Pichler v. Unite

• Decision Date: 13 October 2004
• Docket Number: No. Civ.A. 04-2841.,Civ.A. 04-2841.
• Citation: 339 F.Supp.2d 665
• Parties: Elizabeth PICHLER, et al. v. UNITE (Union of Needletrades, Industrial & Textile Employees AFL-CIO), et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

Page 665

339 F.Supp.2d 665

Elizabeth PICHLER, et al. v. UNITE (Union of Needletrades, Industrial & Textile Employees AFL-CIO), et al.

No. Civ.A. 04-2841.

United States District Court, E.D. Pennsylvania.

October 13, 2004.

Beth Lincow Cole, James Bucci, Spector Gadon & Rosen PC, Philadelphia, PA, for Plaintiffs.

Laurence M. Goodman, Mark Featherman, Willig Williams & Davidson, Philadelphia, PA, Susan M. Jennik, Thomas M. Kennedy, Kennedy Schwartz & Cure LP, New York City, Neil I. Ditchek Washington, DC, Thomas Herman Kohn, Markowitz & Richman, Philadelphia, PA, for Defendants.

MEMORANDUM

DALZELL, District Judge.

Plaintiffs, eight employees of Cintas Corporation and five of their relatives, allege that the Union of Needletrades, Industrial & Textile Employees AFL-CIO ("UNITE") attempted to organize Cintas employees during the winter of 2003 and 2004. To reach the employees, UNITE allegedly recorded license plate numbers from vehicles parked outside of Cintas's Allentown facility, used the license plate numbers to retrieve the addresses of the vehicles' owners from Pennsylvania motor vehicle records, and then contacted the owners at their homes. See Am. Compl. ¶ 43. Contending that this alleged conduct violates the Driver's Privacy Protection Act of 1994 ("DPPA" or the "Act"),¹ plaintiffs initiated this action against UNITE, UNITE's president (Bruce Raynor), and the International Brotherhood of Teamsters AFL-CIO ("Teamsters," and collectively with UNITE and Raynor, the "Unions").

The Unions have filed motions to dismiss² making two principal arguments.³ First, they maintain that, even assuming that the alleged activities occurred, the DPPA would not prohibit them. See Teamsters Br. at 3-9. Second, the Unions assert that we should dismiss this case because the National Labor Relations Board ("NLRB") has primary jurisdiction over their dispute with the plaintiffs. See UNITE Br. at 10-20. We consider each argument in turn.

I. DPPA

Unless one of its exceptions applies, the DPPA forbids state officials from "knowingly disclos[ing] or otherwise mak[ing] available to any person or entity personal information about any individual obtained by the department [of motor vehicles] in connection with a motor vehicle record." 18 U.S.C. § 2721(a) (2004). It also prohibits others from "obtain[ing] or disclos[ing] personal information[ ] from a motor vehicle record" and from "mak[ing] false representation[s] to obtain any personal information from an individual's motor vehicle record," unless one of the Act's exceptions applies. 18 U.S.C. § 2722 (2004). Violators are subject to criminal fines and civil liability to private plaintiffs. 18 U.S.C. §§ 2723-24 (2004).

In this case, the complaint plainly alleges that the Unions gained "access" to the plaintiffs' personal information from Pennsylvania motor vehicle records. Am. Compl. ¶ 43. Recognizing that this allegation states a prima facie case under the DPAA, the Unions rely on the Act's authorization of such access "[f]or use in connection with any civil, criminal, administrative, or arbitral proceeding in any Federal, State, or local court or agency or before any self-regulatory body, including the service of process [or] investigation in anticipation of litigation." 18 U.S.C. § 2721(b)(4) (2004) (the "litigation exception"). More specifically, the Unions maintain that the litigation exception applies here because the complaint alleges that they obtained the plaintiffs' personal information as part of a union organizing effort, activity protected under the National Labor Relations Act ("NLRA"). See 29 U.S.C. § 157 (2004).

The litigation exception would permit the Unions to obtain the plaintiffs' personal information for use in an actual, pending National Labor Relations Board ("NLRB" or the "Board") proceeding or for use in an "investigation in anticipation of" such a proceeding. Because the complaint never identifies any proceeding in which the Unions might use this information, the Unions invite us to take judicial notice of the many NLRB proceedings involving their efforts to organize Cintas workers. Even if we took notice that some proceedings were pending before the NLRB, we could not discern for ourselves (without extensive review of the papers filed with the NLRB) either the issues in those proceedings or whether the Unions "use[d]" the plaintiffs' information in them. The parties have not supplied the kind of evidence that would permit this review, and, even if they had, we would not undertake it on a motion to dismiss. In short we cannot grant the motion to dismiss on the grounds of the litigation exception because the complaint does not establish that the exception applies here.

After discovery has afforded the parties an opportunity develop their arguments, the Unions may be able to prove that the litigation exception permitted them to access the plaintiffs' personal information. Because this issue will probably arise again at the summary judgment stage, we briefly digress to explain how we interpret two critical parts of the litigation exception.

First, the exception applies only if a defendant obtains protected information for a permitted "use." As we construe the term, "use" implies a reasonable likelihood that the decision maker would find the information useful in the course of the proceeding. For example, if the Unions claimed before the Board that Cintas somehow rigged a certification election so that the results did not accurately reflect the number of employees who wanted union representation, they would need to identify which employees actually desired such representation. Obtaining personal information about employees to contact them regarding how they voted would be a permissible "use" because it is reasonably likely that the Board would need to know which employees supported unionization. On the other hand, the litigation exception would not apply if the Unions argued before the NLRB that Cintas engaged in an unfair labor practice by hiring security guards to keep them from recording employee license plate numbers because it is not reasonably likely that the Board would require any information about which employees parked in a particular lot to resolve the issue.

The second part of the litigation exception that deserves exposition is the phrase "investigation in anticipation of litigation." We understand the word "litigation" to encompass all manner of proceedings identified in § 2721(b)(4), including Board proceedings. More critically, however, for this portion of the litigation exception to apply, the Unions must prove that (1) they undertook an actual investigation; (2) at the time of the investigation, litigation appeared likely; and (3) the protected information obtained during the investigation would be of "use" in the litigation, as we interpreted that term above. This construction ensures that individuals' statutorily recognized rights to the privacy of their motor vehicle records are not sacrificed whenever a litigant raises the possibility of a tenuous connection between the protected information and issues tangentially related to a conceivable litigation strategy.

II. Primary Jurisdiction

The Unions also argue that we should dismiss this action because the NLRB has "primary jurisdiction ... to balance the[ ] interests" implicated by the Unions' alleged violations of the DPAA. UNITE Br. at 11.

This argument rests on the principles that the Supreme Court articulated in the landmark case San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). There, the Court faced the question of whether a state court could order a union to pay damages to a lumber company when the basis of the union's liability was a state law that prohibited the union's picketing. Recognizing the problems posed by "the potential conflict of two law-enforcing authorities, with the disharmonies inherent in two systems, one federal the other state, of inconsistent standards of substantive law and differing remedial schemes," the Court emphasized that "Congress has entrusted administration of the labor policy for the Nation to a centralized administrative agency [i.e., the NLRB], armed with its own procedures, and equipped with its specialized knowledge and cumulative experience." Id., 359 U.S. at 242, 79 S.Ct. at 778. To avoid conflict between state and federal regulation of labor relations, therefore, the Court held that, "[w]hen it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield." Id., 359 U.S. at 244, 79 S.Ct. at 779. In other words, Garmon requires "the States to yield to the primary jurisdiction of the National Board" when...