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Premier Floor Care Inc. v. Service Employees International Union

United States District Court, N.D. California

June 27, 2019

PREMIER FLOOR CARE INC., Plaintiff,
v.
SERVICE EMPLOYEES INTERNATIONAL UNION, UNITED SERVICE WORKERS WEST, Defendant.

          ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT Re: Dkt. No. 60

          HAYWOOD S. GILLIAM, JR. United States District Judge

         Pending 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 judgment.

         I. BACKGROUND

         The 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.”).

         A. 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. F.[1] 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.”)[2] ¶ 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. ¶ 15.

         Nick 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.

         B. Dispute Between SEIU and Premier

         In 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.

         On 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.

         C. SEIU's Labor Activities

         Negotiations 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 location.” Id.

         There 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. ¶¶ 18-20.

         II. LEGAL STANDARD

         Summary 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).

         With 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 ...


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