Effective January 1, 2000, an additional chapter will be added to the California Labor Code that will not only make it more difficult to hold labor unions accountable for unlawful picket line activities, but may also hamstring efforts to prevent further violence and coercive picket line misconduct through the issuance of injunctive relief. On October 5, 1999, Governor Davis approved Assembly Bill 1268, which heightens the existing standard of proof under state law necessary to hold unions accountable for unlawful acts of individual picketers. It also restricts a court's ability to issue temporary restraining orders or other preliminary or permanent injunctions to enjoin prospectively unlawful picket line activities. Legitimate concern exists that the enactment may ultimately promote labor unrest and lawlessness during labor disputes and provide tacit approval of violence by essentially holding no one accountable for misconduct by individual members.
New Standards And Requirements
- "Clear Proof" Standard
A primary stated purpose of AB 1268 is to bring state requirements in line with existing federal standards set out in the federal Norris-LaGuardia Act. In 1932 Congress passed the Norris-LaGuardia Act to protect unions from injunctions sought by employers to disrupt the collective bargaining process. Section 6 of the Norris-LaGuardia Act holds individual members participating in unlawful acts and violence solely responsible absent "clear proof" that the labor organization approved the activities. After the Norris-LaGuardia Act's enactment, many states, including California, enacted "little Norris-LaGuardia Acts" adopting some or all of its aspects. California Code of Civil Procedure Section 527.3 sets forth the California state standards applicable to illegal picketing and the issuance of injunctive relief in labor disputes but does not expressly reference a "clear proof" standard. As a result, various California state courts, in considering tort liability against a union for picket line misconduct, have used a lower "preponderance of the evidence" standard. AB 1268 will expressly alter that result.
Effective January 1, 2000, no union officer or member may be held responsible or liable for the unlawful acts of individual officers, members, or agents, except upon "clear proof of actual participation in, or actual authorization" of those unlawful acts. In raising the bar on holding a union responsible for acts of its membership, it is legitimately feared that unions may thereby prove able to avoid liability through subtle winks and conscious ignorance of picket line misconduct.
- New Requirements For The Issuance Of Injunctive Relief
AB 1268 also places additional restrictions on a court's ability to enjoin continuing picket line misconduct through temporary restraining orders or more lasting injunctive relief. Where picket line violence and/or coercion has existed, employers have historically sought to obtain a temporary restraining order and thereafter, as necessary, a more lasting preliminary or permanent injunction, prohibiting such picket line misconduct. As a result of the recent amendments, however, such efforts may now prove to be more difficult and cumbersome.
Under state law, a temporary restraining order to prevent ongoing picket line misconduct may take various forms, as may be appropriate, including restrictions on the size, density, location, time, or loudness of the picketing activities. Factual evidence in support of and in opposition to a petition for a temporary restraining order under state law has traditionally been supplied to and accepted by the courts in the form of sworn affidavits. A hearing, for the purpose of determining whether more long-term injunctive relief should be issued has generally been scheduled to take place within 15 days from the issuance of the temporary restraining order. At that hearing, the courts have been authorized to exercise discretion over whether to require live testimony and an opportunity for cross examination, or instead continue to rely on sworn affidavits. In most cases, the courts have preferred the use of sworn affidavits.
Although its terms are somewhat ambiguous, AB 1268 appears to significantly alter these requirements. Under AB 1268, the courts will generally lack the authority to issue a temporary restraining order or other injunctive relief in matters involving labor disputes except after hearing testimony of witnesses in open court, with an opportunity for cross-examination. The courts will also now be required to make certain findings of fact before any injunctive relief can be issued. Specifically, the court must find:
- That unlawful acts have been threatened and will be committed unless restrained, or have been committed and will continue unless restrained;
That substantial and irreparable injury to the complainant's property will follow;
- That as to each item of relief granted, greater injury will be inflicted upon the complainant by the denial of relief than will be inflicted upon the defendant by the granting of relief;
- That complainant has no adequate remedy at law. Stated another way, that money damages assessed after injuries are incurred would be insufficient; and
- That the police are unable or unwilling to furnish adequate protection.
