A Texas janitorial service
cleaned up last week when a Texas jury awarded it $5.3 million in damages in
the company’s defamation/disparagement/harassment lawsuit against the Service
Employees International Union (“SEIU”). The
victory in this groundbreaking case may encourage more employers to go on the
offensive and sue over hardball tactics used by unions in union campaigns and
contract disputes.
The facts of the case, which go back more than a decade,
read like a John Grisham novel. In 2005,
SEIU sought to unionize janitorial workers in Houston with a “Justice for
Janitors” campaign. All but one of the janitorial
companies agreed to accept SEIU as the bargaining representative for their
employees. However, Professional
Janitorial Services (“PJS”) declined to do so, insisting, as allowed under the
National Labor Relations Act (“NLRA”), that representation be decided by a
secret ballot vote of their employees.
According to the testimony and evidence presented during
the four weeks of trial, this kicked off years of dirty tactics by the
SEIU. This included efforts to destroy
PJS with an organized campaign of misinformation, specifically designed to
cause PJS to lose money and customers.
The evidence, including internal SEIU e-mails, showed that the union
intentionally and knowingly made false allegations that PJS was illegally
withholding employee’s pay, forcing them to work off the clock, or firing them
for engaging in union activity. The
union filed “unfair labor practice” complaints against PJS with the National Labor
Relations Board (“NLRB”) and then would withdraw them, causing the company to needlessly
incur legal costs. The evidence also
showed that SEIU would send letters to PJS’s customers, making false
accusations, and would stage disruptive demonstrations designed to intimidate
customers into dropping PJS. Every time
PJS lost a client, someone from the union would send an e-mail claiming credit.
In an interview with the Houston Chronicle, PJS’s chief
executive Brent Southwell stated "The
jury found what PJS and its employees have known for more than a decade . . The
SEIU is a corrupt organization that is rotten to its core." Obviously worried
about the precedent set by PJS’s legal victory, SEIU has announced its plans to
appeal the jury verdict.
In other NLRB news, it appears unions also are learning that the Board’s
position on social media applies to them as well. In recent years, the NLRB has taken the
position that employees’ social media postings qualify as protected concerted
activity under Section 7 of the NLRA.
Since then, the NLRB has brought action against numerous companies for
terminating employees who post disparaging comments about their employer, or in
some cases, simply for having overbroad social media policies that might “chill”
an employee’s right to engage in concerted activity.
Despite a very
pro-union NLRB, the Board has now ruled against a local union in New York State
for retaliating against a member because of his Facebook postings critical of
the union and raising accusations of union corruption, including improperly
giving a union journeyman’s
book to a local candidate for mayor.
According to the Administrative Law Judge Opinion, the union then
retaliated against Frank Mantell by finding him guilty of disrupting the operation
of the union, fining him $5,000, and suspending his membership for two years.
Mantell filed an
unfair labor practice complaint against the union with the NLRB. The ALJ in the case ruled against the union,
and found that Mantell’s Facebook postings were protected concerted activity:
One could argue
that Mantell did not engage in protected activity because the issuance of a
journeyman’s book to Mr. Choolokian did not affect him, or even if it did, his
Facebook posts only complained about the effect on apprentices.
Nevertheless, I find that Mantell’s Facebook
posts were protected. First of all, issuing a journeyman’s book to someone
allegedly ineligible to receive one, affected Mantell in that one more
journeyman would arguably impact his opportunities for employment. Moreover, as
Judge Learned Hand pointed out, employees making common cause with fellow
employees are engaged in protected activity. Even though the immediate quarrel
may not concern them they may be assured that if their “turn ever comes,” they
will have the support of those they are then helping.
I also reject Respondent Union’s assertion
that Mantell forfeited the protection of the Act by maliciously defaming the
Union and Business Manager Palladino. Nothing Mantell said in his Facebook
posts was maliciously and knowingly untrue. The Union takes issue with the fact
that Mantell characterized the Union’s action as giving Choolokian “a gift.” I
find that has not been proven to be false despite the fact that Choolokian may
have paid for the journeyman’s book. Mantell’s use of the term “gift” can
reasonably be interpreted as arguing that Choolokian was not entitled to a journeyman’s
book—an assertion that may or may not be true. (citations omitted)
The ruling may provide some small comfort (or amusement
or schadenfreude) to the many companies trying to draft social media policies that
will pass NLRB muster. It seems the NLRB
is inclined to take just as expansive an interpretation of Section 7 against
the unions as it does against private business.
A MESSAGE TO READERS OF "THE EMPLOYEE WITH THE DRAGON TATTOO"
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