Metropolitan News-Enterprise


Friday, January 17, 2003


Page 1


Court Rejects Claim That Garment Workers Union Failed to Represent Employees Who Lost Jobs


By KENNETH OFGANG, Staff Writer/Appellate Courts


A garment and textile workers’ union cannot be held liable to 25 employees who claim the union cost them their livelihoods by driving their employer out of business, the Ninth U.S. Circuit Court of Appeals panel ruled yesterday.

The Union of Needletrades, Industrial and Textile Employees, or UNITE, did not violate its duty to fairly represent the employees of Sorrento Coats, a San Bernardino outerware manufacturer that went bankrupt four years ago after it lost its sole “jobber,” Senior Judge Dorothy W. Nelson concluded.

  The jobber, M. Shapiro & Co., was pressured into ending its relationship with Sorrento by UNITE, the plaintiffs alleged, in retaliation for a 1997 effort by the Sorrento employees to decertify the union. In the garment industry, jobbers sell clothing to retailers and order it from the contractors and subcontractors who actually manufacture it.

UNITE denied that M. Shapiro, which also had a contract with UNITE, was compelled to stop doing business with Sorrento. But it was undisputed that the union asked the jobber to pull the work in response to what the union alleged were unfair labor practices by Sorrento, which UNITE claimed was behind the decertification effort.

The 25 disaffected workers sued in January 1998, alleging that the use of secondary pressure against M. Shapiro violated the duty of fair representation imposed by federal labor law.

Shortly after suit was filed, Sorrento agreed to certain concessions in exchange for the dismissal of unfair labor practice charges that the union filed with the National Labor Relations Board. Among other things, the company agreed that it would continue to recognize the union, implement a previously agreed upon collective bargaining agreement, and refrain from supporting the decertification effort.

  During renewed discussions following the settlement, UNITE said it would not ask M. Shapiro to continue doing business with Sorrento unless the employees dismissed their lawsuit. Instead of dismissing, however, the employees amended their complaint to allege that the dismissal demand was a further violation of the duty of fair representation.

U.S. District Judge Christina Snyder of the Central District of California ruled that all of the union’s conduct was protected by the First Amendment or by federal labor law, and granted UNITE’s motion for summary judgment.

In concluding that the district judge was correct, Nelson said that, while federal law does not immunize the union against all liability for using secondary pressure, UNITE was not acting in a representative capacity when it urged M. Shapiro not to do business with Sorrento. Thus, the appellate jurist explained, the duty of fair representation did not apply.

Nelson elaborated:

 “The union could have exerted the same pressure on Shapiro to pull its work even if the workers had been successful in their attempts to decertify the union, or if the union had never represented the workers. It was not acting pursuant to any authority granted by statute as the exclusive representative of the Sorrento workers; nor was it acting pursuant to authority granted by the Sorrento CBA.”  

Nelson cited a Third Circuit case holding that a union did not act in a representative capacity when it rejected the funding for a new position that would have gone to one of its members, who had left his previous union job.

With respect to the union’s insistence that the employees dismiss their lawsuit, Nelson acknowledged, the duty of fair representation applied because the demand was part of contract negotiations. But there was no breach of the duty, the judge said, because the union was being arbitrary or discriminatory or acting in bad faith.

The union, Nelson reasoned, was entitled to promote the interests of those members of the bargaining unit who had not sued it over those of the plaintiffs. To support a claim of bad faith, the burden was on the plaintiffs to show that the suit was not employer-sponsored and they presented no evidence at all on that point, she said.

Judge Thomas G. Nelson and Senior U.S. District Judge William Schwarzer of the Northern District of California, sitting by designation, concurred.

The case was argued by Pasadena attorney Linda S. Klibanow for the plaintiffs and by Michael Rubin of San Francisco’s Altshuler, Berzon, Nussbaum, Rubin & Demain for UNITE.

The case is Simo v. Union of Needletrades, Industrial & Textile Employees, 01-55937.


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