Union robocalls; U.S. court says “OK”
Christine Davies reviews a recent U.S. decision involving a trade union, layoffs, robocalls and one very angry hospital CEO
An interesting case has come out of the U.S. Court of Appeals for the Sixth Circuit: Ashland Hospital Corporation v. Service Employees International Union District 1199. The plaintiff employer, a hospital, unsuccessfully sought to obtain an injunction against the union as a result of a deluge of angry telephone calls from local residents which overwhelmed its phone lines.
During a labour dispute, the union arranged for local residents to receive an automated “robocall” concerning the treatment of hospital employees and the impact of layoffs on patient care. The pre-recorded message criticized the hospital’s decision to lay off employees while the CEO had awarded himself a very generous bonus. The message invited residents to “press 1” if they would like to express their concerns to the hospital. The message stated:
Imagine you’re at the hospital alone in pain waiting to be seen; waiting and waiting. What could possibly be taking so long? King’s Daughters Medical Center CEO Fred Jackson laid off over 100 hospital employees, paid hospital executives bonuses worth over one million dollars, and took over 1.1 million in salary and other perks for himself. Now Jackson plans to cut health care for hospital employees. That’s just not right. Press “1” now to call CEO Fred Jackson and tell him to stop putting our families’ health care at risk.
Residents who pressed 1 were connected through to the CEO’s direct line. The campaign resulted in 536 angry calls being placed to the CEO within the two day period, apparently overwhelming the hospital’s telephone system. The employer sought to restrain the union’s campaign, bringing claims under the Telephone Consumer Protection Act.
The Court of Appeals agreed with the union that it did not “make” any calls to the hospital, but rather had simply invited residents to make a call. It concluded that, while the union’s calls to residents were the product of an automated process, the residents’ subsequent calls to the CEO were not. The union did not use an automatic dialing system to engage multiple lines at the hospital simultaneously; rather, the calls to the hospital came from individual residents. The Court also noted that, as a tax-exempt labour organization, the union was exempt from certain requirements under the legislation, and while the union had failed to identify itself in the recording, the employer lacked standing to challenge that particular violation of the statute.
A dissenting opinion held that the term “call” in the legislation should be defined more broadly to include calls from an automated computer system, and would have held that while residents may have participated in the calls, the calls really originated from the union’s automated system.
Changing technology makes it easier for unions to reach out to their members as well as other stakeholders, such as clients/customers and community residents. It will be interesting to see whether other unions will adopt this type of approach in labour disputes, and how such actions will be treated by Canadian courts and tribunals under our telecommunications laws (including anti-spam and “do-not-call” laws), especially considering the constitutional interests engaged by union activities.
You can read the decision here.