RICHARD J. VAZNAUGH (SBN 173249)

LAW OFFICES OF RICHARD J. VAZNAUGH

1535 Mission Street, 2nd Floor

San Francisco, California 94103

(415) 487-0426

 

Attorney for Plaintiff

ZELBERT DAVIS                                                      

 

SUPERIOR COURT FOR THE

CITY AND COUNTY OF SAN FRANCISCO

                                                      UNLIMITED JURISDICTION                                                     

 

ZELBERT DAVIS,

 

Plaintiff,

 

vs.

 

AMERICAN BUILDING MAINTENANCE COMPANY, INC., ABM JANITORIAL SERVICES – NORTHERN CALIFORNIA,  and DOES 1-20, inclusive,

 

Defendants.

 

)

)

)

)

)

)

)

)

)

)

)

)

)

Case No.: 319528

 

PLAINTIFF ZELBERT DAVIS’ POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

 

Date: March 6, 2002

Time: 9:30 a.m.

Dept. 301

 

The Honorable James McBride 

Trial Date: May 6, 2002

 

 

 

 

 

 

 

 

TABLE OF CONTENTS

 

I.                INTRODUCTION.. 1

 

II.               FACTUAL BACKGROUND AND SUMMARY OF CLAIMS. 2

 

III.             SUMMARY JUDGMENT. 4

 

IV.             THIS COURT HAS SUBJECT MATTER JURISDICTION. 5

 

A.    THE NLRA, NLRB, AND PREEMPTION. 5

 

B.     THE LIMITS ON PREEMPTION. 6

 

1.  THE BREADTH OF PERMISSIBLE STATE  REGULATION IS EXTREMELY BROAD. 7

 

2. MR. DAVIS’ CLAIMS ARE NOT PREEMPTED BECAUSE THEY RELY SOLELY ON STATE PUBLIC POLICY PROVIDED BY MINIMUM AND FUNDAMENTAL STATE LABOR REGULATION. 10

 

C.    MR. DAVIS’S CLAIMS DO NOT ALLEGE VIOLATIONS OF THE RIGHT TO CONCERTED ACTION. 12

 

1.   DEFENDANTS HAVE NOT PRESENTED UNDISPUTED FACTS THAT THEIR MOTIVE IN FIRING MR. DAVIS VIOLATED THE RIGHT TO COLLECTIVE ACTION UNDER THE NLRA. 13

 

2.   THE VIOLATIONS ALLEGED IN MR. DAVIS’ BUS. & PROF. SEC. 17200 CLAIM ARE NOT EVEN ARGUABLY PROHIBITED BECAUSE THERE IS NO UNDISPUTED FACT THAT THE NO-DISCUSSION POLICY VIOLATES THE RIGHT TO COLLECTIVE ACTION UNDER THE NLRA. 14

 

D.    IN THE ALTERNATIVE, PLAINTIFF REQUESTS LEAVE TO AMEND. 16

 

V.              CONCLUSION.. 17

 


TABLE OF AUTHORITIES

 

Cases

American Airlines v. County of San Mateo (1996) 12 Cal. 4th 1110, 1118........................................ 4

Anderson v. Metal Clad Insulation Corp. (1999) 72 Cal. App 4th 284, 289....................................... 4

Balcorta v. Twentieth Century Fox (9th Cir. 2000) 208 F.3d 1102, 1112........................................ 11

Balog v. LRJV, Inc. (1988) 204 Cal.App.3d 1295, 1302................................................ 7, 10, 14, 16

City of Moorpark v. Sup. Crt. (1998) 13 Cal.4th 1143.................................................................... 10

Contract Services v. Bradshaw, Labor Commissioner (1995) 62 F.3d 294-298................................. 9

Daly v. Exxon 55 Cal. App 4th 39, 43- 44........................................................................................ 3

Dillingham Construction v. County of Sonoma (9th Cir.) 190 F.3d 1034, 1041................................... 8

Evans v. Southern Pacific (1989) 213 Cal. App.3d 1378, 1382................................................... 5, 10

Fort Halifax v. Coyne (1987) 482 US 1, 21....................................................................................... 7

Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1090.................................................................................... 8

Gould v. Maryland Sound (1995) 31 Cal. App 4th 1137, 1148-1149................................................ 3

Handicabs, Inc. v. NLRB (8th Cir. 1996) 95 F.3d. 681.................................................................... 15

Hernandez v. Atlantic Finance Co. (1980) 105 Cal.App.3d 65.......................................................... 4

Hobson v. Raychem Corp.  (1999) 73 Cal. App. 4th 614, 625.......................................................... 5

