BulletProofBlog the blog on crisis communications

In this regular feature, Bulletproof interviews top plaintiffs’ counsel for their perspective on the crises likely to affect businesses in the near future. Today, we speak to Geoffrey Damon of Butkovich & Crosthwaite Co. LPA in Cincinnati, who is seeking to file a class action against Ford Motor Co. and the United Auto Workers on behalf of 80 union workers. The workers lost their seniority rights after they were recalled to work at a Ford transmission plant in Batavia, Ohio in 2007. The plaintiffs had taken $100,000 buyouts but were recalled a few months later when Ford reversed its decision to close the plant.

The two plaintiffs filing this case, Spicer at al. v. Ford Motor Co. et al., claim the defendants violated the Labor Management Relations Act by denying them full-time status, including seniority rights, after their return. Meanwhile, other Ford union employees in Flat Rock, Mich. had also been recalled to work but were able to obtain full-time status after going through a grievance process. In the Batavia case, the UAW rescinded a grievance filed by the plaintiffs’ local union, allegedly saying it had no merit.

The current plaintiffs are seeking at least $100,000 in back pay, front pay, liquidated damages, and loss of benefits. They're also seeking punitive damages and attorney fees and costs.

In what way do you allege Ford’s actions violated the Labor Management Relations Act?

Geoffrey Damon: Simply enough, failure by an employer to abide by the provisions of a collective bargaining agreement violates the Labor Management Relations Act. In this case, that agreement stipulates that seniority and full-time status be accorded employees who work ninety consecutive days, which my clients did. That time stipulation is irrespective of how long they worked before they accepted the original buyouts. It’s a matter of how long they were kept on the job them after they returned to work.

Throughout the period, Ford repeatedly endeavored to get the recalled employees to sign waivers of their seniority rights. Some did. My clients did not.

Does the inclusion of the union as a named defendant add an important wrinkle to the case?

Geoffrey Damon: There’s actually a type of lawsuit in which management and unions find themselves together on the defense side of labor complaints. Sometimes, as in this case, the reasons why they are co-defendants can be important in terms of understanding the dynamics at play. My clients are younger people, and I believe there was some resentment of them among the older union rank and file for accepting the buy-outs in the first place.

How might the situation at Flat Rock affect this case?

Geoffrey Damon: It could be critical.   I suspect that a simple comparison will underscore that there was no good excuse for the grievance process not to go forward in Batavia. We’ll want to know if there was something unique about the circumstances in Flat Rock but I am not aware of any distinguishing feature.

What do you imagine will be Ford’s defense here?

Geoffrey Damon: Based on my prior experience, employers can always find ways to wrangle over the terms of a collective bargaining agreement. They are characteristically vague and convoluted, so much so that exact opposite conclusions can be are argued from the same contractual language.

If you were advising Ford, what takeaways from this case would you underscore, irrespective of whether or not you finally prevail?

Geoffrey Damon: Certainly, I’d stress that the entire employee recall process has to be handled with greater clarity and with coherent guidelines in place. I don’t think Ford thought through this situation much at all before it began to unravel on them.

Just as important, there must be uniform procedures in place for presenting and soliciting waivers.

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Larry Smith is Senior Vice President of Levick Strategic Communications, the nation's top crisis communications firm, and a contributing author to Bulletproof Blog. Connect with Levick on Twitter: @Levick.