Philadephia Inquirer (Pennsylvania), October 29, 2006, Sunday

Copyright 2006 Philadelphia Inquirer
Philadelphia Inquirer (Pennsylvania)

Distributed by McClatchy-Tribune Business News

October 29, 2006 Sunday

SECTION: BUSINESS AND FINANCIAL NEWS


HEADLINE: Seeking to unseal a union's records: Antiunion privacy suit fuels a debate

BYLINE: Jane M. Von Bergen, The Philadelphia Inquirer

BODY:
Oct. 29--Elizabeth "Penny" Pichler could never be counted as a fan of unions.
But what really bothered the 65-year-old receptionist at Cintas Corp.'s Emmaus plant was a knock on the door of her Bethlehem, Pa., townhouse in February 2004.
The union organizer from Unite-Here, a national labor union, was polite, but unwelcome. He wanted her to help unionize Cintas, the nation's largest laundry company.
"How the heck did someone know I worked at Cintas and get my address and show up at my front door?" Pichler said in an interview Friday. "I thought it was very unnerving."
Now, it's Unite-Here's turn to be unnerved.
Pichler's complaint turned into a class-action invasion-of-privacy lawsuit filed against the union in federal court in Philadelphia. On Thursday, attorneys representing Pichler and other employees filed motions to unseal closed documents in the case.
The union objects, arguing that the implications reach beyond this case.
"This would represent a vehicle to force disclosure of information about union-organizing campaigns in the midst of the campaigns," said Thomas Kennedy, of Kennedy, Jennick & Murray, the Manhattan law firm representing the union.
How important that information would be is a matter of debate. Some say it is tantamount to forcing a company to reveal trade secrets. Others say union strategies are already well-known.
But the case comes at a time when unions are increasingly turning to the court of public opinion to win support for union organizing, particularly in high-stakes campaigns like the nearly four-year-old drive to unionize Cintas.
The information could embarrass the union, just like the playbook of any campaign could embarrass a politician, said Peter Cappelli, a professor of management at the University of Pennsylvania.
A wrinkle in this case is that the plaintiffs are Cintas employees, mostly antiunion. Their attorney was hired by Cintas, which is paying the legal bills.
Kennedy said that if depositions and documents were made public, Cintas could learn which of Cintas' locations the union considered easy to organize, or the names of inside union sympathizers.
"That would be devastating to those workers," he said. "Employers can always drum up some reason to sue a union,... you can sue a ham sandwich. But with this, they could wander through a union's records."
Nonsense, said Paul Rosen, a partner in the Philadelphia law firm of Spector Gadon & Rosen, which is representing the Cintas employees.
Rosen argues that the information is old and currently irrelevant, that it's in the public interest to have an open courtroom, and that insight into how unions run their organizing campaigns would be useful for scholars and historians.
And, he said, he would agree that current strategic information, such as the name of a current Cintas employee working on the union's behalf, should remain confidential.
"There's a lot that could be embarrassing to a union from a public relations point of view," said David Picker, an associate in Rosen's law firm. "But embarrassing from a union's public relations point of view is not a reason for closing the records."
Whether or not the information would be strategically useful to Cintas, it could provide a look at union-organizing techniques much as a messy lawsuit over legal fees in 2004 gave insight into union-avoidance techniques used at a factory in South Carolina.
In the Cintas case, some of the depositions that are public reveal how the union would plant workers inside, have them start trouble, and then file unfair-labor-practices charges.
"A lot of this information isn't going to be blockbuster," said Rick Berman, executive director of Union Facts, an antiunion watchdog group in Washington. But, he said, it will show a pattern of dishonest behavior.
Kathleen Pereles, a management professor at Rowan University, disagrees. "If an employer wanted this information about another employer, we might call it industrial sabotage," said Pereles, a former faculty-union staff member.
The facts in the Cintas case hinge on the 1994 Driver's Privacy Protection Act, enacted after an actress and an abortion doctor were killed when stalkers traced them through motor vehicle records.
After the union organizer knocked on Pichler's door in February 2004, she complained at work, as did others, assuming the company gave out her personal information. It turned out the union had traced her through her license plate.
In June 2005, the workers sued for an invasion of privacy under the act. The act does allow some uses for the information, including "investigation in anticipation of litigation."
That's the argument that Unite-Here used to justify its use of the information. At the time, Unite-Here was researching wage-and-hour and discrimination violations in preparation for lawsuits it later filed against Cintas, Kennedy said.
U.S. District Judge Stewart Dalzell didn't buy the argument.
In an Aug. 30 ruling, which was buttressed by an Oct. 17 ruling, he found that the union violated the law, but he did not assess punitive damages. Statutory damages could range from a total of $2.5 million to $5 million for an estimated 1,000 to 2,100 Cintas workers in the class.
"It's Cintas trying to scare us off," said Unite-Here spokeswoman Amanda Cooper. She said the union would appeal Dalzell's ruling and persist in its drive to organize workers.
To Cornell University professor Kate Bronfenbenner, director of labor education research, the case represents another obstacle to union organizing.
The use of motor vehicle records has been a standard tool, she said, important now that many workers no longer live near their factories, as they once did. "Companies are trying to take legal tactics and make them illegal."
Receptionist Pichler, who turns 65 today, said she believed information about the union's tactics should be made public. "Unions might think twice before they do it," she said.
Contact staff writer Jane M. Von Bergen at 215-854-2769 or jvonbergen@phillynews.com.
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