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(A version of this article appears in the California
Construction Law Reporter, published by the West Group.)
By
James E. Acret
Representatives
of the carpenters union entered public works project jobsites
of non-union Rainbow Construction Company in Mendocino County,
California, to inspect for compliance with prevailing wage
laws and safety regulations. Rainbow's president ordered
the union representatives to leave, and they replied that
they were engaged in "lawful union business."
The contractor effected a citizen's arrest and turned them
over to the custody of the police, who booked them and released
them without bail. This happened three times, and the deputy
district attorney refused to prosecute.
The
contractor complained to the district attorney, who took
over the cases herself and prosecuted without doing any
legal research and without talking to the two deputies who
had declined prosecution. The jury acquitted all three union
representatives.
The
union reps then sued the contractor and the district attorney,
alleging conspiracy to violate 42 USC §1983 by denying
the right to engage in concerted activities as guaranteed
by the National Relations Act, 29 USC §157. Pursuant
to 42 USC §1983, it is unlawful under color of statute
to subject any person to deprivation of privileges and immunities
granted by law. The U.S. District Court concluded that plaintiffs
had failed to present any evidence of conspiracy and awarded
sanctions of $75,000 against plaintiffs' attorneys under
Federal Rules of Civil Procedure Rule 11.
Dismissal
of the §1983 claims was affirmed; dismissal of claims
for false arrest, false imprisonment, malicious prosecution
and imposition of sanctions was reversed. Radcliffe v.
Rainbow Construction Company, 254 F.3d 772 (9th Cir.
2001); cert. den., 122 S.Ct. 545.
The
Court of Appeals held: 1) The §1983 claim is
pre-empted by the NLRA. 2) The District Attorney
is absolutely immune from liability arising from a decision
to prosecute. 3) There was no evidence of conspiracy.
4) State laws dealing with a false arrest, false
imprisonment and malicious prosecution are not pre-empted
by the NLRA. The fact that a state tort also may constitute
an unfair labor practice does not inevitably cause pre-emption.
It remains for the District Court to determine whether there
was probable cause for the arrest and prosecution. 5)
The award of sanctions is reversed for failure to comply
with the 21-day notice requirements of FRCP Rule 11 (c)
(1) (A). Reinhardt, dissenting, thought there was evidence
of conspiracy.
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To learn more about Howrey's Construction Practice Group, click here. For more information about books and other legal materials written by James Acret, click here and enter "Acret" in the site search engine. To learn more about topics covered in this article, contact Paul Berning at 415-848-4996 or at paulberning@howrey.com.
©2002 Howrey LLP
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