Internat. Union of Operating Engineers, Local 39 v. Macy's, Inc. ( 2022 )

Filed 9/30/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
INTERNATIONAL UNION OF
OPERATING ENGINEERS,
LOCAL 39, A161959, A163029
Defendant and Appellant,
(San Francisco City &
v. County Super. Ct. No.
MACY’S, INC., CGC-20-587033)
Plaintiff and Respondent.
Plaintiff Macy’s, Inc. (Macy’s) sued Defendant Stationary
Engineers Local 39 (Local 39) for damages and injunctive relief
based on allegations that Local 39 had engaged in unlawful
conduct in connection with its picketing activities outside Macy’s
San Francisco store. Local 39 filed a special motion to strike
Macy’s complaint pursuant to Code of Civil Procedure section
425.16 (anti-SLAPP statute), which the trial court denied in part.
After Macy’s filed an amended complaint, Local 39 filed a second
anti-SLAPP motion, which the trial court denied.
Local 39 appealed both orders, and we consolidated the two
appeals for all purposes. Local 39 argues that the trial court
should have granted its anti-SLAPP motions in full because
Macy’s complaints were based on protected conduct and Macy’s
failed to demonstrate a probability of prevailing on its claims.
1
We need not address the merits of Local 39’s appeal of the
denial of its second anti-SLAPP motion because we agree with it
in the first appeal that the trial court should have granted its
first anti-SLAPP motion in full and ordered the entire complaint
stricken.
BACKGROUND
Macy’s runs a department store in San Francisco. Local 39
represents a group of employees who work at the store fixing
mechanical issues. After its last collective bargaining agreement
with Macy’s expired and the parties were unable to agree on a
new agreement, Local 39 called a strike and began picketing at
the store in September 2020.
In October 2020, Macy’s filed a five-page complaint against
Local 39. It alleged that Local 39 had engaged in a continuing
and escalating pattern of unlawful misconduct at the store that
included (1) mass picketing at the store’s five entrances; (2)
blocking ingress and egress at two entrances; (3) disturbing the
public through loud and boisterous conduct; (4) creating an
unsafe and threatening environment in the community; and (5)
damaging property by clogging a drainpipe. Macy’s alleged that
Local 39 had authorized, directed, and ratified the misconduct to
force Macy’s to accede to its demands in the labor dispute.
Macy’s asked for a temporary restraining order and preliminary
and permanent injunctions preventing Local 39 from picketing at
any of the store’s entrances, blocking ingress or egress, disturbing
the public, threatening public safety, or damaging property.
Macy’s also asked for compensatory and punitive damages.
2
On November 20, 2020, Macy’s moved for leave to amend
its complaint because Local 39 would not stipulate to the filing of
an amended complaint. Local 39 filed its first anti-SLAPP
motion against the original complaint on November 24, 2020.
Local 39 argued the complaint alleged acts in furtherance of its
right to free speech on a public issue because its statements and
conduct occurred during and concerned a labor dispute. It then
argued Macy’s could not establish a probability of prevailing on
the merits because, among other things, the complaint did not
satisfy Labor Code section 1138, which establishes a heightened
standard of proof for claims against organizations arising out of
labor disputes. 1
During the briefing on the anti-SLAPP motion, Macy’s
submitted declarations from its employees that expanded upon
the allegations in the complaint. One employee stated that on
one occasion, a picketer hit her on the shoulder with a sign.
Another employee said a picketer had followed him and blasted a
siren from a bullhorn in his ears. A third employee described
how picketers stood between customers and the store’s entrances,
causing the customers to push through the picketers, and stood in
the receiving dock area, preventing the delivery of goods to the
store. The employee stated that picketers created loud and
obnoxious noise through loud music, compressed air horns and
whistles, sirens on electronic bullhorns, and banging on drums
and pieces of metal that caused employees to have migraines,
dizziness, disorientation, and hearing loss. This employee said
1 Undesignated statutory references are to the Labor Code.
3
the picketers blasted customers and employees, including
himself, directly in the face with the compressed air horn. The
employee described security camera footage that showed
picketers looking into a drainpipe shortly before a sewage backup
occurred in the pipe, which was likely caused by a T-shirt and
water bottle placed in the drainpipe. This employee further
stated that water ceased flowing in some store restroom faucets
because certain wires were cut and that Local 39 members had
unique knowledge about the wires that activated the faucets.
