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Employer Must Show Actual Knowledge by Union of Unlawful Picketing Conduct—C.A.
By a MetNews Staff Writer
Knowledge on the part of a union of illegal picketing conduct won’t be assumed, the First District Court of Appeal declared Friday in reversing an order to the extent it denied an anti-SLAPP motion, and affirming it to the extent the motion was granted.
The entire complaint should have been stricken by San Francisco Superior Court Judge Ethan P. Schulman, Justice Tracie L. Brown of Div. Four said in the majority opinion, in which Justice Jeremy M. Goldman joined. Presiding Justice Stuart R. Pollak wrote a brief concurring opinion.
Macy’s brought the action for damages and injunctive relief against Stationary Engineers Local 39 based on picketing activities outside its San Francisco store. It proceeded under Labor Code §1138 which provides:
“No officer or member of any association or organization, and no association or organization, participating or interested in a labor dispute, shall be held responsible or liable in any court of this state for the unlawful acts of individual officers, members, or agents, except upon clear proof of actual participation in, or actual authorization of those acts.”
Second Prong
Brown said that while the first prong of the anti-SLAPP statute, Code of Civil Procedure §425.16—protected speech—is satisfied, Macy’s failed to meet the second prong by showing a probability of prevailing on the merits. She wrote:
“The only evidence Macy’s offered to show a definite connection between Local 39 and the unlawful acts was that Local 39 called the strike and that misconduct took place during the picketing over a substantial period of time….Macy’s submitted no evidence that union leaders of any type were present during the alleged actions or knew about them, much less evidence that the leaders actually participated in the unlawful actions.”
The justice continued:
“Based on the evidentiary record Macy’s has provided, there is nothing to suggest that Local 39 itself actually approved of the alleged unlawful actions, as opposed to Local 39’s rank-and-file members undertaking the actions on their own. While an inference that Local 39 actually authorized unlawful acts based on the mere existence of a long strike that involved pervasive use of loud noisemaking devices or repeated blocking of store entrances might satisfy a preponderance of the evidence standard, such an inference does not constitute “clear proof” sufficient to survive the second prong of the anti-SLAPP test.”
Efforts Inadequate
Evidence that Macy’s employers daily requested that the picketers conform their conduct to legal requirements, Brown commented, did not amount to putting the union on notice of the unlawful behavior.
“Macy’s presumably has long known who Local 39’s leaders are and could recognize them on the picket line,” she observed. “A simple declaration attesting to a leaders participation in picketing in front of an entrance or using a loud noisemaking device or, at a minimum, a leaders presence at the picketing during such actions would have satisfied the statute.”
If it needed to gather such information, she said, it could have requested limited discovery, or it simply have communicated directly with union leaders, thus putting the union on notice.
Concurring Opinion
Pollak said in his concurring opinion:
“I concur in the disposition of this appeal, but I do so with considerable misgivings. As a matter of common sense, it is virtually undeniable that, given the nature and duration of the challenged conduct, union leadership must have been aware of that conduct and took no steps to terminate it. Yet, as the majority opinion explains, Macy’s presented absolutely no [evidence that the illegal behavior (as opposed to the lawful picketing) was in fact brought to the attention of the leadership. Moreover, no formal attempt was made to obtain limited discovery to obtain such evidence. And although the unions brief in this court made this argument explicitly, Macy’s reply simply ignores the issue. Therefore, while we can hardly be certain that trial would not disclose evidence that the union knew about and approved the disputed conduct, nothing was presented in opposition to the anti-SLAPP motion to demonstrate Macy’s likelihood of prevailing on that issue at trial. For that reason alone, I concur.”
The case is International Union of Operating Engineers, Local 39 v. Macy’s, Inc., A161959.
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