Huynh v. Ingersoll-Rand (1993) 16 Cal. App. 4th 825, 831............................................................... 4

Intermodal v. Burlington Northern (1999) 73 Cal.App.4th 918, 922, 925, 929............................. 9, 14

Kinder-Care (1990) 299 NLRB 1171............................................................................................. 15

Kirby v. Albert (1992) 11 Cal. App. 4th 1059, 1069, fn. 7................................................................ 5

Metropolitan Life v. Massachusetts (1995) 471 US 724.................................................................... 8

Meyers Ind. (1986) 281 NLRB 882................................................................................................ 13

NBC v. Bradshaw (Labor Commissioner of the State of California) (1995) 70 F.3d 69...................... 9

Page v. Superior Court (1995) 31 Cal. App 4th 1206, 1211-1212.................................................... 4

San Diego Bldg. Trades Council, Millman’s Union, Local 2020 v. Garmon (1959) 359 U.S. 236; 79 S.Ct. 773 6

Sears, Roebuck & Co. v. San Diego County District Council of Carpenters (1977) 436 U.S. 180, 98 S.Ct. 1745, at 1754........................................................................................................................................... 5, 6, 13

Smith v. National Steel (1997) 125 F.3d 751 (9th. Cir.)................................................................... 10

Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 164 Cal.Rptr. 839........................................................... 8

Vaca v. Sipes (1967) 386 US 171.................................................................................................... 8

Wrighten v. Metropolitan Hospital (9th Cir. 1984) 726 F. 2d 1346.................................................... 4

Statutes

29 U.S.C. § 160............................................................................................................................... 13

29 USCS § 157.............................................................................................................................. 12

29 USCS § 158.............................................................................................................................. 12

ADEA. 42 USC § 2000e-7;  29 USC sec 633(b)........................................................................... 10

Cal. Bus. & Prof. Code § 17200  et. seq............................................................................... 3, 14, 17

Cal. Bus. & Prof. Code § 17204....................................................................................................... 4

Cal. Civil Code Secs. 51-52............................................................................................................ 10

Cal. Gov’t Code § 12940 (h)............................................................................................................ 4

Cal. Gov’t. Code Secs. 12920, 12926.1 and 12948........................................................................ 10

Cal. Labor Code § 201.5................................................................................................................ 11

Cal. Labor Code § 219................................................................................................................... 11

Cal. Labor Code § 232..................................................................................................... 2, 3, 11, 12

Cal. Labor Code § 3700................................................................................................................... 9

Cal. Labor Code § 6300 et seq......................................................................................................... 9

Cal. Labor Code §§ 206, 216 and 232........................................................................................... 11

CCP § 437 c(o) (2).......................................................................................................................... 4

LMRA § 301.................................................................................................................................. 11

 

 

 

 

 

 

 


I.                   INTRODUCTION

Defendants’ motion presents the rather unusual scenario of an employer arguing that it’s conduct potentially violates the National Labor Relations Act (“NLRA”) and therefore it is exempt from California law. This is the sole basis for Defendants’ motion.

This argument fails for two reasons:

1) Even if facts underlying Mr. Davis’ claims could arguably be alleged as a violation of the rights provided by the NLRA; enforcement of State regulation independent of the NLRA falls within judicially mandated exceptions to NLRA Preemption that allows states to maintain minimal labor standards and legislate in matters of local interest that do not interfere with the policies of the NLRA.  The application of these exceptions is particularly appropriate here where the state protections do not interfere with the purposes and rules of the NLRA.

2) In fact, no party to this action alleges that Mr. Davis’s termination was motivated by retaliation for union activities or that ABM’s no –discussion policy infringes on the right to concerted action. The allegation and proof of a violation of the right to concerted employee action is a necessary predicate for jurisdiction by the NLRB. Here, the only issues tendered for this court’s jurisdiction are Defendants’ violation of state laws and public policies that are completely independent of the NLRA protection of the right to concerted action. In short, factually similar claims are not enough.  As a threshold issue, there can be no preemption if the rights plaintiff sues under are not within the NLRB’s jurisdiction. [1]

            Defendants’ motion is essentially one for judgment on the pleadings yet it is presented under the more complex procedures of a motion for summary judgment.  Mort unfortunately, Defendants’ do not develop the law in this fairly complex area. Instead ABM relies on one half of the holding in Garmon and ignores the rest of the 43 years of jurisprudence that has developed in the preemption area. Defendants’ rely primarily on NLRB opinions that are of little utility because they: 1) do not address preemption and, 2) are distinguishable because, there, the violation of the rights protected by NLRA sec. 7 were clearly alleged.