The employee also accused the picketers of damaging a planter
by banging a piece of metal against it and throwing small rocks
into several doorways that caused the doors to jam, necessitating
repair.
After a hearing on December 30, 2020, the trial court
granted Local 39’s anti-SLAPP motion in part. The court ruled
that Macy’s could not show a probability that it would prevail on
the complaint’s allegation that Local 39 engaged in misconduct
through mass picketing and its prayer for relief requesting an
injunction preventing Local 39 from allowing any picketing at the
store, so it ordered those aspects of the complaint stricken. But
the trial court also ruled that the complaint’s claims based on
obstruction of ingress and egress, unreasonable noise, property
damage, striking an employee with a sign, and blasting of a
bullhorn in an employee’s ears had minimal merit and could
proceed.
That same day, the trial court granted Macy’s leave to
amend its complaint. Local 39 then filed a notice of appeal of the
4
anti-SLAPP ruling. A few days after that, Macy’s filed an
amended complaint, which omitted the language from the
original complaint that the trial court had ordered stricken and
added details that had previously been set forth only in the
various declarations.
Local 39 responded by filing a second anti-SLAPP motion
directed at the amended complaint. The trial court denied this
motion on two grounds: first, it viewed the motion as an
untimely motion for reconsideration of its ruling on the first anti-
SLAPP motion; and second, it determined that Local 39’s appeal
of the ruling on the first anti-SLAPP motion stayed all further
proceedings on the merits of the causes of action in the original
complaint. Local 39 moved for reconsideration of the ruling on
the second anti-SLAPP motion, but the trial court denied that
motion as well.
DISCUSSION
I. Applicable legal principles and standard of review
“The anti-SLAPP statute is ‘designed to protect defendants
from meritless lawsuits that might chill the exercise of their
rights to speak and petition on matters of public concern.
[Citations.] To that end, the statute authorizes a special motion
to strike a claim “arising from any act of that person in
furtherance of the person’s right of petition or free speech under
the United States Constitution or the California Constitution in
connection with a public issue.” ([Code Civ. Proc.,] § 425.16,
subd. (b)(1).)’ [Citation.]
5
“Litigation of an anti-SLAPP motion involves a two-step
process. First, ‘the moving defendant bears the burden of
establishing that the challenged allegations or claims “aris[e]
from” protected activity in which the defendant has engaged.’
[Citation.] Second, for each claim that does arise from protected
activity, the plaintiff must show the claim has ‘at least “minimal
merit.” ’ [Citation.] If the plaintiff cannot make this showing,
the court will strike the claim.” (Bonni v. St. Joseph Health
System (2021) 11 Cal.5th 995, 1008–1009.)
“We review de novo the grant or denial of an anti-SLAPP
motion. [Citation.] We exercise independent judgment in
determining whether, based on our own review of the record, the
challenged claims arise from protected activity. [Citations.] In
addition to the pleadings, we may consider affidavits concerning
the facts upon which liability is based. [Citations.] We do not,
however, weigh the evidence, but accept plaintiff’s submissions as
true and consider only whether any contrary evidence from the
defendant establishes its entitlement to prevail as a matter of
law.” (Park v. Board of Trustees of California State University
(2017) 2 Cal.5th 1057, 1067.)
II. First anti-SLAPP motion
Macy’s does not dispute that the trial court correctly
determined that the complaint arises from protected activity
because its allegations concern picketing. We therefore proceed
directly to the second anti-SLAPP step and consider whether the
trial court correctly concluded that Macy’s established that the
claims in the complaint have minimal merit. Macy’s has not
6
appealed from the trial court’s order that some of the claims in
the complaint be stricken because they lacked minimal merit.
We therefore consider only the claims that the trial court allowed
to proceed. Local 39 offers several different reasons why Macy’s
cannot establish that its claims have minimal merit, but we need
only address one—the argument that the trial court misstated
and misapplied the standard of proof specified in section 1138. 2
“To satisfy [the anti-SLAPP] prong-two showing, the
plaintiff must present credible evidence that satisfies the
standard of proof required by the substantive law of the cause of
action the anti-SLAPP motion challenges.” (De Havilland v. FX
Networks, LLC (2018) 21 Cal.App.5th 845, 856.) Where the law
requires proof by a higher standard for a cause of action, such as
clear and convincing evidence, a court must evaluate the
plaintiff’s evidentiary showing bearing in mind the higher
standard of proof. (Ibid.; Conroy v. Spitzer (1999) 70 Cal.App.4th
1446, 1451–1452; cf. Conservatorship of O.B. (2020) 9 Cal.5th
989, 1011 [“an appellate court must account for the clear and
convincing standard of proof when addressing a claim that the
evidence does not support a finding made under this standard”].)
