Metropolitan News-Enterprise


Monday, February 6, 2023


Page 1


Ninth Circuit Restores Costumer’s Suit Against Her Union

Opinion Says Triable Issue Exists As to Whether It Breached Its Duty of Fair Representation in Allowing Jobs to Go to Persons Who Were Not Union Members, to Disadvantage of Plaintiff


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals has, for the second time, reinstated a Hollywood costumer’s lawsuit against the labor union she belongs to, holding that summary judgment was improperly granted because there are triable issues as to whether the union failed to provide fair representation.

Plaintiff Melissa Antablin has been at war with Motion Picture Costumers, Local #705 since Feb. 6, 2016, when a dispute with leaders erupted in in a physical altercation. Antablin contends she has been blacklisted by producers and insists that the union has put out the word on her.

Antablin says in her third amended complaint that Local 705’s basic agreement with producers “required producers to hire and to rehire available costumers on the Roster—that is, union members—“before hiring a non-rostered costumer for any position covered by the Local 705 Basic Agreement.” Yet, the pleading alleges, “Local 705 gave employers and producers waivers of the obligation to give employment preference to costumers on the Roster and allowed lining of non-Roster persons, or persons in lower Roster classifications, to be hired in preference to Antablin.”

Summary Judgment

Summary judgment was granted on Nov. 15, 2021, by District Court Judge Mark C. Scarsi of the Central District of California. He quoted a National Labor Relations Board decision as saying, “No duty of fair representation a union operation of a nonexclusive hiring hall because the union lacks the power to put jobs out of reach of workers.”

Scarsi said that Antablin has conceded that the union “does not maintain a hiring preference roster or require rostered costumers to be union members” and the agreement between the union and producers, he noted, merely requires “producers to give Defendant notice whenever they hire costumers” and requires “producers to give hiring preference to rostered costumers.”

He declared:

“There is no triable issue as to whether Defendant is an exclusive hiring hall to which the duty of fair representation attaches.”

Triable Issue Exists

Thursday’s memorandum opinion says there is a triable issue. The opinion is signed by Circuit Judges William A. Fletcher and Kim Wardlaw, along with Matthew F. Kennelly, a District Court judge for the Northern District of Illinois, sitting by designation.

The opinion cites the U.S. Supreme Court’s 1989 decision in Breininger v. Sheet Metal Workers International Association Local Union No. 6. 493 for the proposition “that a union’s operation of an exclusive hiring hall gives rise to a duty of fan representation (DFR) on the pait of the union to its members.” It says:

“There is evidence that would permit a reasonable fact finder to determine that the system established by the collective bargaining agreement (CBA) with Local 705 and maintained by the union—called the Industry Experience Roster (IER)—was sufficiently exclusive to trigger the union’s DFR vis-a-vis its members.”

It points out that the agreement says that “preference of employment in hiring and rehiring shall be given” shall be given by producers to persons on the roster which, the opinion says, “may be read to allow the producer to go outside the IER only if there it includes insufficient qualified workers to meet the producer’s requirements.” It notes that a grievance procedure is spelled out where a producer hires a non-union costumer.

“Though the IER appears to have included both union and non-union costumers. a reasonable fact finder, when reviewing the evidence just discussed, could nonetheless infer that the arrangement in the CBA was effectively an exclusive lining hall,” the opinion declares.

Retaliation Claim

Antablin also put forth a claim for retaliation. She alleged she lost work based on the union’s actions.

As examples, She asserts that she was scheduled to work for six days on “A Wrinkle in Time” but her services were terminated after four days; she was hired to work on the television show “American Crime Story: Versace” but was told, after a matter of days, that her services weren’t needed.

The pleading says:

“At the productions Jane The Virgin, American Crime Story: Versace, Fresh Off The Boat, On My Block, Ghosted, S.W.A.T, One Day She’ll Darken, A Christmas Story Live, 911, Ratched, The Politician, Hollywood, and The Prom, (i) Local 705 told the persons in charge of hiring that they should not use Antablin or (ii) because of the false information and allegations against her, persons in charge of hiring were influenced not to hire [Antablin. or (iii) because of the false information and allegations against her or Antablin’s filing of charges against Local 705’s officers, members of Local 705 said that the company should not use Antablin or indicated that they did not want to work with Antablin.”

The Ninth Circuit panel agreed with Scarsi that the claim is time-barred.

The case is Antablin v. Motion Picture Costumers Local 705, 21-56349.

On July 13, 2020, the Ninth Circuit, in a memorandum opinion, reversed District Court Judge R. Gary Klausner’s dismissal of Antablin’s action without leave to amend. That panel was comprised of Circuit Judges N. Randy Smith (now a senior judge) and Johnnie B. Rawlinson, joined by Edward R. Korman, a District Court judge for the Eastern District of New York, sitting by designation,

The opinion says:

“We agree with the district court that Plaintiff did not adequately state sufficient facts in her complaint to support her claim of retaliation, such as how Local 705 became aware of her unemployment opportunities and how Local 705 communicated with employers to interfere with those opportunities….However, accepting Plaintiffs allegations as true and construing all reasonable inferences in Plaintiffs favor, she may be able to supply additional allegations to support a plausible claim….Further, because the district court was not afforded particularly broad discretion to deny leave to amend in this case…, we hold that the district court abused its discretion by not giving the Plaintiff a single opportunity to amend her complaint.”


Copyright 2023, Metropolitan News Company