Tuesday, July 25, 2006

Does Multi-Million Dollar Defamation Verdict Against Union Represent Further Erosion of Labor Rights?

UnitehereUnions being found liable for defamation for distributing defamatory organizational campaign materials is not an everyday occurence.  And when the verdict is for $17.3 million dollars against the union, that is really unusual.

Thanks to the Michael Fox at Jottings By An Employer's Lawyer for the details:

It probably sounded like a good idea at the time -- involved in a labor dispute with the company that did the laundry for Sutter Health hospitals, why not mail out post cards to women of child bearing age telling them that the hospitals used dirty linens.

According to a story in the Sacramento Bee, the post card sent to 11,000 in Northern California said, "you may be bringing home more than your baby if you deliver at a Sutter birthing center."

Unlike the recent Guiness ad, "Brilliant" is hardly the word being uttered about this bright idea at the headquarters of Unite Here following Friday's verdict in the lawsuit brought by Sutter, Union Must Pay Millions in Defamation Case. How "un-brilliant?" $17.3 million according to the jury.

The union plans to appeal this verdict, but this case may signal a further erosion of the rights unions and their members have to engage in certain conduct to support their organizational or collective bargaining goals (from the Sacramento Bee story):

"What this represents is the further criminalization of labor union organizing," said Nelson Lichtenstein, a history professor at the University of California, Santa Barbara, and director of the Center for the Study of Work, Labor and Democracy associated with the university. "If this is upheld, it's another step in the destruction of labor law."

Lichtenstein pointed out that during most union protests, workers carry signs and make charges that could be considered defamatory.

" 'Wal-Mart is evil' or 'The company is unfair' -- those are all statements that you would make at a picket line. Does that mean you can get sued for defamation?" he asked.

"This kind of ruling results in a censoring of the picket line."

Is this just a modern day example of a Danbury Hatters-like case as the story above suggests?



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If Lichtenstein means to say that an organizing campaign gives a union absolute immunity for any statements it makes, no matter how damaging, his position is absurd. That seems like a modern version of the long-discredited idea that organizers shouldn't be criminally or civilly liable for their physical actions. That the tort in this case was verbal rather than physical doesn't change the equities. (In one newspaper article Lichtenstein confuses criminal and civil cases by claiming that this decision "criminalizes" union conduct.)

Nor are Lichtenstein's analogies apt. The union didn't say "Angelica Textiles is evil" or "Angelica Textiles is unfair." Instead, it wrote to a hospital's potention patients claiming that the sheets the hospital used contained blood, feces, and possible pathogens. Other news reports of the case indicate that the union had absolutely no basis for those claims and knew that it didn't.

That's not "robust debate" against an organizing target. Rather, it was deliberate defamation intended to harm a secondary employer. As the jury found, the union acted with "fraud, malice or oppression." The union has no more protection from liability for those actions than it would if it assaulted patients or blocked the entrances.

Posted by: Dennis Nolan | Jul 26, 2006 11:14:47 AM

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