Section 1138 is one such a law. That statute states in full,
“No officer or member of any association or organization, and no
association or organization, participating or interested in a labor
2 We deny as unnecessary Local 39’s request for judicial
notice of a ruling by an administrative law judge in a related
proceeding before the National Labor Relations Board, as that
request is relevant only to arguments that we need not reach.
7
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.” (§ 1138, italics added.) This
statute was modeled after section 6 of the federal Norris-
LaGuardia Act (29 U.S.C. 101 et seq.), which is substantively
identical except that it permits the imposition of liability “upon
clear proof of actual participation in, or actual authorization of,
such acts, or of ratification of such acts after actual knowledge
thereof.” (29 U.S.C. § 106; Waremart Foods v. United Food and
Commercial Workers Union, Local 588 (2001) 87 Cal.App.4th 145,
156 (Waremart).)
“[T]he simple concern of Congress [behind the federal
statute] was that unions had been found liable for violence and
other illegal acts occurring in labor disputes which they had
never authorized or ratified and for which they should not be held
responsible. Congress discerned a tendency in courts to blame
unions for everything occurring during a strike. Nor was the
problem necessarily limited to labor unions. The straightforward
answer was [29 United States Code section 106], with its
requirement that when illegal acts of any individual are charged
against one of the major antagonists in a labor dispute—whether
employer or union—the evidence must clearly prove that the
individual’s acts were authorized or ratified.” (Ramsey v. Mine
Workers (1971) 401 U.S. 302, 310, fn. omitted.) The Supreme
Court has clarified that the federal statute’s “ ‘clear proof’’ ”
standard means “ ‘clear, unequivocal, and convincing proof’ ” that
8
persuades “by a substantial margin,” which is more than the
usual civil standard of a bare preponderance of the evidence but
less than the criminal standard of proof beyond a reasonable
doubt. (Mine Workers v. Gibbs (1966) 383 U.S. 715, 737 (Gibbs).)
The Legislature’s express purpose for section 1138 was to adopt a
rule similar to the federal law. (Waremart, supra, 87 Cal.App.4th
at p. 156.)
It is undisputed here that Local 39 is an organization
participating or interested in a labor dispute. The only questions
are whether the trial court applied the correct standard of proof
when considering Macy’s evidentiary showing and whether it did
so correctly.
Local 39 first argues that the trial court erroneously ruled
that Local 39’s request that it hold Macy’s to the clear proof
standard in section 1138 was asking the court to apply an
unrealistically high standard. This argument is based on the
trial court’s statements that it rejected Local 39’s argument that
Macy’s evidentiary showing was insufficient to show the requisite
clear proof of Local 39’s participation in or authorization of the
alleged unlawful conduct, and that Local 39 “would have the
Court impose an unrealistically high standard of proof.” Local 39
reads these statements as meaning Macy’s did not have to show
clear proof of Local 39’s participation at the second anti-SLAPP
step. Macy’s agrees, although it contends this correctly states the
law.
As explained, ante, the standard of proof affects the
showing a plaintiff must make in anti-SLAPP litigation, with a
9
higher standard of proof requiring a greater evidentiary showing.
(De Havilland v. FX Networks, LLC, supra, 21 Cal.App.5th at
p. 856.) Macy’s need not prove its case in the sense that it need
not disprove any contrary evidence from Local 39. But Macy’s
must present evidence that, if credited, would satisfy the higher
standard of clear proof, as required under section 1138. The trial
court’s statement of the standard was consistent with this
principle. Read in context, the trial court did not mean that the
clear proof standard was unrealistically high or that Macy’s did
not need to submit prima facie evidence that would satisfy it.
Rather, the trial court meant merely that Local 39’s position that
Macy’s had not made a prima facie showing of clear proof was too
exacting, and that Macy’s evidence satisfied the standard in this
case. The trial court therefore used the correct standard of proof.
