Contact between union organizers and workers is critical during union organizing drives. However, these days, making that contact is tough. Many workers drive to work and park in a company parking lot. Thanks to the US Supreme Court’s 1991 decision in Lechmere union organizers may be committing a trespass when they try to organize on a parking lot, even one like that in Lechmere that was open to the public.
Lechmere was Justice Thomas’ first opinion, by the way, and in it the majority overrruled the NLRB’s decision allowing union access.
The Third Circuit Court of Appeals just made organizing even tougher in a new case handed down Tuesday, September 9. So what's new there? Business as usual.
crossposted from unbossed
These days, many union organizing drives involve – not contact – but getting worker contact information so the union organizers can make contact with workers away from the workplace. Studies beginning in the early 1990s showed that making house calls improved union organizing success dramatically.
One way to get that information was to copy down license plate tags and run them through state vehicle license records. However, in 2004 when UNITE organizers (now UNITE-HERE) were doing just that, they got sued under an obscure 1994 law - the Driver's Privacy Protection Act of 1994. It prohibits the disclosure and use of personal information obtained through motor vehicle records. It may be that changes in organizing tactics prompted the passage of this law, but apparently more important was that there was a lot of concern over stalkers and victims of stalkers. In any case, the statute is unclear as to whether it was meant to sweep union organizing into the banned activity.
There were two lower cases, the first of which denied the union’s motion to dismiss the complaint. Pichler v. UNITE (Union of Needletrades, Industrial & Textile Employees AFL-CIO), et al., 339 F. Supp. 2d 665 (E.D. PA. 2004). The second certified a class action -
Pichler v. UNITE (Union of Needletrades, Industrial & Textile Employees AFL-CIO), et al., 228 F.R.D. 230 (E.D. PA. 2005) link
In a discussion after the second case was filed, it was suggested that the employer, Cintas, was behind the law suit - or at least very helpful in supplying a lawyer to represent the employees in whose name the case was filed. Once the case issued, the adamantly anti-union National Right to Work folks were out offering to help.
The case presents many interesting legal issues, many of which would benefit from more litigation - or even from an amendment to the statute to deal directly union organizing - as described here.
Federal-Federal Statutory Conflicts Do Not Involve Preemption
A high stakes class action lawsuit is pending that may affect the way unions conduct representation campaigns. The case was filed against several unions who used state Department of Motor Vehicles data to locate employee contact information. Some of the employees sued the unions for violating the federal Driver’s Privacy Protection Act (18 U.S.C.A. §§ 2721-2725). The employees’ employer, Cintas, is financing, the employees’ lawsuit. Pichler v. UNITE, 228 F.R.D. 230 (E.D. Pa 2005); Pichler v. UNITE, 339 F. Supp. 2d 665 (E.D. Pa 2004).
The union defendants argued that the National Labor Relations Act preempted the DPPA and that therefore the lawsuit should be dismissed. The judge correctly denied the motion to dismiss because the preemption doctrine does not apply to a conflict between two federal statutes. When there is a federal-federal conflict, as here, the doctrine of implied repeals applies. Conflicts between statutes may arise inadvertently, as appears to be the case with the NLRA-DPPA conflict. Normally the more recent statute controls when there is a conflict. However, in some cases an implied repeal that was clearly not intended may mean that the older statute prevails. When the DPPA was enacted, no one realized that it might essentially repeal a common organizing practice. The difficult question is whether union’s seeking employee contact information to organize falls under the NLRA. If it does not, then the doctrine of implied repeals would not save it.
It is impossible to say whether the union defendants would have fared better had they analyzed the case under the doctrine of implied repeals rather than preemption, but it is important to recognize which of the two doctrines applies. The Pichler cases are not unusual in raising federal-federal conflicts. A recent case with a federal-federal conflict is Hankins v. Lyght, 438 F.3d 163 (2d Cir. 2006) (clash between Religious Freedom Restoration Act and ADEA). In that case, Congress resolved the conflict by stating that the RFRA superseded other federal statutes, rather than leaving the question to the courts to resolve.
Now, we have the next chapter. In a 2-1 split, the Third Circuit Court of Appeals held that the union violated the law and that, not only can it be liable for the statutory damages (which will come to quite a lot), the district court can impose punitive damages. The case may be found here.
Funny that punitive damages are the devil's spawn when it comes to corporations hurting or killing people, but are completely appropriate when there was no intent to violate rights here.
The case has now been sent back to the district court for further proceedings. But essentially unions need to be aware that this law is out there and those in the areas covered by the Third Circuit cannot use license records unless they want big trouble.
And all unions need to be aware of the law and its application, or potentially face huge legal problems.
