Request By:
Mr. Kenneth P. Alexander
Staff Legal Officer
Paducah Police Department
P.O. Box 2267
Paducah, Kentucky 42001
Opinion
Opinion By: Steven L. Beshear, Attorney General; Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter presenting a long list of questions, all of which revolve around the meaning and interpretation of the term "labor dispute" as it appears in KRS 61.300(4) and 61.310(4). The statute you refer to as KRS 61.300(1)(d) now appears as KRS 61.300(4).
You state that several members of the police department work part time during their off duty hours at a local hospital as security guards. The hospital has begun an expansion project with the construction work being done by several companies under various contracts. Some of the contractors are using union labor and others are not. Recently pickets were placed outside the entrances to the construction site by some of the unions with signs naming specific contractors as using nonunion workers. The hospital itself has not yet been the subject of the signs of the pickets. The construction site has been fenced off from the other hospital property and only the construction workers are permitted inside that area.
The police officers who are employed at the hospital are concerned as to whether their employment with the city may be jeopardized in view of the provisions of KRS 61.300(4) and 61.310(4). It remains unclear as to what might transpire on the construction site but the police officers serving as hospitsal security guards do not want their actions to be interpreted as involvement in a "Labor dispute."
KRS 95.015, the so-called "moonlighting" statute, permits police officers to seek and obtain employment during their off-duty hours without any restrictions or limitations being imposed by governmental units. However, KRS 61.310(4), dealing in part with off duty employment of peace officers, provides:
"A peace officer may, while in office, and during hours other than regular or scheduled duty hours, act in any private employment as guard or watchman or in any other similar or private employment. However, he may not participate directly or indirectly, in any labor dispute during his off-duty hours. Any peace officer who violates this subsection may be removed from office, under the provisions of KRS 63.170."
KRS 61.300(4) states:
"No person shall serve as a deputy sheriff, deputy constable, patrol or other nonelective peace officer or deputy peace officer, unless:
"He has not within a period of two (2) years hired himself out, performed any service, or received any compensation from any private source for acting, as a privately paid detective, policeman, guard, peace officer or otherwise as an active participant in any labor dispute, or conducted the business of a private detective agency or of any agency supplying private detectives, private policemen or private guards, or advertised or solicited any such business in connection with any labor dispute. "
In connection with the apparent inconsistencies between KRS 61.300(4) [formerly KRS 61.300(1)(d)] and KRS 61.310(4), we said in OAG 78-456, copy enclosed, that the prohibition in KRS 61.300(4) is not a prohibition against serving as a private security guard or policeman, per se, but it is a prohibition against serving as such while an active participant in any labor dispute. Any other interpretation would conflict with KRS 61.310(4) which permits a peace officer while off duty to secure private employment as a guard if he does not participate in a labor dispute during those off duty hours.
We are not aware of any reported Kentucky decision which defines the term "labor dispute" in connection with its use in KRS 61.300(4) and 61.310(4). However, the Kentucky Court of Appeals (now the Kentucky Supreme Court) in a 1963 decision adopted a definition of "labor dispute" in connection with the state statutes dealing with unemployment compensation. In Johnson v. Kentucky Unemployment Insurance Commission, Ky., 367 S.W.2d 253, 255 (1963), the court said:
"It is clear from the opinions in Ward v. Barnes, Ky. 1954, 266 S.W.2d 338, and Barnes v. Hall, 1940, 285 Ky. 160, 146 S.W.2d 929, 935, that this court has accepted the definition of 'labor dispute' set forth in the Norris-LaGuardia Act, 29 U.S.C.A. § 113 (c), enacted in 1932, and in the Wagner Act (National Labor Relations Act) , 29 U.S.C.A. § 152 (9), enacted in 1935, with specific reference to KRS 341.360(1), the statutory section involved in this case. . ."
Since the Norris-LaGuardia Act and the National Labor Relations Act define "labor dispute" in a very similar manner, we will set forth only that definition which appears in the National Labor Relations Act [29 U.S.C.A. § 152(9)]:
"The term 'labor dispute' includes any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee."