The trial court nevertheless erred in applying this standard
to Macy’s claims and evidentiary showing. The trial court’s
reasoning, which Macy’s endorses on appeal, began from the
premise that Macy’s did not need to provide evidence of a direct
order from Local 39 to engage in misconduct in order to hold it
liable, implying that circumstantial proof was sufficient. The
trial court drew this principle from Security Farms v.
International Broth., Warehousemen & Helpers (9th Cir. 1997)
124 F.3d 999, 1013–1014 (Security Farms). In that decision
applying the federal model for section 1138, the court held that
the record supported the trial court’s finding that the plaintiff
established clear proof of a union’s participation in certain
misconduct, despite the absence of evidence of a direct order to
10
engage in misconduct. (Id. at pp. 1013–1014.) The court found
sufficient evidence that (1) the union’s leaders committed
unlawful acts themselves or were often present when the
unlawful acts were committed; (2) the union knew of its leaders’
actions, did not discipline them, and allowed them to keep their
positions; and (3) the union did not always act to prevent or
curtail the wrongful conduct. (Id. at p. 1014.)
Applying Security Farms, the trial court here concluded
that a trier of fact could readily infer that Local 39 had
knowledge of the alleged unlawful acts and did not always act to
prevent or curtail it. As evidence supporting such an inference,
the trial court cited Local 39’s admission that it called the strike,
the pervasive and repeated nature of the actions over the course
of 75 days, and a record of complaints and other communications
between Macy’s and Local 39. The trial court further explained
at the hearing that Local 39’s argument about the lack of
authorization was more persuasive as to single instances of
misconduct, such as the incident in which a picketer struck an
employee on the shoulder with a sign. But it found that for the
repeated conduct over the course of the 75-day strike that
involved seemingly concerted behavior, Macy’s evidence
supported an inference that Local 39 itself authorized the
activity.
The trial court ultimately allowed Macy’s to proceed on its
claims based on five categories of misconduct: (1) obstruction of
ingress and egress; (2) unreasonable noise; (3) property damage
from the sewer backup, damage to restrooms, throwing rocks at
11
doors, and banging a piece of metal on a planter; (4) hitting an
employee with a sign; and (5) blasting a bullhorn directly in an
employee’s ears. But three of these categories—the property
damage, the battery with the sign, and the blasting of the
bullhorn—did not involve repeated and pervasive conduct. Both
involved actions that Macy’s alleged happened only in single or a
few instances. Even by the trial court’s own rationale, the
inference of authorization that might arise from pervasive
misconduct repeated over a long period cannot save these claims,
so Macy’s did not make a prima facie showing that would support
a judgment in its favor on them.
Macy’s evidence also does not constitute clear proof as to
any of these claims because of a complete lack of evidence of
Local 39’s actual involvement. Circumstantial proof of actual
participation or actual authorization can satisfy the statute.
(James R. Snyder Co. v. Edward Rose & Sons (6th Cir. 1976)
546 F.2d 206, 209 [construing federal statute].) But such
circumstantial evidence must nevertheless be “ ‘clear,
unequivocal, and convincing proof.’ ” (Gibbs, supra, 383 U.S. at
p. 737; Snyder, at p. 209). Proof of this sort requires something
more than evidence of unlawful acts by Local 39’s members, even
in groups and over a substantial period of time, or Local 39’s
failure to take measures to prevent such acts; “ ‘there must be
evidence showing some definite and substantial connection’ ”
between Local 39 and the unlawful acts Macy’s alleged. (Fry v.
Airline Pilots Ass’n, Intern. (10th Cir. 1996) 88 F.3d 831, 842,
italics omitted.)
12
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. This case is
therefore unlike Security Farms because 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. (Security
Farms, supra, 124 F.3d at p. 1014; see also Gibbs, supra, 383 U.S.
at p. 738 [no proof of union’s authorization or participation in
violence where union representative was not present at the site
during the violence and violence subsided when he returned].)
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.
(Gibbs, supra, 383 U.S. at p. 741 [“An ‘impression’ is too
ephemeral a product to be the result of ‘clear proof’ ”].)
The trial court cited a record of complaints and
communication between Macy’s and Local 39 as evidence
supporting Macy’s complaint. But we have been unable to find,
13
and Macy’s has not cited, any evidence in the record to
substantiate the trial court’s statement. One of Macy’s
employees declared that he and other employees asked the
picketers “every day” to keep back from the store’s entrances and
requested multiple times that they lower the volume of their
activities. But speaking with picketers is not equivalent to
speaking with Local 39; to establish the latter, Macy’s needed to
submit evidence that it spoke to an officer, business agent, or
other officer with responsibility for the organization. Without
evidence that the picketers the employee spoke to were Local 39
leaders of some sort, Macy’s conversations with picketers do not
tend to show that the organization itself actually authorized any
misconduct.
