid the expensive delays and embarrassing exposure that beset their stubborn predecessors. Available information is not sufficient to support a generalization about the total economic costs resulting from these union tactics, but individual developers have estimated losses in the millions.
Union leaders and the environmental lawyers who aid them reject the characterization of their activities as “environmental extortion.” Although union representatives admit that they raise environmental claims as a bargaining chip in order to influence developers to use union labor, they emphasize that benefits to the environment and union well-being are directly linked. According to Tom Adams, an environmental lawyer allied with several California unions, “poorly conceived projects are anathema not only to environmentalists, but to labor, as well, because reaction to the projects can result in construction moratoriums.” Not surprisingly, the union groups prefer to keep the focus on what they characterize as the careless, profit-maximizing values of the developers. As one representative put it, “ ‘it's no surprise that the same companies who want to exploit their workers also want to exploit the environment. . . . They have an irresponsible corporate attitude.”’
Whether characterized as “extortion” or something more benign, the tactics used by the unions raise important public policy questions. Legal challenges to the unions' strategy have so far been unsuccessful. Union representatives claim that these judicial triumphs establish the legitimacy of their actions. Part II of this Note questions this contention en route to arguing that the unions' actions are more destructive than they may appear at first and are normatively undesirable when viewed in the context of the goals of federal environmental legislation. Part III examines the unsuccessful attempts of developers to combat the problem in the courts, focusing on two relatively well-documented cases, USS-POSCO Industries v. Contra Costa County Building & Construction Trades Council, AFL-CIO and Petrochem Insulation, Inc. v. Northern California and Northern Nevada Pipe Trades Council, and also examines academic discussion of the problem to date. Part IV presents a possible alternative to the combative strategies attempted thus far, suggesting that state court actions for abuse of process could be advanced to hold unions liable for their irresponsible use of the environmental laws. Part IV also discusses the problems inherent in an application of this tort measure, including the possibility that these claims could be preempted by federal labor laws or struck down as Strategic Lawsuits Against Public Participation. Part V, recognizing the limitations of the proposed abuse of process claims, explores possible alternatives and the incentive effects that each would produce.
During the last two decades the environmental movement in the United States has achieved both legitimacy and influence in the American political arena. While the enactment of important environmental legislation has undoubtedly effected widespread beneficial change, it has also produced unanticipated side effects. One such phenomenon is the recent coalition formed between labor union groups and environmental lawyers who work in tandem to frustrate developers seeking to build large projects without employing union workers. This unlikely alliance has the following operative strategy: union leaders approach developers to try to persuade them to hire union contractors and subcontractors. If the developers refuse, the unions, with the help of environmental groups, review the plans of the project under development and in most cases expose or threaten to expose the job's potential environmental violations either to permit licensing boards or to the courts. As a result of these tactics, developers who refuse to grant contracts to unions face costly delays as they fight the environmental suits or remedy environmental violations.
Developers have characterized this practice as “environmental extortion.” They claim that the unions' sole objective is to force developers to hire union labor by threatening certain, if indirect, financial retribution. This strategy is not only irksome to developers, but also puts non-union contractors and subcontractors at an unfair competitive disadvantage. Even if an individual developer resists union demands, the cost of future enterprises may be affected; industry has claimed that many subsequent project owners are more likely to hire union laborers in order to avoid the expensive delays and embarrassing exposure that beset their stubborn predecessors. Available information is not sufficient to support a generalization about the total economic costs resulting from these union tactics, but individual developers have estimated losses in the millions.
Union leaders and the environmental lawyers who aid them reject the characterization of their activities as “environmental extortion.” Although union representatives admit that they raise environmental claims as a bargaining chip in order to influence developers to use union labor, they emphasize that benefits to the environment and union well-being are directly linked. According to Tom Adams, an environmental lawyer allied with several California unions, “poorly conceived projects are anathema not only to environmentalists, but to labor, as well, because reaction to the projects can result in construction moratoriums.” Not surprisingly, the union groups prefer to keep the focus on what they characterize as the careless, profit-maximizing values of the developers. As one representative put it, “ ‘it's no surprise that the same companies who want to exploit their workers also want to exploit the environment. . . . They have an irresponsible corporate attitude.”’
Whether characterized as “extortion” or something more benign, the tactics used by the unions raise important public policy questions. Legal challenges to the unions' strategy have so far been unsuccessful. Union representatives claim that these judicial triumphs establish the legitimacy of their actions. Part II of this Note questions this contention en route to arguing that the unions' actions are more destructive than they may appear at first and are normatively undesirable when viewed in the context of the goals of federal environmental legislation. Part III examines the unsuccessful attempts of developers to combat the problem in the courts, focusing on two relatively well-documented cases, USS-POSCO Industries v. Contra Costa County Building & Construction Trades Council, AFL-CIO and Petrochem Insulation, Inc. v. Northern California and Northern Nevada Pipe Trades Council, and also examines academic discussion of the problem to date. Part IV presents a possible alternative to the combative strategies attempted thus far, suggesting that state court actions for abuse of process could be advanced to hold unions liable for their irresponsible use of the environmental laws. Part IV also discusses the problems inherent in an application of this tort measure, including the possibility that these claims could be preempted by federal labor laws or struck down as Strategic Lawsuits Against Public Participation. Part V, recognizing the limitations of the proposed abuse of process claims, explores possible alternatives and the incentive effects that each would produce.