In addition, by its terms, courts may not grant a restraining order or injunctive relief to any complainant (e.g., employer) who fails to make "every reasonable effort" to settle the dispute either by negotiation or with the aid of any "available governmental machinery or mediation or voluntary arbitration." Also, no injunctive relief may be issued except on the condition that the complainant first posts a bond, as security, in an amount to be fixed by the court, sufficient to compensate those enjoined for any loss, expense, or damage caused by a granted injunction that is subsequently deemed erroneous and denied by the court.
The Bill seemingly provides a limited exception to the new live testimony and cross-examination requirements that are otherwise applicable to injunctive relief efforts. The Bill states that if a complainant also alleges that, unless a temporary restraining order is issued without notice, a "substantial and irreparable injury to complainant's property will be unavoidable," a temporary restraining order may be issued upon testimony under oath, sufficient, if sustained, to justify the court in issuing a temporary injunction upon a hearing after notice. However, in such a situation, the temporary restraining order is limited to no more than five days, and thereafter becomes void. Although it appears that a hearing with witness testimony and cross-examination is not necessary to obtain this limited temporary restraining order, the provision is ambiguously drafted, and its availability is not entirely clear.
Implications For Employers
Although the Bill is ambiguous and may improperly extend into areas exclusively covered by federal law, greater clarity and definitive guidance likely will not be forthcoming absent further review by the courts. In the meantime, employers are well advised to be prepared for all possible interpretations, particularly those which are most restrictive.
As a result of the heightened "clear evidence" requirement, careful attention must be given by employers to verify and establish the union's actual participation and/or authorization. Accordingly, it is now even more important that proof be obtained, whenever possible, verifying who is participating in the picket line activities and misconduct and the nature of their relationship to the union(s). This can best be accomplished through a combination of personal observations, photographs and/or lawful videotaping. Note should carefully be taken of descriptive union insignia on hats, shirts, etc. and union slogans that are chanted, which may demonstrate union participation or authorization. In addition, employers should promptly advise the union, in writing, of all picket line misconduct and risks of future misconduct in order to avoid union efforts to deny actual knowledge of the wrongdoing and its effects.
It appears that injunctive relief generally will not be issued without a hearing, witness testimony, and an opportunity for cross-examination. The existence and scope of limited exceptions is not entirely clear, and employers are well advised to prepare for a worst-case scenario and plan accordingly. Employers should ultimately be prepared to offer live witness testimony and address cross-examination, if required. Contact addresses and phone numbers for all percipient witnesses should be obtained, whenever possible, in case their future participation at a hearing proves necessary.
Given that the Bill now expressly requires that, before an injunction can be issued, the court find that the police are unable or unwilling to furnish adequate protection, employer efforts to obtain police protection against improper picketing should also promptly be made. Absent such cooperation, the unwillingness or inability of the police to protect against ongoing misconduct, and the nature and extent of the resulting damage or injury should be established and preserved through eye witnesses, photographs, and video coverage, whenever and to the greatest extent legally possible.
By its terms, the Bill precludes the issuance of injunctive relief to any complainant who has "failed to comply with any legal obligation" or who has failed to make "every reasonable effort" to settle the dispute either by negotiation or with the aid of any available governmental machinery or mediation or voluntary arbitration. This provision may unlawfully intrude upon federal law, but until clarification of the legality of this provision is determined through future litigation, employers must be prepared to demonstrate that all "reasonable" means to resolve the dispute informally were undertaken and should attempt to satisfy this requirement at an early juncture. An employer should communicate all efforts to resolve the difficulties in writing to avoid misunderstandings and assist, if necessary, in proving to a reviewing court that the employer's obligations were satisfied. The propriety of alternative dispute resolution options such as mediation or arbitration should be considered at an early stage, ideally before injunctive relief becomes necessary, to resolve the matter informally, if possible, or otherwise reduce the likelihood that a court might refuse injunctive relief based on an alleged failure to satisfy this requirement.
Unfortunately for California employers, it appears that the ability to hold unions accountable for picket line misconduct by their membership and to seek and obtain injunctive relief will be more onerous and burdensome as of January 1, 2000, as the result of the enactment of AB 1268. Employers are advised to consult with employment counsel for particularized guidance on the appropriate manner in which to proceed in preventing and minimizing picket line violence, coercion, and disruptions in pending labor disputes, in light of these new standards and requirements.
*article courtesy of Littler Mendelson.