Simo v. Union of Needletrades, Indus.
| Decision Date | 16 January 2003 |
| Docket Number | No. 01-55937.,01-55937. |
| Citation | 322 F.3d 602 |
| Parties | Tauni SIMO; Dalores Rowe; Maria Ramirez; Petra Villegas; Petra Deleon; Candy Fernandez; Gabriela Uribe; Angelina Perez; Maria Clark; Lourdes Gonzalez; Vilma Garcia; Dolores Olivas; Maria Osorio; Silvie Madrigal; Ana Gonzales; Maria Aguirre; Mariana Godina; Lidia Peraza; Chong Suk Kim; Claristine Hadley; Yong Hui Pak; Teresa Gomez; Noemi Maya; Teresa Wilson Sloan; Miyako Kanai, Plaintiffs-Appellants, v. UNION OF NEEDLETRADES, INDUSTRIAL & TEXTILE EMPLOYEES, Southwest District Council; Union of Needletrades, Industrial & Textile Employees, AFL-CIO; Antonio Orea; Roxana Guevara, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Linda S. Klibanow, Pasadena, CA, for the plaintiffs-appellants.
Michael Rubin, Daniel T. Purtell, Victor M. Ortiz-de Montellano, Altshuler, Berzon, Nussbaum, Rubin & Demain, San Francisco, CA; Della Bahan, Bahan & Herold, Pasadena, CA, for defendant-appellee UNITE.
Laurence S. Zakson, Carlos R. Perez, Reich, Adell, Crost & Cvitan, Los Angeles, CA, for defendant-appellees UNITE-SW, Antonio Orea, and Roxana Guevara.
Appeal from the United States District Court for the Central District of California, Christina A. Snyder, District Judge, Presiding. D.C. No. CV-98-00840-CAS.
Before: D.W. NELSON and T.G. NELSON, Circuit Judges, and SCHWARZER,* Senior District Judge.
The opinion filed January 16, 2003 , is amended as follows:
Slip op. at 762, line 9 : Replace the phrase "the union supporters" with "union officials and supporters"
Slip op. at 782, line 16 : In the sentence beginning "We find that the workers have not presented," replace "evidence amounting to" with "evidence that a reasonable jury could conclude amounts to"
Slip op. at 783, line 11 : Strike the paragraph beginning "Similarly, the union argues"
Slip op. at 788, line 1 : Strike the clause "that she wouldn't get her health benefits" and the comma following the clause
Slip op. at 788, line 23 : Before the sentence beginning "She also testified," insert "De Leon testified that, on one occasion, the union played loud music out of a van in the Sorrento parking lot."
Slip op. at 789, line 1 : Insert "and" before the clause "that if they didn't support the union"; in line 2, strike the clause "and that her health insurance had been canceled because she signed the decertification petition" and the preceding semicolon
Slip op. at 789, line 4 : Replace the phrase "She also testified that" with "She also testified that union officials mocked the workers by playing a song called `Cardboard Houses' at the Sorrento factory, and that"
With these amendments to the Opinion, the panel has unanimously voted to deny appellants' petition for rehearing. Judge T.G. Nelson voted to deny the petition for rehearing en banc. Judges D.W. Nelson and Schwarzer recommended denial of the petition for rehearing en banc.
The full court has been advised of the petition for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. (Fed. R.App. P. 35.)
The petition for rehearing and the petition for rehearing en banc are DENIED.
This suit arises out of a contentious labor struggle at a garment factory in San Bernardino, California. Twenty-five garment workers ("the workers") brought suit against their union and its officials after the union engaged in secondary pressure to remove work from their factory. The workers alleged that their own union retaliated against them because they sought to have it decertified, in breach of the duty of fair representation ("DFR"), and that the union and the individual defendants initiated a campaign of harassment and intimidation constituting intentional infliction of emotional distress ("IIED"). In an unpublished order entered on April 23, 2001, the district court granted summary judgment on all claims, concluding that the workers had not produced evidence demonstrating the bad faith necessary for a DFR claim, nor evidence of outrageous conduct necessary for an IIED claim. We affirm the district court's ruling.
