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December 28, 2005
Go Away!: Novel Employee Lawsuit Against A Union
From the Wall Street Journal, a story about what happened when a group of employees got really annoyed with a union's attempt to organize them:
When a union organizer showed up unexpectedly at Elizabeth Pichler's Bethlehem, Pa., home on a cold Saturday afternoon in February 2004, she shut the front door on him.
"It annoyed me that anybody could go and get information about me and come to my house," says Ms. Pichler, a 64-year-old receptionist at uniform company Cintas Corp.
A handful of co-workers at the company's Emmaus, Pa., plant were also annoyed about visits to their homes and complained to their managers. They eventually learned that the union had traced their home addresses from license plates in the company parking lot. That made them angry enough to meet with lawyers provided by the company [emphasis added] and then file a suit in June 2004 alleging their privacy rights had been violated.
It's highly unusual for workers to bring a lawsuit against a union trying to organize, and the case is threatening to send ripples through the labor movement. Labor experts regard the joint campaign by Unite Here and the International Brotherhood of Teamsters to organize laundry workers and truck drivers at Cincinnati-based Cintas as the most important current union drive apart from the battle to persuade Wal-Mart Stores Inc. to let unions represent its workers.
Few thoughts. Notice it was the always helpful in-house labor counsel who was good enough to find these workers a lawyer to sue the union - 8(a)(1), 8(a)(3) charge right there?
Also, it is hard enough for union organizers to get equal access to workers they wish to organize. One of the reasons why unions have to track license plates in order to contact workers is that because they are not allowed to access company bulletin boards and meet with workers on-site, off-duty. Also, union organizers only have derivative Section 7 rights falling under the restrictive Lechmere test rather than the more lenient Republic Aviation test for employees.
Another question I have is whether an Excelsior list was ever provided so that this license plate tactic was unnecessary.
The rest of the WSJ story can be found here.
Hat Tip: Ronald Turner
Update: Ellen Danin (Wayne) provides the cites to the cases in question:
ELIZABETH PICHLER v. UNITE (UNION OF NEEDLETRADES, INDUSTRIAL & TEXTILE
EMPLOYEES AFL-CIO), et al., 228 F.R.D. 230 (E.D. PA. 2005) Class
certification case
ELIZABETH PICHLER v. UNITE (UNION OF NEEDLETRADES, INDUSTRIAL & TEXTILE
EMPLOYEES AFL-CIO), et al., 339 F. Supp. 2d 665 (E.D. PA. 2004). denial
of dismissal of complaint case
PS
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Thanks to Professors Bale and Secunda at Workplace Prof Blog for their post Go Away!: Novel Employee Lawsuit Against A Union and their pointer to the Wall Street Journal article In Novel Tactic, Cintas Workers Sue Unions. Professor Runkel has an early ... [Read More]
Tracked on Dec 31, 2005 7:58:07 PM
Comments
Thanks for the link to the full article. It has some information that puts a different light on the suit against UNITE HERE:
"Workers in the lawsuit said their rights had been violated under the little-known Driver's Privacy Protection Act of 1994, which prohibits the disclosure and use of personal information obtained through motor vehicle records, with a limited number of exceptions, including use by courts or law-enforcement agencies. This past June, U.S. District Judge Stewart Dalzell granted class-action status to the case and said that any worker whose license plate allowed the union to obtain personal information from motor vehicle records between July 1, 2002 and Aug. 2, 2004, could stand to receive $2,500 in damages for each time the union used it to make home visits or mail materials, for example. . . ."
"According to legal documents in the case, union organizers admitted to gaining access to motor vehicle records from Pennsylvania and eight other states with the aid of a private investigator. After Judge Dalzell ruled that only 12 plaintiffs could pursue legal action against the Teamsters, the union, without admitting wrongdoing, reached a settlement with them for a total of $6,000. The liability facing Unite Here, excluding punitive damages, will depend largely on the size of the class and the number of times the union tried to contact workers, but labor law experts said the liability could rise to tens of millions of dollars. "Based on the evidence adduced so far, Unite faces an uphill battle to avoid liability," wrote Judge Dalzell in a May 2005 opinion."
Assuming those paragraphs are correct, the suit is valid. Assuming again that the employees asked the employer for help, I doubt that providing lawyers to help employees with a valid suit would constitute a ULP. (Certainly not under the current Board.) One lawyer quoted in the article summed it up nicely: "The lawsuit was 'devilishly clever on the part of the company, no question about it,' says Mr. Canoni of Nixon Peabody. 'I mean, how many people knew about this law?'"
If I read the article correctly, the union is still trying to get enough employees to meet the 30% requirement for filing a petition. If so, there wouldn't be an Excelsior list yet.
On the broader question, yes, union organizers do face a difficult task in reaching employees. On the other hand, I can fully understand why the plaintiffs object to the union violating the law to get their personal information and visit their homes. What better way to stop those violations than to enforce one's statutory rights?
Posted by: Dennis Nolan | Dec 28, 2005 8:44:41 AM
First, this illustrates a problem in union organizing. The Excelsior list isn't available until *after* the union has filed for an election. But unions (usually) won't file for elections unless and until they've
done enough preliminary work to know whether they could plausibly win the election. But it's often hard for unions to find employees to figure out whether they could plausibly win the election because of Lechmere, etc.
Second, Ellen Danin came up with a couple of ideas that I hope she doesn't mind me passing on here. First, part of this Drivers Privacy law allows exceptions for acts taken "in anticipation of litigation" and for information to be used in agency hearings. Second, one might think there's a plausible argument for pre-emption. But apparently the lower court didn't buy it.
Posted by: Joseph Slater | Dec 28, 2005 7:46:18 PM
