Lawsuit Takes On Aggressive Union Organizing Tactics




Incognito

Originally uploaded by brutal.

Q. What does the photo of the license plate have to do with the title of this post?

A. The aggressive labor union organizing tactic at issue was writing down employee license plate numbers in plant parking lots, using them to get employee names and addresses, and using this information to visit employees at home.

Here’s the story, in which the union ironically fights fire with fire, adopting tactics arguably as invasive of employee rights — and illegal — as those used by the most antiunion employer:

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 . . . 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 and then file a suit in June 2004 alleging their privacy rights had been violated.

Wall Street Journal (via Pittsburgh Post-Gazette): “In novel tactic, Cintas workers sue unions”

In an indication of how slowly legal news often flows to the mainstream press, the court issued its decision May 31, 2005, yet this article wasn’t written until December 27, 2005.

Not to be too critical: without the efforts of the WSJ’s Kris Maher, this blogger would likely never have heard of this fascinating case. And then there’s my own inexcusable 11-day delay in getting this post up!

This is another very long post, so again I’ll pause here to give you a preview.

  • The statutory claim
  • Lawful, noninvasive union choices
  • One of the most important current union campaigns?
  • A significant chilling impact (not):
  • The company’s involvement in the lawsuit
  • The facts of this case would make a great law school exam
  • More on the Cintas case
  • Other resources on union organizing
  • Related reading

The statutory claim

Workers . . . 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 . . .

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.

The case is Pichler v. UNITE (Union of Needletrades, Industrial & Textile Employees AFL-CIO). The class-action decision is reported at 228 F.R.D. 230 (E.D. Pa. 2005).

Lawful, noninvasive alternative union tactics

The labor union had many alternative ways to reach employees without snooping in state records and knocking on employee doors. In fact, a story about a local battle of this nationwide Cintas organizing campaign, which targeted New Jersey Gujarati employees (immigrants from the Indian state of Gujarat), notes the following other methods:

[H]olding meetings in Edison [NJ]’s Hindu church, getting stories in the local Gujarati press and on TVAsia . . . , and bringing down Gujarati UNITE members from a unionized Liz Claiborne plant elsewhere in Jersey.

Home visits are fine and may be useful to the union, if the employee is willing. If they are too intimidated to risk being seen talking to a union organizer in the parking lot while the organizer writes down the data, the union should find a way to deal with that fear first, and then get consent to further discussions, at home or elsewhere.

Bottom line: I think surprise visits to homes of unsuspecting employees are at least as likely to turn employees against the union as to gain support, especially if the employees feel the union had to do some serious snooping to get their names and addresses.

One of the most important current union campaigns?

The WSJ story describes the prominence of “the joint campaign by Unite Here and the International Brotherhood of Teamsters to organize laundry workers and truck drivers at Cincinnati-based Cintas,” calling it “the most important current union drive apart from the battle to persuade Wal-Mart Stores Inc. to let unions represent its workers,” and noting “the staunch antiunion position of Cintas.”

Is the “importance” of a union organizing drive a function of the resistance put up by the employer? The size of the employer? The disparity between the employer’s wages and benefits and those of unionized employers in the same industry? All three measures appear to fit both Wal-Mart and Cintas.

A significant chilling impact (not)

The WSJ also says:

Unions traditionally canvassed door to door as a way to sell their message to workers, but most often rely on workers to pass along home addresses of co-workers, say labor experts. A victory for the plaintiffs in this case could cast a shadow over such recruiting methods even if home addresses are obtained by other means.

The lawsuit will have a “very chilling effect” on workers’ willingness to support the organizing drive at Cintas, says Marick F. Masters, a professor of business administration at the University of Pittsburgh.

Spare me! Given the complete lack of success of this organizing campaign over a number of years, these workers appear already well-chilled, if not frozen. (Shaken, not stirred by the prospect of union representation?)

And a little perspective please. Once a union has filed a petition for an election, which requires only a 30% “showing of interest,” and an election is set, an employer is obligated to provide employee names and addresses, so this “chilling effect” is only temporary.

What are the chances a union can get a majority of the employees to vote for union representation if it can’t get 30% of employees to at least agree to an election (they don’t have to commit to voting for the union) without stalking them to their homes using their license plate numbers? I don’t think the odds are very good.

The company’s involvement in the lawsuit

The WSJ quotes “some labor experts” as arguing the lawsuit “would not have gotten off the ground without support from Cintas.” Here are some facts showing the company’s intimate involvement, drawn from the class-action opinion:

  1. Some employees the union visited asked an HR representative how the union could have obtained their home addresses. She had no explanation, but later told them they could meet with a lawyer at the plant.
  2. When he learned of the employee complaints, the company’s outside counsel contacted another law firm to see if it wanted to represent the employees. Eventually, each plaintiff retained the firm to represent them in the lawsuit.
  3. Under the contingent fee agreements, the company agreed to advance the fees and costs at the firm’s normal billing rates. If the plaintiffs prevailed, the firm would reimburse the company solely from the fees and costs it received from the plaintiffs.
  4. In spite of this unusual financing relationship, the company agreed to “respect and . . . not interfere with” the firm’s “attorney-client relationship with the plaintiffs or the independence” of its “professional judgment.” Nonetheless, the firm promised to consult with the company “to discuss the costs associated with anticipated legal actions.”
  5. Although the company maintained it did not review the complaint before it was filed, its public relations agent did so and discussed it with at least one company employee, drafting a press release the firm issued after it filed the complaint.
  6. During discovery, the company and the plaintiffs entered into a common interest agreement purporting to extend the attorney-client privilege and work product privilege to any materials shared with each other.

The facts of this case would make a great law school exam

Some of the questions I’d ask:

  1. Analyze the union’s possible claims against the company based on the filing of the lawsuit. Include both state and federal claims and the company’s defense that it is not a party to the lawsuit.
  2. Interpret the statutory provision, a “person who knowingly obtains, discloses or uses personal information, from a motor vehicle record, for a purpose not permitted under this chapter shall be liable” in light of the union’s argument that it “cannot be held liable unless [it] knew that the purpose for which the information was obtained, disclosed, or used was impermissible.”
  3. Discuss the merits of a possible union defense that its conduct in obtaining the employee names was protected by the National Labor Relations Act. Is this an issue that should be decided by the NLRB in the first instance.
  4. Discuss the ethical implications of the firm’s agreement with the company, including possible conflicts of interest, the propriety of advancing the costs, and whether the agreement will succeed in avoiding a waiver of privilege .

Ah . . . one of the great things about being a law school prof would be writing such torturous questions and not having to write the answers!

More on the Cintas case

From a practical standpoint, Data Janitor wisely comments: “If this lawsuit really comes from and is supported by the workers at the plant, I don’t see how organized labor has much of a chance of growing or even surviving in its current form.”

politicalaffairs.net: “Cintas Retaliates Against Union with Lawsuit”

Other resources on union organizing

Related reading

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