FORMER UNION OFFICIAL’S “GOOSE IS COOKED” IN “TOP CHEF” UNION EXTORTION CASE

            “Top Chef” is one of my favorite shows, and because of my last post on a legal victory against union hardball tactics, this story out of Boston caught my eye. 

            Mark Harrington, a former official of Teamsters Local 25 pled guilty to federal extortion charges in connection with union threats of physical violence and production disruption against the cast and crew of the top-rated culinary reality show because they were using non-union workers. Charges are still pending against four other union members, who have entered pleas of not guilty. Bean Town politics also are entangled in the case. In a separate but related federal  indictment, Boston’s head of tourism is accused of withholding permits for Top Chef to film in the area and calling local restaurants that were scheduled to host the show, and threatening them that they would be picketed by the union if they did not withdraw the invitations.

            After the union officials were initially indicted in 2015, Local 25 argued that they were not engaged in criminal activity, but were instead engaged in the protected concerted activity of picketing, as allowed for under the National Labor Relations Act (“NLRA”).  However federal prosecutors fired back that the union defendants were not entitled to collective bargaining rights because they did not have a collective bargaining agreement with the Top Chef production company, and the positions they were seeking for union members already were filled by non-union employees.  The ugly facts of this case make it clear that what occurred was not protected union activity under the NLRA.  As noted by U.S. Attorney Carmen M. Ortiz at the time of the September 25, 2015 indictments:

In the course of this alleged conspiracy, they managed to chase a legitimate business out of the City of Boston and then harassed the cast and crew when they set up shop in Milton. This kind of conduct reflects poorly on our city and must be addressed for what it is – not union organizing, but criminal extortion.

           
             Here is what happened.  In June 2014, Top Chef came to Boston to film the twelfth season of the show.  This included Top Chef host Padma Lakshmi.  Following the threats against Boston restaurants, they withdrew their offers to host the filming of the show, and Top Chef decided to move their production plans to a well-known restaurant in nearby Milton, Massachusetts. During the production of the show, Local 25 members picketed the restaurant, physically roughed up members of the production crew, and slashed the tires of fourteen production workers. 

            From the picket line outside the Milton restaurant, the members of Local 25 screamed racist, sexist and homophobic threats and slurs for hours as production crew and cast came and went.  Some of the worst conduct was directed toward the show’s host. When Lakshmi arrived at the scene, one of the union members rushed her car and screamed “We’re gonna bash that pretty face in, you f***ing whore!”  In responding to local media reports of the incident at the time, a Local 25 spokeswoman stated, “As far as we’re concerned, nothing happened.”

            The indictment a year later charged the union members with using violent tactics in an attempt to extort jobs from Top Chef under the threat of disrupting or shutting down production.  By agreeing to plead guilty, Harrington, who was the former Secretary-Treasurer of Local 25, received a deal in which he will receive no prison time and will spend no more than two years of probation.  The maximum sentence available was up to 20 years in prison and fines of up to $250,000.  The other union members still await trial.

            According to media reports, this is not atypical behavior for Local 25.  Other union members have previously been convicted of money-laundering, extortion, racketeering and shaking down movie producers who tried to film in Boston.  The union is politically active, and has made campaign donations to Boston Mayor Martin J. Walsh, a former union attorney, every member of the Boston City Council, and Attorney General Maura Healey.

            The good news in this case is that the U.S. Department of Justice took action against obviously criminal and terrorizing action by the union, but the bad news is that the relative “slap on the wrist” no jail-time sentence of Harrington is unlikely to prove much of a deterrent to such abusive union activity in the future. There is no indication as to what, if any, involvement the National Labor Relations Board ("NLRB") had in the case.

            In light of the NLRB’s recently announced joint employer standard for franchise operations, an interesting perspective on the Top Chef incident was offered in an article by the Competitive Enterprise Institute entitled “Why Isn't There a Joint Union Standard?”  According to the author:

The NLRB argued in the majority that companies utilize common business relationships—franchising, contracting and temporary staff—to insulate themselves from labor violations and collective bargaining responsibilities.

Seemingly, if corporations are deemed liable for the wrongdoings of an entity that they voluntarily associate with and may reserve control over, then why are labor unions insulated from liability when union officials commit criminal acts when pursuing union objectives—in this case, obtaining work? Also, why is a national union shielded from liability when local unions commit criminal acts?

A national union, in essence, acts in a similar fashion as a franchisor of labor services. National unions let local unions use its brand, “provide services to their locals, such as legal advice and leadership training” and help negotiate collective bargaining agreements.

           
          As they might say on Top Chef, food for thought.

A MESSAGE TO READERS OF "THE EMPLOYEE WITH THE DRAGON TATTOO" 

 A reader of this blog asked if she could be included on an e-mail list for new posts.  I currently do not have an e-mail service but it seems like an excellent idea and I will be setting it up in the very near future.  If you would like to be included, please send your name, your company, and your e-mail to me at fijmanm@phelps.com

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UNION LEARNS “DON’T MESS WITH TEXAS” (AND RELATED NLRB FUN)

 

           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" 

 A reader of this blog asked if she could be included on an e-mail list for new posts.  I currently do not have an e-mail service but it seems like an excellent idea and I will be setting it up in the very near future.  If you would like to be included, please send your name, your company, and your e-mail to me at fijmanm@phelps.com

Thanks!