Fighting Fire With Fire
The postcard may have been intended to help a labor union achieve its organizing goals. Instead, it resulted in a $17 million judgment for defamation.
The card in question was sent by Unite Here to more than 11,000 patients and prospective patients of a northern California hospital chain’s maternity ward. It warned that you might be “bringing home more than your baby” thanks to reports that the hospital’s laundry contractor “does not ensure that ‘clean’ linens are free of blood, feces and harmful pathogens.”
While the union defended its warning as true, some suggest it was part of a comprehensive campaign to gain corporate concessions. In this case, Unite Here may have hoped the mailing would prompt the hospital network, Sutter Health, to lean on the launderer to resolve a labor dispute. Instead, the hospital sued for defamation. On July 21, a California jury hit the union with a $17 million judgment—or about $1,500 per postcard.
Defense lawyers say the verdict is the largest to date in a comprehensive campaign, and it shows how pulling out the legal stops can pay off for companies. The union plans an appeal seeking a higher standard of proof and arguing the First Amendment protects its conduct.
Experts say comprehensive campaigns are becoming more common as unions seek concessions that make organizing easier. Their goal is to persuade an employer to sign a neutrality agreement, meaning the company won’t speak against unionizing efforts, and to agree to a “card check” in which a company waives its statutory right to secret ballots in a vote to unionize.
Unions use a variety of tactics in such campaigns, issuing press releases, filing lawsuits and winning backing from civil rights and activist groups on particular issues.
The “labor movement as a whole has gotten much more aggressive about organizing, which is a very, very good thing,” says Brent L. Garren, a New York City lawyer and senior associate general counsel of Unite Here. Unions view the election process governed by the National Labor Relations Board as skewed to favor employers, he says, and use “a wider range of tactics to level the playing field.”
But San Francisco employment lawyer F. Curt Kirschner has another definition of comprehensive campaigns: blackmail. Kirschner, who is one of the attorneys who represented Sutter Health, says corporate campaigns can “include investigations into the company, including background information a company would not like the public to see.”
Countering With Creativity
With so much at stake, company lawyers are fighting back harder—and smarter, says University of Tennessee Law School professor Jeffrey M. Hirsch. “As unions become more creative, labor lawyers on both sides are going to have to be equally as creative,” he says.
A case out of the Eastern District of Pennsylvania is a prime example. At issue was a campaign against Cintas Corp., a uniform supplier, in which union organizers made home visits to company workers. Through those visits, organizers uncovered information that led to a variety of lawsuits against the company in state and federal court plus charges with the Equal Employment Opportunity Commission, the Occupational Safety and Health Administration and the NLRB.
Cintas fought back. It discovered that in some cases, organizers obtained workers’ home addresses by writing down their license plate numbers and searching records of the Department of Motor Vehicles—in violation of the federal Drivers Privacy Protection Act of 1994. This act became the focal point of a lawsuit filed by workers against the union, which was funded by Cintas.
On Aug. 30, the court entered summary judgment against Unite in favor of the workers. (The union is appealing the decision.) Pichler v. Unite, No. 04-2841.
“These are statutes lawyers maybe never have considered,” Hirsch says. “And the traditional union attorneys now need to be aware of them.”