Metropolitan News-Enterprise


Wednesday, January 29, 2003


Page 1


Libel Suit Over Workplace Dispute Not SLAPP, Court Rules


By KENNETH OFGANG, Staff Writer/Appellate Courts


A suit charging a labor union with defaming a custodial supervisor by distributing critical leaflets regarding disputes with his subordinates was not a strategic lawsuit against public participation, the First District Court of Appeal ruled yesterday.

While the First Amendment protects a labor union’s right to speak about a dispute, it does not follow that every statement by a union about such a dispute constitutes a “public issue” for purposes of the anti-SLAPP law, Code of Civil Procedure Sec. 425.16, Justice Paul Haerle wrote for Div. Two.

The court affirmed the denial of an anti-SLAPP motion brought by the American Federation of State, County, and Municipal Employees and a local representing UC Berkeley workers. The defendants sought dismissal of a suit brought by David Rivero, a former supervisor of custodians at the International House on the Berkeley campus.

Rivero held his job for about 18 years. But in November 1999, after being out for several weeks due to a job-related injury, he was suspended pending investigation of alleged wrongdoing.

Plaintiff Suspended

Rivero said in his complaint that the suspension was based on groundless allegations of theft, extortion and favoritism by three of the eight employees he supervised. In March 2000, he alleged, the allegations were rejected but his job was abolished and he was transferred to a new position washing dishes and scrubbing pots in the International House Kitchen.

He refused the reassignment and was terminated, he said.

In his defamation suit naming AFSCME and the local, among other defendants, he cited three leaflets that had been distributed by the union as part of a campaign to stem attrition and demonstrate that it could effectively represent workers.

While Rivero was not mentioned by name, the leaflets referred to the janitors at the International House and claimed that they had “convinced management to suspend [their] supervisor” by proving that he “solicited bribes, hired family members, and practiced favoritism;” that the manager was “unfair, abusive and playing favorites” and that workers had “forced” his superiors to suspend him; and that there had been a “pattern of abuse” by management, including solicitation of bribes by the custodians’ supervisor.

Motion Denied

Alameda Superior Court Judge James Richman denied the union’s special motion to strike under Sec. 425.16. He ruled that the union failed to establish that its statements concerning the problems at International House were made “in connection with a public issue,” an element of the SLAPP defense under Sec. 425.16(b)(1), and that Rivero would probably prevail at trial.

Haerle, writing for the Court of Appeal, said the potential interest in the International House dispute on the part of the 17,000 workers represented by the local or the general public to which the university is accountable did not convert what was essentially a disagreement between eight workers and their supervisor into a public issue.

Surveying prior cases in which courts had struggled to define what constitutes a public issue under the statute, the justice wrote:

“None of these cases defines the precise boundaries of a public issue, but in each of these cases, the subject statements either concerned a person or entity in the public eye—conduct that could directly affect a large number of people beyond the direct participants—or a topic of widespread, public interest—.Here, the Union’s statements concerned the supervision of a staff of eight custodians by Rivero, an individual who had previously received no public attention or media coverage. Moreover, the only individuals directly involved in and affected by the situation were Rivero and the eight custodians. Rivero’s supervision of those eight individuals is hardly a matter of public interest.”

Not every discussion of an employment dispute, even if it concerns allegations of unlawful activity such as bribery, involves a public issue, Haerle said. “We conclude, instead, that unlawful workplace activity below some threshold level of significance is not an issue of public interest, even though it implicates a public policy,” he wrote.

Case Distinguished

He distinguished Monterey Plaza Hotel v. Hotel Employees & Restaurant Employees (1999) 69 Cal.App.4th 1057, which held that a suit against a union, arising from the union’s dispute with a hotel accused of firing employees because they supported the union and with other unfair labor practices, concerned a public issue.

That dispute, Haerle said, was highly publicized and had a significant impact locally, unlike the International House dispute, which the justice described as “an isolated incident” that was not shown to be connected to larger labor issues at the UC.

The union was represented on appeal by Glenn Rothner, Emma Leheny, and Ricardo Ochoa of Pasadena’s Rothner, Segall & Greenstone, along with attorneys from the Oakland firm of Burnham Brown. Rivero’s attorney was William Campisi Jr., a Berkeley sole practitioner.

The case is Rivero v. American Federation of State, County, and Municipal Employees, AFL-CIO, A097032.


Copyright 2003, Metropolitan News Company