Building Trades News

A proposed class action lawsuit was filed Feb. 14 in U.S. District Court which alleges that a major oil refinery construction and maintenance firm, Brinderson Constructors Inc.’s (BCI), entered into a contract with a bogus labor organization to avoid continued liability in a separate, ongoing lawsuit over unpaid overtime and other wage violations. The suit claims that workers were forced to join the “union” against their will under threat of losing their jobs. BCI is a major national construction firm that performs construction and maintenance work in power plants, oil refineries and other industrial settings.

The complaint also claimed that Brinderson’s arrangement with the Industrial Professional and Technical Workers (IPTW) “union” not only violated federal labor statutes, including the Taft-Hartley Act, but that it also constituted a criminal enterprise under the Racketeer Influenced and Corrupt Organizations (RICO) Act.

The nine named plaintiffs asked the court: to certify the complaint as a class action; award all unpaid overtime and penalties due to class members, but not paid by BCI “as a result of IPTW’s interference;” and treble damages under the RICO statute.

The complaint defined the class as consisting of all on-site construction workers at oil refineries and power plants employed by BCI in California from 2005 to the present who were forced to join IPTW. “We have collected over 200 declarations from workers at BCI who say they were forced to join the IPTW against their will,” states Ellyn Moscowitz, attorney for the workers in the BCI case.
According to the complaint, BCI signed the contract with IPTW to reduce its liability after a California Feb. 2007 appellate court ruling in Small v. Brinderson that was favorable to the workers who sued the company for failure to pay overtime and travel expenses, and to provide the required number of meal periods.

California Labor Code Section 514 allows an exemption from daily overtime provisions if the employer has signed an agreement with a labor organization. By signing an agreement with the IPTW, BCI would limit further liability. The complaint states that in June 2007, BCI workers were called to meetings at which “they were told by management personnel that they must join the union to keep their jobs. They were told the company would go out of business because of the (previous) lawsuit if they did not join.”

The suit also says that on Dec. 13, 2007, IPTW sent a letter to all of its members “encouraging them to opt-out” of the overtime lawsuit. In addition, the complaint says that “IPTW has refused to represent plantiffs and others in grievances they had with BCI” and that workers who sought help in grievances were told by IPTW that they were “not that kind of union.”

The complaint also alleges that IPTW accepted payments from BCI, in violation of 29 U.S.C. section 182(2), which prohibits any labor organization from accepting money from an employer with which it has a collective bargaining relationship; that IPTW has held no election of union officers since the year 2000, in violation of 29 U.S.C. section 481 (b); has not filed any LM-2s, also required by 29 U.S.C. sections 431 (b) and 432; and is not on file with the Department of Labor.

Moscowitz, who also represents plaintiffs in the overtime case, said that BCI sent letters to class members in the earlier case stating that while the company does not agree with the plaintiffs’ argument in that case, it nevertheless is willing to pay the disputed overtime in return for waivers stipulating that is all they are owed by BCI.

In the letter, BCI said nothing about unpaid travel expenses, meal periods, or “waiting time”—penalties for having not paid workers within the period required by law. In fact, much of the $8,500 the average worker is owed in that case stems from “waiting time” penalties, Moscowitz added.

Workers opting for BCI’s offer will receive far less than what the lawsuit claims class members are due, she said, and IPTW has not given workers any information on what they might be entitled to in the overtime lawsuit.

“The IPTW instead aligned its interests with that of the employer to the detriment of its members...” the complaint charged, adding that IPTW President Donna Walsh admitted she sent the December 2007 letter to members “even though she had no idea what the (overtime) lawsuit was about, but simply did as the employer told her to do, with no independent investigation on her own.”

“As a result of IPTW’s actions, IPTW has caused harm to the Orange County Lawsuit and misled and deceived its members at to what they entitled to by law and has acted against its member best monetary interest and is hostile to its members best interests,” stated the complaint. Nonetheless, “we have collected over 400 declarations in support of class certification from Brinderson workers, who have expressed nothing but gratitude for the lawsuit on their behalf” stated Moscowitz “which is why we all work so hard in the labor movement of behalf of workers. It is extremely gratifying to have their support.”