 

ii.        FACTUAL BACKGROUND AND SUMMARY OF CLAIMS

Mr. Davis was employed as a custodian in downtown San Francisco for approximately 20 years.  See Decl. of Zelbert Davis at par. 3.  For the vast bulk of that time, Mr. Davis was a valued employee of the Chevron Real Estate Management Co. (“CREMCO”).  Davis Decl. at par. 4.  However, in December 1999, Defendants ABM Janitorial and, indirectly, its parent company, ABM Industries, (collectively referred to as “ABM”) won the custodial contract for 575 Market Street where Mr. Davis worked. Although discovery is not yet complete,. there is substantial evidence these nominally independent corporations are inextricably interrelated.  See for example, Ex. C to Decl. of R. Vaznaugh.  It is undisputed that on or about December 10, 1999, Mr. Davis was employed by ABM.

            Mr. Davis’ wages were reduced from $14.03 to $10.07 per hour. Davis Decl. at par. 5-6. Mr. Davis believed that he was entitled by law to keep his prior wage rate and, seeking relief, he disclosed his wages and discussed them with the property manager at 575 Market Street and asked for help returning to his prior wage rate.  See Decl. of Zelbert Davis at par. 7.  It is undisputed that in retaliation for this conversation, ABM terminated him. See Plaintiff’s Separate Statement at No.16-21 and Plaintiff’s Statement of Additional Facts at No. 29.  Cal. Labor Code § 232 provides as follows:

 

            No employer shall do any of the following:

            (a) Require, as a condition of employment, that any employee refrain

from disclosing the amount of his or her wages.

            (b) Require any employee to sign a waiver or other document which

            purports to deny the employee the right to disclose the amount of his

            or her wages.

            (c) Discharge, formally discipline, or otherwise discriminate against,

            for job advancement, an employee who discloses the amount of his

or her wages.

Prior to his termination ABM told Mr. Davis’ that they didn’t have to give him a raise if they didn’t want to and that his conversation with Property Manager Michael Murphy was forbidden by ABM’s no discussion policy. See Plaintiff’s Separate Statement at No.16-21 and Plaintiff’s Statement of Additional Facts at No. 29.  At least 3,000 - 4,000 janitorial employees are required to comply with ABM’s no discussion policy.  Plaintiff’s Separate Statement at No.19, Plaintiff’s Statement of Additional Facts at No. 30.

Thus, Mr. Davis’ complaint also alleges a mass claim that Defendants’ no –discussion policy is an unfair business practice in so much as it precludes employees from engaging in communications protected at law such as a disclosure of wages pursuant to Cal. Labor Code § 232 or in so much as Defendants have disciplined employees for such protected communications.  See Complaint, second cause of action, Cal. Bus. & Prof. Code § 17200  et. seq. An employer may not terminate or otherwise discriminate against an employer for exercising a right provided by California law. See e.g., Labor Code § 232.

Plaintiff also challenges ABM’s no-discussion policy because it infringes on the janitors’ individual rights to complain about or discuss their concerns regarding potential discrimination or health and safety concerns. See Complaint, second cause of action.

An employer may not terminate or otherwise discriminate against an employee because of opposition to unsafe work conditions or practices.  Daly v. Exxon (1997) 55 Cal. App 4th 39, 43- 44.  Similarly, it is illegal to discriminate against an employee because  of good faith complaints that she is being deprived of wages in violation of law.  See Gould v. Maryland Sound (1995) 31 Cal. App 4th 1137, 1148-1149.  It is unlawful for any employer or person to retaliate against an employee for opposing, in good faith, perceived discrimination.  See Cal. Gov’t Code § 12940 (h);  Page v. Superior Court (1995) 31 Cal. App 4th 1206, 1211-1212.  Though most cases deal with internal protests, it is also true that an employee has a right to voice reasonable and good faith opposition to perceived illegality to third persons without fear of reprisal.  See e.g. Wrighten v. Metropolitan Hospital (9th Cir. 1984) 726 F. 2d 1346 [nurse’s press conference protesting poor care of black patients is protected opposition under title VII].

Acting as a private attorney general seeking injunctive relief, Mr. Davis rightfully brings his unfair business practices claim on behalf of his former co-workers and members of the general public.  See Cal. Bus. & Prof. Code § 17204; Hernandez v. Atlantic Finance Co. (1980) 105 Cal.App.3d 65.

