Lawsuit over a Walmart prompts 'shills' accusation

This dilapidated strip shopping center in Hamilton Township is the proposed site for the Walmart.
This dilapidated strip shopping center in Hamilton Township is the proposed site for the Walmart. (JANE M. VON BERGEN / Staff)
Posted: July 30, 2013

Paul Cortesini, David Geary, Rudy Margiotti, and Thomas Zola have a lot in common.

All four live in Hamilton Township, near Trenton. All belong to Local 1360 of the United Food and Commercial Workers, a union representing supermarket workers.

And, most important, they all filed a joint lawsuit against a developer and Hamilton's planning board, saying the board improperly approved the developer's plans to install a Walmart in what is now a dilapidated strip shopping center in their township.

But are they all also shills?

That's the word - among others - the developer's lawyer used to describe the men. "They are stooges for the union," said Mark Kaplin, of Blue Bell. The UFCW has long battled Walmart.

Putting aside whether Kaplin's assertion is true, is it even an issue in today's style of public discourse, where skirmishes are just as likely to be fought in courts as in Congress, or, for that matter, across the bargaining table?

"This is the American way. We use litigation as a political tactic," said Philip Harvey, a professor of law and economics at Rutgers University-Camden.

"We probably recognize and approve of this more than any other society in the world," he said.

There are larger issues, but the immediate one is the fate of the 24.1-acre tract in Hamilton.

That led to two lawsuits. The first was filed June 28 in Mercer County Superior Court by the four men.

The second, the one with the word shill in it, was filed Tuesday in federal court in Camden by Kaplin, representing Peter Abrams, a Montgomery County businessman who heads ARD Hamilton L.L.C., the site developer and landowner.

The federal suit, against UFCW Local 1360, contends that the union put its four members, the "shills," up to filing the Mercer County suit, improperly delaying development, with the potential for a $1.5 million loss.

Walmart, which is primarily nonunion, isn't named as a party in either suit, but its influence looms in both.

"It's a shame that attorneys for special interests are using the legal process to block or delay projects that will brings jobs and new affordable shopping alternatives to the residents of New Jersey," Walmart spokesman William Wertz said.

He declined to say whether the "special interests" include the UFCW.

For years, the union has been battling Walmart across the nation, most recently backing a group of warehouse workers in California, employed by a subcontractor, that went on strike last week.

In Philadelphia, the efforts are organized by UFCW Local 1776, based in Blue Bell. In South Jersey, Local 1360, headquartered in Berlin, has opposed Walmart in Lumberton, Berlin, Cinnaminson, and Woolwich.

By paying its workers less, the UFCW has argued, Walmart makes it more difficult for supermarkets paying higher union wages to compete.

"We want Walmart to be a better employer and a better neighbor," said UFCW spokeswoman Jamie Way, speaking from union headquarters in Washington.

How the four union members feel about being called shills is not known. They did not return phone calls or could not be reached for comment.

Local 1360 president Sam Ferraino Jr. did not respond to more than 10 phone calls to his home and office.

Also unavailable for more than a brief comment was Jeffrey Baron, the Voorhees real estate lawyer who represented the four men in their lawsuit in Mercer County.

"I don't represent the union," he said Wednesday.

It's not unusual for advocacy groups to recruit plaintiffs and fund litigation that champions their causes in the courts, said Harvey, at Rutgers.

"The civil rights movement, abortion, antiabortion - everybody brings lawsuits as a way of applying political pressure," he said.

But there is a wrinkle in the National Labor Relations Act that changes the equations for unions.

Unions can spar with the employers whose workers they are representing or trying to represent, but there are limits to threatening or coercing outside parties built into the labor relations act.

By contrast, Harvey said, if the NAACP or the Sierra Club had backed four members, all Hamilton Township residents, in a similar suit, they could file the same lawsuit without recourse, assuming the suit had merit.

In the Hamilton case, the developer would be the outside party. None of the four men lives within a mile of the site.

"The union has the right to exercise their First Amendment right and object to any company whose activities they don't like within the bounds of the labor laws," said Kaplin, a former Walmart attorney who believes he is the first lawyer to pursue this legal theory against unions that fund their members' litigation against developers.

"They could go before a zoning board if Walmart were the applicant and object to the plan," he said, "but Walmart is not the applicant here."

For Kaplin to win his federal case, Harvey said, he'd have to prove that Cortesini, Geary, Margiotti, and Zola were agents for the union.

Kaplin might be helped by what happened in Cinnaminson. Attorney Baron represented union members who lived there in a state lawsuit against a developer. Superior Court Judge Ronald E. Bookbinder kicked him off the case, saying he violated an evidence order, a side issue.

But Bookbinder's opinion included findings that the members knew little about development issues and believed Local 1360 was paying Baron's fee.

Harvey said that Kaplin would also have to prove that the lawsuit was coercive. But that, he said, would be tough.

"Lawsuits are incredibly coercive," he said, "but they are protected coercion."


Contact Jane Von Bergen at jvonbergen@phillynews.com, @JaneVonBergen on Twitter, or at 215-854-2769. Read her workplace blog at www.philly.com/jobbing.

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