• Union's Litigation Tactic Backfires
  • October 31, 2013 | Author: David P. Phippen
  • Law Firm: Constangy, Brooks & Smith, LLP - Fairfax Office
  • The United Food and Commercial Workers Union apparently thought it could organize an Arizona bakery by suing the bakery for violations of the Fair Labor Standards Act and refusing to go away unless it got card-check recognition and a neutrality agreementĀ - even after the bakery paid everything it owed the workers, plus the same amount again as exemplary damages. Although the employee-plaintiff was entitled to attorneys' fees under the Fair Labor Standards Act because he prevailed on his "negligible" wage claim, the court drastically reduced the attorneys' fee request, granting them only $35,000 of the $144,202.09 in fees that they had claimed they were owed. Then, the court reduced even that, in effect, by sanctioning the attorneys in the amount of $33,328, leaving them with a "net" fee recovery of $1,672, plus $3,000 in court costs.

    According the the court's decision, the Union filed the FLSA lawsuit in November 2011, the day after it lost its third election to organize the bakery. The bakery requested mediation the day after it was served with the lawsuit, and although the Union would not agree to mediation, it agreed to have an "informal meeting." The meeting was held in late December 2011, and the "plaintiff's" lawyers came accompanied by a union organizer rather than the plaintiff. The lawyers acknowledged that the plaintiff's wage claim was "negligible" but said they would resolve the case only if the bakery agreed to card-check and a neutrality agreement. In February 2012, the bakery paid all wages due to the workers, as well as exemplary damages, all of which was verified by the UFCW lawyers no later than April 25, 2012. Nonetheless, the litigation continued until late 2012 or early 2013. According to the court, the UFCW "unreasonably and vexatiously protracted this litigation."

    Although the court justifiably slapped down the UFCW, the employer in this case still had to pay double back pay to all affected employees, its own attorneys' fees and costs, plus the paltry amount of UFCW attorneys' fees and $3,000 in court costs. Thus, the case is a useful reminder that all employment and labor relations activities are inter-related: none stand in isolation from the others. A motivated union will try to exploit to its advantage any area of employer weakness that it can. Here, the UFCW chose the FLSA route, but unions have also been known to leverage discrimination, harassment, and retaliation claims, as well as others.