 

III.       Summary Judgment

Defendants’ motion for summary judgment relies solely on alleged lack of subject matter jurisdiction.  In order to show a complete defense, Defendant must present undisputed evidence of each essential element of the defense upon which it bears the burden of proof.  Anderson v. Metal Clad Insulation Corp. (1999) 72 Cal. App. 4th 284, 289.  “[L]ack of substantial evidence on any element bars relief even if the Plaintiff failed to introduce a scintilla of evidence challenging that element.”  Huynh v. Ingersoll-Rand (1993) 16 Cal. App. 4th 825, 831.  Plaintiff has no evidentiary burden until the defendant demonstrates a complete defense.  C.C.P. § 437 c(o) (2). 

            A motion for summary judgment may be treated as a motion for judgment on pleadings.  When a motion for summary judgment is used to test whether the complaint states a cause of action, the court must accept the allegations of the complaint as true.  It cannot consider facts alleged in opposing declarations.  American Airlines v. County of San Mateo (1996) 12 Cal. 4th 1110, 1118.  If the court concludes the complaint is insufficient as a matter of law, the court may elect to treat the hearing as a motion for judgment on the pleadings and grant the opposing party a opportunity to file an amended complaint to correct any defects.  Hobson v. Raychem Corp.  (1999) 73 Cal. App. 4th 614, 625.  A motion for leave to amend may be made at the hearing or indeed, any time before judgment.  Kirby v. Albert (1992) 11 Cal. App. 4th 1059, 1069, fn. 7.

 

In determining a question of preemption, "[t]he crucial inquiry is whether the exercise of the state authority 'frustrate[s] effective implementation of [an] Act's processes.' ‘[I]nflexible application of the [preemption] doctrine is to be avoided, especially where the State has a substantial interest in regulation of the conduct at issue and the State's interest is one that does not threaten undue interference with the federal regulatory scheme.’ Courts are reluctant to infer preemption and it is the burden of the party claiming that Congress intended to preempt state law to prove it.’ It will not be presumed that a federal statute was  intended to supersede the exercise of the power of the state unless there is a clear manifestation of intention to do so. The exercise of federal supremacy is not lightly to be presumed.

Evans v. Southern Pacific (1989) 213 Cal. App.3d 1378, 1382 (citations omitted) [Reversing summary judgment based on Railway Labor Act preemption of FEHA claim.]

 

IV.       ThIS Court Has Subject Matter Jurisdiction.

A.     The NLRA, NLRB, and Preemption.

In 1935 Congress enacted the National Labor Relations Act (NLRA), a culmination of piecemeal legislation developing rights of workers.  The NLRA was an attempt to level the playing field between workers and their employers:

 

Congress expressly recognized that collective organization of segments of the labor force into bargaining units capable of exercising economic power comparable to that possessed by employers may produce benefits for the entire economy…The new federal statute protected the collective bargaining activities of employees and their representatives and created a regulatory scheme to be administered by an independent agency which would develop experience and expertise in the labor relations area.

Sears, Roebuck & Co. v. San Diego County District Council of Carpenters (1977) 436 U.S. 180, 98 S.Ct. 1745, at 1754.

The key to the results envisioned by this policy was that workers had a right to unite. It was Congress’ intent that States not interfere with the Federalized system of protecting the collective bargaining relationship and regulating labor disputes between employers and labor unions. San Diego Bldg. Trades Council, Millman’s Union, Local 2020 v. Garmon (1959) 359 U.S. 236; 79 S.Ct. 773.  Garmon held that an employer’s action for an injunction to restrain picketing and for damages was preempted because the state would restrain activity that was arguably protected by the NLRA as concerted activity. Id. 244-245.

B.     THE LIMITS ON PREEMPTION.

However, Garmon also stated a critical and broad limit on preemption that Defendant ABM’s brief completely ignores. There is no preemption where a matter is of merely peripheral concern to the NLRA or where the regulated conduct touches interests so deeply rooted in local feeling and responsibility that in the absence of compelling congressional direction, the Court cannot infer that Congress had deprived the States the power to act.  Garmon, supra, at 243-244.

The test is whether the violations in question are ‘actually or arguably” protected under §7, or actually or arguably prohibited under §8, such that state regulation would create a “realistic risk of interference” with the NLRB's primary jurisdiction. I.e. a potential conflict between a state law claim and Federal labor law. Sears, supra 436 U.S. 180, 98 S.Ct. 1745, 1757 –1758 [holding that Sears’ action for trespass against picketers at its department store was not preempted because it fell within the exception to NLRA Preemption.] [2]

Therefore the arguably prohibited branch of NLRA sec. 7, 8. preemption only comes into play when the “controversy is identical to that which could have been, but was not, presented to the NLRB.” Id. at 197.  The controversy that Sears might have presented to the NLRB would have been whether the picketing had union recognition or work-reassignment objective, a complex issue.  Id. at 198.  Conversely, the state action only challenged the location of the picket.  Id.  Whether the picketing had an objective proscribed by Federal law was irrelevant to the propriety of state court jurisdiction.  Id.[3]

