United States District Court, N.D. California
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT Re: Dkt. No. 60
HAYWOOD S. GILLIAM, JR. United States District Judge
before the Court is the motion for summary judgment brought
by Defendant Service Employees International Union, United
Service Workers West (“SEIU” or the
“Union”). Dkt. No. 60 (“Mot.”). The
Court held a hearing on Defendant's motion on June 13,
2019. Because the Court finds that there is a genuine dispute
of material fact as to whether SEIU's labor activity was
prohibited under § 8(b)(4)(ii)(B) and whether that
activity caused Plaintiff Premier Floor Care, Inc.
(“Premier”) to lose its contract with Safeway,
Inc. (“Safeway”), the Court
DENIES Defendant's motion for summary
Court briefly recounts the facts viewed in the light most
favorable to Premier, the nonmoving party, as it must at the
summary judgment stage. See Tolan v. Cotton, 572
U.S. 650, 651 (2014); see also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986) (“The evidence of
the non-movant is to be believed, and all justifiable
inferences are to be drawn in his favor.”).
Premier's Relationship with Safeway
Premier brings this action against SEIU for violation of the
secondary picketing provision in § 8(b)(4) of the
National Labor Relations Act (“NLRA”). Premier is
a contractor that provides commercial floor care services to
supermarket stores, such as Safeway. Dkt. No. 70-17,
Declaration of Cedric Moore (“Moore Decl.”)
¶ 4. Premier has been one of Safeway's janitorial
contractors since 2001 and generally has had a good working
relationship with Safeway. Moore Decl. ¶¶ 5-8;
see also Dkt. No. 70-22, Ex. E; Dkt. No. 70-23, Ex.
Starting around July 2017, Safeway began soliciting bids from
contractors to perform janitorial services. Dkt. No. 61-4,
Ex. 4, Declaration of Stephanie Evans (“Evans
Decl.”) ¶ 3; Dkt. No. 61-14, Ex. 14. Premier
participated in the first round of bidding and was selected
to move forward and participate in the second round in
October 2017. Evans Decl. ¶ 4. At that time, Safeway was
contemplating providing Premier two districts to service.
Dkt. No. 61-30, Ex. 30. However, Premier was not informed of,
nor invited to join, the third round of bidding. Moore Decl.
Hines, Manager of Labor for Safeway Northern California
stores, noted that Safeway could save $2, 200, 000 if it
decided to replace Premier with King Janitorial Equipment
(“King”), one of Premier's competitors. Dkt.
No. 61-32, Ex. 32. But despite Premier not being the lowest
bidder, Mr. Hines believed “Premier is a good company
and we have headaches, but they do a good job.”
Id. Notwithstanding the cost, Mr. Hines said Safeway
could still balance the overspend in some of the districts
Premier would service. Id. However, in February
2018, King ultimately was awarded the contract to service
multiple Northern California Safeway stores. Evans Decl.
¶ 7. Safeway terminated its contract with Premier, which
Premier alleges resulted in a net lost income of
approximately $5, 500, 000. Moore Decl. ¶ 17.
Dispute Between SEIU and Premier
September 2016, SEIU invited Premier to renegotiate the
Safeway Contractors' Agreement, which expired in 2015.
Dkt. No. 61-15, Ex. 15 at PFC000153. King had agreed to
renegotiate with SEIU and was able to reach an agreement.
Id. at PFC000165. Although Sanford Rudnick, a labor
consultant negotiating on behalf of Premier, and Pedro
Malave, a coordinator at SEIU, attempted to come together and
bargain, Premier and SEIU were unable to settle on an
agreement. Id. at PFC000205-213. Because Mr. Malave
felt that Mr. Rudnick was refusing to bargain, he told Mr.
Rudnick that he would be filing an unfair labor practice
claim (“ULP”) and “starting actions at all
Premier sites.” Id. at PFC000208.
August 9, 2017, Mr. Malave sent Ms. Evans an email notifying
her of the dispute between SEIU and Premier. Dkt. No. 61-18,
Ex. 18. He also informed her that SEIU was not having issues
with contractors such as King and others that “have an
interest in bidding for the account at Safeway.”
