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Corporate America and organized labor are embroiled in an increasingly tense war over organizing efforts in light of recent court decisions and regulatory actions that have both sides crying foul. Unions claim that employers are retaliating against their organizing efforts like never before, while employers argue that unions are engaging in nastier-than-ever recruiting tactics. The courts, meanwhile, have recently produced mixed results in one of the most fiercely contested areas of law.In California, the 9th U.S. Circuit Court of Appeals last month delivered a blow to employers when it upheld a California law barring companies that receive state funds from spending those funds to deter union organizing. Chamber of Commerce v. Lockyer, 437 F.3d 890 (9th Cir. 2006). On the flip side, a California jury in July hit one of the nation’s largest labor unions with a $17.3 million verdict for libeling a hospital by mailing consumers postcards that claimed the hospital’s bed linens were unsanitary. Sutter Health v. Unite Here, No. S-CV-17938 (Placer Co., Calif., Super. Ct.). In Pennsylvania, Unite Here is also facing a class action-funded by the employer-on behalf of 1,000 employees who claim that union organizers harassed them at their homes and in their cars. Pichler v. Unite, No. 04-2841 (E.D. Pa.) And more recently, in another blow to organized labor, the National Labor Relations Board (NLRB) on Sept. 29 issued a ruling that takes away the right to form unions from potentially 8 million employees-including nurses, building trades workers, and newspaper and television employees-who are deemed supervisors, and thus not eligible for union membership. “The last two to three years have not been kind to us,” said Craig Becker, associate general counsel to the Service Employees International Union. “It’s hard to find [NLRB] decisions that have been very helpful to labor in these last few years.” Employer resistance has also intensified, Becker added, saying that unionization efforts “have been perverted by the employers’ role in the process….Employers are now allowed to dominate the union organizing effort.” But labor attorneys representing employers say that unions-which are now winning elections at an all-time high rate of 57%-are forcing their clients to be more aggressive with organized labor. They claim that unions are increasingly engaging in unfair and sometimes illegal tactics, such as picketing at the soccer game of an employers’ child or mailing defamatory letters about a company to potential customers. “The unions are engaging in new tactics, some of which, let’s just say, are a little bit more creative and perhaps may cross some legal lines. And as a result, we’re seeing novel legal approaches pursued in the courts,” said Robert F. Millman, a labor attorney in San Francisco-based Littler Mendelson’s Los Angeles office who advises employers on union organizing matters. “Employers-they’re taking very aggressive tactics with respect to fighting these kinds of things….If there’s a knockdown war with a union that they’re involved with, basically, all bets are off.” Millman said a classic example of companies fighting union tactics is the the recent “dirty laundry” case in California, where a jury awarded a hospital chain $17.3 million in July after finding that the Unite Here union libeled the chain by mailing postcards to consumers that claimed the bed linens were unsanitary. The union mailed the letters during a labor dispute with the provider of the hospital’s laundry service, which was not entirely unionized. “What was remarkable about the case is that it isn’t everyday that a multimillion-dollar verdict comes down against a union for conduct of this nature,” Millman said. The union is appealing. “We think that what we did was legal and defensible….We think what we said was true, and we think that what we said was based on a conscientious and reasonable investigation,” said Brent Garren, senior associate general counsel for Unite Here, which represents about a half-million employees in the hospitality, laundry and garment textile industries. Garren said he is incensed by corporate allegations that unions are engaging in nasty and aggressive tactics, claiming it’s the other way around. “There’s an unfettered wave of corporate lawlessness” going on with regard to union organizational efforts, Garren said. “It’s not unions being too aggressive. If anything, the problem is unions are not aggressive enough,” Garren said. “I think that the employers across the country are increasingly and aggressively disregarding the National Labor Relations Act and the rights of employees to organize.” Garren, who is defending Unite Here in another employer-retaliation lawsuit in Pennsylvania, believes that companies are using litigation to “spend the union into the ground.” “That’s what I think these lawsuits are about-to try to make the union spend millions of dollars in legal defense fees until they can’t afford it and they give up on the organizing drive,” Garren said. That’s what Garren believes is going on in the Pennsylvania case, where Cintas Corp.