Trade unions may use flash mob events as means of industrial action during a strike. This emerges from a decision of the German Federal Constitutional Court of 26 March 2014 by which it confirmed a ruling of the German Federal Labor Court stating that flash mob events are permitted as long as they are proportionate. In the German Federal Constitutional Court's view, the interpretation of the industrial action law by the German Federal Labor Court was not objectionable (case no.: 1 BvR 3185/09).

Trade Union called for Flash Mob Event in Berlin Retail Stores

In 2007, the trade union sued in the initial proceedings had called for a flash mob event in a supermarket affected by a strike in the Berlin retail sector, in which supermarket strikebreakers were working. Around 40 to 50 persons informed by the trade union via text message gathered for an event taking between 45 and 60 minutes during which they bought penny goods and thereby blocked the cash desks area for some time. Furthermore, they filled the trolleys and left them in the supermarket. The Berlin-Brandenburg trade association wanted to have the trade union enjoined from calling for further flash mobs. However, it had no success before the labor courts in any instance. It appealed against this defeat with a constitutional complaint and particularly invoked an infringement of the freedom of association pursuant to Art. 9 (3) of the German Basic Law (Grundgesetz/GG).

Industrial Action Not Restricted to Strike and Lockout

The German Federal Constitutional Court did not accept the constitutional complaint. The challenged decisions of the non-constitutional courts do not infringe the appellant's freedom of association protected by Art. 9 (3) of the German Basic Law. According to the German Federal Constitutional Court, the protection granted by Art. 9 (3) of the German Basic Law is not restricted to strike and lockout, the traditionally recognized means of industrial action. As a rule, Art. 9 (3) of the German Basic Law leaves the choice of means which the associations deem appropriate for achieving their purposes to their own discretion. Disputed industrial actions are examined under the aspect of their proportionality. The use of industrial actions must not lead to a unilateral ascendancy in collective bargaining negotiations. Therefore, it is basically not objectionable that the German Federal Labor Court put its focus on the principle of proportionality.

No Infringement of the Basic Right for Freedom of Association

Consequently, the German Federal Constitutional Court does not deem that the appellant's freedom of association is infringed. In particular, it is taken into account that the risk that the flash mob event gets out of control can be increased by the participation of third parties in the flash mob, because less influence can be exerted over third parties. The Court therefore also imposes legal limits to the participation of third parties - which actually had been restricted in the initial proceedings. For example, the flash mob must be recognizable as an industrial action supported by a trade union, which also is of importance for damage claims of the employers in the event of unlawful actions. The German Federal Labor Court also intensively considered the issue of effective countermeasures which can be taken by the employers against a flash mob accompanying a strike. The assessment that the householder's right and the right to temporarily close the shop are effective means of defense is not objectionable under constitutional law.

Under the constitutional law aspect of clarity and definiteness, there are no doubts that the German Federal Labor Court is right in judging that flash mob events are not generally impermissible on the basis of applicable law subject to derivations made from the principle of proportionality.

Practical recommendation

Employers must expect that flash mob events become an ever more popular means of industrial action in times of progressive development of networks by Facebook, Twitter and other Internet media. The employer must have the chance to react on flash mobs which considerably disturb the operating procedures. In order to be able to defend themselves against flash mobs with some effectiveness, the employers should integrate their householder's right into their preventive defense strategy and restrict their general consent for access to the business premises when actions foreshadow. This can be achieved by well-visible posters in the entrance area by which the retailer, for instance, indicates that it is only allowed to enter the store for the purpose of purchase and that it is in particular not allowed to fill trolleys without intending to buy something or to pay goods with inadequate quantities of small coins.

Unfortunately, the Court up to now has no hands-on and realistic approach when it mentions effective means of defense of the employer which in fact prove to be unsuitable in most cases. However, a limit is set where a flash mob is disproportionate and in its effects exceeds the traditional means of industrial action. In any event, sabotage and blockades which at least are to be assumed if the measure from the start gives the impression that it does not represent purposeful use remain impermissible. Of course, the protection provided by the German Basic Law still does not extend to any criminal offences.