Id. Based on this information, Mr. Malave hoped
“Safeway [could] reconsider their current relationship
with Premier.” Id.
SEIU's Labor Activities
between SEIU and Premier completely broke down by fall of
2017, and SEIU began demonstrations against Premier in
November 2017 at Safeway sites. During one of the
demonstrations on November 22, 2017, SEIU members went to a
Safeway store that Premier was servicing. The members carried
bullhorns, drums, and noisemakers, and were given T-shirts
and fliers. Dkt. No. 70-15, Ex. N, Declaration of Jose
Sanchez (“Sanchez Decl.”) ¶¶ 9-11. The
fliers informed readers that Premier had not agreed to adopt
the new union contract and was not negotiating fairly, and
that the members were asking patrons for their support. Dkt.
No. 61-24, Ex. 24. (“Please tell the Store Manager here
that you support good working conditions for the Janitors,
and that PREMIER FLOOR CARE should negotiate fairly and agree
to the wage and benefits improvements that other companies
have already adopted”). A footnote at the bottom of the
flier clarified that “SEIU-USWW has a dispute with
Premier Floor Care and not with any other employer at this
were approximately 40 to 100 participants at the
demonstration. See Dkt. No. 61-19, Ex. 19; Sanchez
Decl. ¶ 9. Jose Sanchez, a participant at the
demonstration, heard the SEIU leader, Alan Gallegos, say the
purpose of the activity was “to get Premier out of
Safeway stores and get King in” because Premier would
not “sign the Union contract.” Id.
¶ 11. The members, wearing their T-shirts, first crowded
in front of the store and eventually marched inside and
surrounded the perimeter. Dkt. No. 61-19, Ex. 19; Dkt. No.
61-20, Ex. 20; see also Sanchez Decl. ¶ 10.
They proceeded to chant, yell, and bang the drums, apparently
scaring Safeway customers. Sanchez Decl. ¶ 13; Dkt. No.
61-19, Ex. 19 (“They marched in the store around the
perimeter of the store using the bull horn and drums scaring
customers.”) The Safeway Store Director called the
police to “contain [the Union members] to one area
where they were not making it impossible for customers to
shop.” Dkt. No. 61-19, Ex. 19. Similar events occurred
on or around November 30, 2017, and December 7, 2017, at
different Safeway locations. Sanchez Decl. ¶¶
judgment is proper when a “movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). A fact is “material” if it “might
affect the outcome of the suit under the governing
law.” Anderson, 477 U.S. at 248. And a dispute
is “genuine” if there is evidence in the record
sufficient for a reasonable trier of fact to decide in favor
of the nonmoving party. Id. But in deciding if a
dispute is genuine, the court must view the inferences
reasonably drawn from the materials in the record in the
light most favorable to the nonmoving party, Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587-88 (1986), and “may not weigh the evidence or make
credibility determinations, ” Freeman v.
Arpaio, 125 F.3d 732, 735 (9th Cir. 1997), overruled
on other grounds by Shakur v. Schriro, 514 F.3d 878,
884-85 (9th Cir. 2008). If a court finds that there is no
genuine dispute of material fact as to only a single claim or
defense or as to part of a claim or defense, it may enter
partial summary judgment. Fed.R.Civ.P. 56(a).
respect to summary judgment procedure, the moving party
always bears both the ultimate burden of persuasion and the
initial burden of producing those portions of the pleadings,
discovery, and affidavits that show the absence of a genuine
issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Where the moving party will not
bear the burden of proof on an issue at trial, it “must
either produce evidence negating an essential element of the
nonmoving party's claim or defense or show that the
nonmoving party does not have enough evidence of an essential
element to carry its ultimate burden of persuasion at
trial.” Nissan Fire & Marine Ins. Co. v. Fritz
Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). Where the
moving party will bear the burden of proof on an issue at
trial, it must also show that no reasonable trier of fact
could not find in its favor. Celotex, 477 U.S. at
325. In either case, the movant “may not require the
nonmoving party to produce evidence supporting its claim or
defense simply by saying that the nonmoving party has no such