At all times relevant here, the Union of Needletrades, Industrial and Textile Employees Southwest District Council ("UNITE-SW") was the exclusive bargaining agent of the workers of Sorrento Coats, Inc. ("Sorrento"). UNITE-SW is an affiliate of the Union of Needletrades, Industrial and Textile Employees, AFL-CIO ("UNITE," and together with UNITE-SW, "the union"). Sorrento was part of an integrated production structure that included M. Shapiro & Co. ("Shapiro"), a jobber1 that provided Sorrento with most of its work.
In May 1997, forty-two of the workers — a majority of the represented unit—signed a petition stating that they no longer wanted the union to represent them. On May 12 Sorrento told the union that it was withdrawing recognition and would not implement an extension of its collective bargaining agreement ("CBA") that had been agreed to earlier that year.
On May 14, 1997, the union requested that Shapiro, whose workers it represented and with whom it also had a CBA, stop sending work to Sorrento. Although there is some dispute as to whether it did so voluntarily, Shapiro complied, pulling its work from Sorrento. This secondary pressure is central to the claims in this case.
After Shapiro pulled its work from Sorrento, counsel for the workers made various requests and demands of the union, including demands to be provided with a copy of the union's collective bargaining agreement with Shapiro. Counsel originally made this request in a letter to UNITE SW dated June 27, 1997, and renewed the request in a letter to UNITE dated July 29, 1997. UNITE SW, through its counsel, denied the request in a letter dated July 9, 1997, stating that such documents would not be disclosed in the absence of a legal obligation to do so. UNITE never specifically responded to the request for the Shapiro CBA but replied to the letter in which the request was made on August 14, 1997.
On May 14, 1997, the union filed a charge with the National Labor Relations Board ("the Board") alleging unfair labor practices by Sorrento in violation of the National Labor Relations Act ("NLRA") including unlawful withdrawal of recognition, refusal to bargain in good faith, refusal to execute the CBA extension, and making various statements to workers to encourage decertification of the union.2 The union alleged that Sorrento management had sponsored the decertification effort. On November 6, 1997, the Board issued a complaint against Sorrento based on the union's charges.
On August 22, 1997, counsel for the workers filed a petition with the Board on behalf of two workers, appellants Tauni Simo and Maria Ramirez, seeking a decertification election for the Sorrento workers. On December 4, 1997, the Board's regional director dismissed the decertification petition, noting that the unfair labor practices alleged in the complaint against Sorrento tainted the evidence supporting the allegation that the workers no longer wanted the union (the "showing of interest").
On March 16, 1998, the union and Sorrento stipulated to a settlement of the Board's complaint, in which Sorrento would refrain from withdrawing recognition of the union, promising benefits to its workers if they rejected the union, or threatening its workers, and would begin bargaining with the union in good faith and implement the CBA extension. The Board approved the settlement in an order dated September 16, 1998.
The workers have presented evidence of a campaign of harassment by the union, its officials, and its supporters after the workers signed the decertification petition. Much of the harassment was attributed to Leovigilda Romero, a Sorrento employee and former UNITE-SW shop steward. Romero called the workers "stupid bitches" and said the union would kick their butts, told the plaintiffs in this action that they were stupid and would go to jail if they lost their suit, threatened the workers with deportation, and flipped her middle finger at one of the workers who started dancing when the union supporters were playing music at the Sorrento factory.
The workers also testified to harassing behavior by UNITE-SW officers Antonio Orea and Roxana Guevara. Both Orea and Guevara apparently told workers that they would lose their jobs due to their attempts to decertify the union. Orea told workers that they would "regret" signing the petition, that "the war has just begun," and that the union was going to battle. Several workers testified that Guevara told them they were stupid to sign the decertification petition and that, if they had been eating beans with the union, without the union, they would be eating shit. One worker testified that Guevara threatened to call immigration about the workers who did not have papers.
The workers' testimony established that representatives of the union, including Orea, visited workers at their homes to try to convince them to support the union. During these visits the union representatives made various threats that Sorrento would lose the Shapiro work and that the workers would lose their jobs and their health insurance. One worker testified that a union representative screamed her name from her front gate during a home visit.
The workers also testified that, one morning, flower arrangements and black ribbons appeared at the entrances to the Sorrento factory. On another occasion, the union officials and supporters played music at the factory, including a song...
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