The need for evidence directly tying Local 39 to the
behavior Macy’s complains of is not a mere formality. Section
1138, like its federal counterpart, exists to prevent courts from
holding a union liable for misconduct by its members during a
strike without clear proof that the union itself actually approved
the misconduct. (Waremart, supra, 87 Cal.App.4th at p. 156;
Ramsey v. Mine Workers, supra, 401 U.S. at p. 310.) Thus, Local
39 cannot be held responsible for the actions of its members on
the picket line without some indication that Local 39 itself
actually authorized the actions. Moreover, the individuals on the
picket line who committed the various actions alleged may not
have been members of Local 39 at all. Local 39 submitted a
declaration stating that members of other unions and the general
public joined Local 39 members in a showing of solidarity with
14
the union. The potential presence of non-members on the picket
line makes it essential that Macy’s tie the alleged misconduct to
Local 39 itself to prove its claims have minimal merit.
Our conclusion that Macy’s evidentiary showing falls short
of the clear proof standard does not mean that the standard is
impossible to meet in anti-SLAPP cases, as Macy’s contends.
Macy’s presumably has long known who Local 39’s leaders are
and could recognize them on the picket line. A simple declaration
attesting to a leader’s participation in picketing in front of an
entrance or using a loud noisemaking device or, at a minimum, a
leader’s presence at the picketing during such actions would have
satisfied the statute. If Macy’s did not have such evidence but
believed it existed, it could have requested limited discovery to
obtain it. (Code Civ. Proc., § 425.16, subd. (g).)
Macy’s also could have submitted evidence that it
complained directly to Local 39’s leaders about the misconduct,
which would have established Local 39’s knowledge of the alleged
misconduct. Section 1138, unlike its federal counterpart, does
not permit imposition of liability based on clear proof that an
organization ratified misconduct, so this would not necessarily
permit the imposition of liability for misconduct pre-dating the
communication. (Compare § 1138 [requiring clear proof of actual
participation or actual authorization] with 29 U.S.C. § 106[requiring clear proof of actual participation, actual
authorization, or ratification after actual knowledge]; see also
Assem. Comm. On Labor and Employment, Rep. on Assem. Bill.
No. 1268 (1999–2000 Reg. Sess.) Apr. 21, 1999, at p. 6 [noting the
15
absence of the ratification provision].) But continued misconduct
after such complaints could support an inference that Local 39
approved of and actually authorized the further misconduct.
III. Second anti-SLAPP motion
Because the trial court should have granted Local 39’s first
anti-SLAPP motion in full, it is unnecessary to discuss the merits
of Local 39’s second anti-SLAPP motion directed at the amended
complaint. Had the trial court granted the first motion, Macy’s
would not have been allowed to file the amended complaint, so
Local 39 would not have needed to file a second anti-SLAPP
motion against it. (Dickinson v. Cosby (2017) 17 Cal.App.5th 655,
676 [“Although the anti-SLAPP statute does not specifically state
it, a plaintiff whose complaint is stricken by a successful anti-
SLAPP motion cannot try again with an amended complaint.
There is no such thing as granting an anti-SLAPP motion with
leave to amend”].)
DISPOSITION
The trial court’s order granting in part and denying in part
Local 39’s first anti-SLAPP motion is affirmed to the extent that
it granted the motion and reversed to the extent that it denied
the motion. The trial court is directed to enter a new order
granting the motion in its entirety and striking Macy’s original
complaint.
BROWN, J.
I CONCUR:
GOLDMAN, J.
Stationary Engineers Local 39 v. Macy’s, Inc. (A161959)
16
POLLAK, P.J. — 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 union’s 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.
POLLAK, P. J.
1
Trial Court: San Francisco City & County Superior Court
Trial Judge: Hon. Ethan P. Schulman
Counsel: Weinberg, Roger & Rosenfeld, Gary P.
Provencher and Andrea Matsuoka for
Defendant and Appellant.
Jackson Lewis, Gabriel N. Rubin and JaVon A.
Payton for Plaintiff and Respondent.