-a uniform manufacturer and first-aid supplier-is funding a class action on behalf of 1,000 workers who claim that Unite Here organizers violated their rights by obtaining information about them through driver’s license records. According to court documents, the union obtained license plate numbers from the parking lot of Cintas, whose employees they were trying to organize. On Aug. 31, a federal judge granted the plaintiffs summary judgment. Unite Here is appealing. “We believe what the union did in the Cintas case is absolutely protected by the Drivers Privacy Protection Act,” Garren said. Attorney Michael Rubin of Altshuler, Berzon, Nussbaum, Rubin & Demain in San Francisco, a labor and employment lawyer for employees and unions, said that unions have much leeway in what they say and do during labor disputes. For example, Rubin said, in the dirty-laundry case, the union’s postcard mailings were protected under free speech rights. “The Supreme Court made clear decades ago that parties in a labor dispute have broad leeway to speak negatively about the other in order to influence workers and inform the public,” Rubin said. “As far as I can tell, the union speech at issue [in the laundry case] was protected by the First Amendment because it arose in the context of a bitterly divisive labor dispute.” Martin F. Payson, a labor attorney with the White Plains, N.Y., office of Jackson Lewis who has conducted several “How to stay Union Free” seminars this year for corporate clients, charges that unions have taken organizing to entirely new levels, where its not just about recruiting employees anymore, Payson said, but about embarrassing and harassing stockholders, board members and company bankers. “The unions are not trying to appeal to the employees. That’s secondary. Today, they’re trying to pressure the employer into reputational warfare,” Payson said. “They’re going after the reputations of these people as not being good corporate citizens.” He said the union’s goal is to force employers to accept the union’s demands or face a costly legal battle and public embarrassment. Adding to employers’ unionization fears, Payson said, is a bill pending in Congress, the Employee Free Choice Act, which limits the rights of employers to interfere in unionization efforts. Payson noted that employers are also on edge about the 2005 fracture of the AFL-CIO, which produced a second powerful union federation that employers fear has triggered even greater recruiting campaign for workers. The splintering of the AFL-CIO in 2005 led to the formation of Change to Win, which represents 6 million workers and comprises seven unions, including the International Brotherhood of Teamsters. The AFL-CIO, meanwhile, comprises 53 unions representing 9 million workers. “We are seeing [companies] become much more aware of the vulnerability [to becoming unionized] and taking some pre-emptive steps to minimize their exposure,” Payson said. “I think employers are becoming much more aggressive in their preemptive communications on why unions are unnecessary.” Payson, meanwhile, is educating companies on how to stay union free at various seminars that have attracted about 500 companies in the last year. The most recent one wrapped up last week in Charlottesville, Va., where Payson gave tips to 70 employers on how to avoid unionization. His advises employers, among other things, to define who their supervisors are, particularly in light of the recent NLRB ruling. Jeffrey L. Braff, partner at Philadelphia’s Cozen O’Connor who counsels about 50 companies in the area of union organizing, said that union avoidance has become a hotter topic in the last year. He said the issue got an uptick with the splintering of the AFL-CIO, which, he added, had nonunionized employers worried about an organized labor revival and unions going after their workers. “It did increase concern among employers,” Braff said, noting that half of his clients are not unionized and are fighting to stay that way. “Those that have unions, from time to time, I’ll get inquiries, ‘What can we do to get rid of them,’ ” Braff said.The recent NLRB ruling involving supervisors and union eligibility also has kept labor attorneys busy. James Redeker, a labor attorney with Wolf, Block, Schorr and Solis-Cohen in Philadelphia, said he’s cautioning clients about how they interpret the ruling. For example, he said, there might be a knee-jerk reaction by employers to start making certain employees supervisors because of the union-ineligibility rule affecting certain employees in supervisory positions. But Redeker cautions against such immediate action, noting that making someone a supervisor creates a liability for the employer because that person is now subject to sexual harassment and other workplace misconduct claims. “If you’re contemplating this, you need to do more than say, ‘Okay, you’re a supervisor.’ They better have training programs and education programs ready to go and make these people really in fact operate in a responsible way,” Redeker said. “The more supervisors you have, the more liable you could be for workplace misconduct.”

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