We, of course, do not know whether the Kentucky Supreme Court would adopt the definition of "labor dispute" set forth in the Norris-LaGuardia Act and the National Labor Relations Act in connection with the use of that term in KRS 61.300(4) and 61.310(4). Assuming, however, that the court might adopt that definition, we will set forth a few cases which have attempted to interpret it, particularly with reference to picketing which seems to be your major concern at this point.
In Soft Drink Workers Union Local 812 v. N.L.R.B., 657 F2 1252 (D.C. Cir. 1980), the court considered a situation involving picketing. The court said that even though the union neither represents nor seeks to represent any employees of the employer and thus has no conventicnal labor dispute with the employer, where the union's goal is economic, not political, and where the union desires to secure more employment for its members the union, which was picketing the employer's retail store, may well be involved in "labor dispute" as defined by the National Labor Relations Act [29 U.S.C.A. § 152 (9)].
In Mountain Navigation Co., Inc. v. Seafarers' International Union of North America, 348 F.Supp. 1298 (W.D. Wisc. 1971), it was argued that no "labor dispute" existed under the National Labor Relations Act. The court said that where the goal of picketing by the unions at a grain elevator, where workers were to load ships of a foreign corporation owning and operating ships of foreign registry operationg ships of foreign registry manned by alien crews, was to secure employment for more members of the unions, the motivation was economic, not political and mandates a determination that a "labor dispute" does exist between the union and the owners of the ships.
The court said a "labor dispute" does exist under the National Labor Relations Act where the picketing of a grain elevator results because of a dispute between a water carrier and an affiliated union. Norris Grain Co. v. Nordaas, Minn., 46 N.W.2d 94 (1950). The picketing of a construction project by members of a union bearing signs that a specific subcontractor had not conformed to fringe benefits and to conditions of a particular union local was at least arguably a "labor dispute" within the provisions of the National Labor Relations Act. Pokigo v. Local No. 719 International Brotherhood of Electrical Workers, N.H., 213 A.2d 689 (1965).
Note, however, the case of Sheetmetal Workers' International Association, Local Union No. 223 v. Florida Heat and Power, Inc., Fla., 214 So.2d 783 (1968), where the court said a union's picketing of a job site with signs stating that a specific employer paid sheetmetal workers substandard wages, without making any demands or indicating what it sought from the employer, who did not employ any sheetmetal workers or do sheetmetal work, did not involve a "labor dispute" under the National Labor Relations Act.
While we will attempt to respond generally to your questions, we cannot supply any specific answers. We do not know what definition of "labor dispute" the appellate courts of this state might adopt relative to the use of that term in KRS 61.300(4) and 61.310(4). In addition, whether a person was involved in a labor dispute is a question of fact on a per case basis. We do not have enough specific information relative to the conduct of the parties involved such as the precise nature of the picketing, the specific content of the signs of the pickets and the purported objective of the picketing. Only a court of law can specifically answer your questions.
In view of the conditions and limitations set forth above and as a general response to your questions, we make the following observations:
It would appear that hospital security guards are not involved in a "labor dispute" so long as the pickets placed by the union at the hospital construction site are carrying informational signs on which only the contractor's name is mentioned.
We cannot say whether the naming of the hospital on the signs of the pickets might place the hospital security guards in a labor dispute as we do not know the precise contents of the signs and whether such language would constitute a labor dispute between the union and the hospital.
The placement of pickets outside entrances to hospital property used by regular employees and the public rather than just the entrances to the construction site would not appear to constitute a labor dispute involving the hospital unless the pickets and their signs were directed against the hospital rather than the contractor.
A labor dispute between a contractor and his employees will not necessarily involve the hospital in a labor dispute.
We do not have enough information to determine whether the presence of security guards at the actual construction site would involve them in a labor dispute.
Several of your questions concern the extent of permissible activities by hospital security guards under certain factual situations. If the hospital at which the guards are employed is involved in a labor dispute, those guards may not be able to continue to work for the hospital and retain their positions as policemen. If the hospital is not involved in a labor dispute and the guards observe illegal activity by or against pickets, they should promptly notify the appropriate law enforcement authorities.