Thus, whether a suit is of “local concern” and whether a claim arises from the NLRA’s right concerted to action are important factors in the ultimate determination of whether congressional intent to preempt can be inferred. The courts do not lightly infer preemption, otherwise, the NLRA would quickly swallow up virtually all state regulation of the workplace and that would be contrary to Congressional intent:

 

Due regard for the presuppositions of our embracing federal system, including the principle of diffusion of power not as a matter of doctrinaire localism but as a promoter of democracy, has required us not to find withdrawal from the States of power to regulate where the activity regulated was a merely peripheral concern of the Labor Management Relations Act. [Citation omitted.] Or, where the regulated conduct touched interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act.

Balog v. LRJV, Inc. (1988) 204 Cal.App.3d 1295, 1302 (citing Garmon, supra, 359 U.S. at 243-244.)

The establishment of labor standards falls within the traditional police power of the state and preemption should not be lightly inferred.  Fort Halifax v. Coyne (1987) 482 US 1, 21. Both employers and employees come to the bargaining table with rights under state law that form a backdrop of their negotiations. Id.

 

1.  THE BREADTH OF PERMISSIBLE STATE  REGULATION IS EXTREMELY BROAD.

Thus, whether or not the conduct is arguably prohibited by the NLRA, there is no preemption if the regulated conduct is of peripheral concern to the act or touches interests deeply rooted in local feeling and responsibility.  There are a plethora of Federal and state cases that hold that this exception is broad.

In Vaca v. Sipes (1967) 386 US 171, the Supreme Court further developed the scope of matters that are excluded from preemption even though related to labor relations.  Vaca held that cases involving alleged breaches of a union’s duty of fair representation are not preempted by the NLRA even though the National Labor Relations Board (hereafter “NLRB”) had declared a breach of duty of fair representation would be treated as an unfair labor practice. Id. at 183.The risk that the Board might be unwilling or unable to remedy even a small group of fair representation cases would frustrate the basic purposes underlying the duty of fair representation and thus did not allow the assumption that Congress in passing the NLRA § 8(b) intended to oust the courts of Jurisdiction in this area. Id.  In Metropolitan Life v. Massachusetts (1995) 471 US 724, the Supreme Court held that state laws requiring that employee benefits insurers provide mental health coverage with health insurance policies were not preempted under the NLRA. State laws that impose minimum requirements for contract terms did not limit protected rights of self organization or collective bargaining. Id.

In Dillingham Construction v. County of Sonoma (9th Cir.) 190 F.3d 1034, 1041, the Court held that an apprentice prevailing wage law is not preempted by the NLRA because it does not effect the right to bargain collectively, but rather, establishes minimum labor standards that treat all workers equally and neither encourage nor discourage the collective bargaining process.

State claims for wrongful termination in violation of public policy based on termination of employees for complaining about health and safety violations are not preempted. [4] Intermodal v. Burlington Northern (1999) 73 Cal.App.4th 918, 922, 925, 929.  Claims for violations of Cal-OSHA (Cal. Labor Code § 6300 et seq.) also remain within the jurisdiction of the Superior Court.  Id.  Significantly, 200 employees jointly alleging the violation of fundamental public policies do not lose their right to proceed in state court. Id. at  927. [rejecting argument that mass claim creates “concerted” action and preemption.]

A California state wage order requiring overtime pay is not preempted.  NBC v. Bradshaw (Labor Commissioner of the State of California) (1995) 70 F.3d 69.  No incompatibility exists between federal collective bargaining law and state laws that impose minimum substantive labor standards so long as the purpose of the state legislation is not incompatible with Federal law.   Id.

The California Labor Commissioner can require unionized employers to maintain worker’s compensation coverage as required by Cal. Labor Code § 3700. Contract Services v. Bradshaw, Labor Commissioner (9th Cir. 1995) 62 F.3d 294, 298. The state was not seeking to regulate any conduct subject to the regulatory jurisdiction of the NLRB, but rather was requiring minimum funding requirements for worker’s compensation.  Id. at 298. No NLRA preemption was implicated because the employer trust funds were free to provide worker’s compensation benefits above to those mandated by Cal. Labor Code § 3700. Id.

In a mixed motive case – where a termination is alleged to be partly motivated by anti-union animus and partly in violation of state public policies -- there is no preemption:

 

Here, defendants should not be able to escape the jurisdiction of California courts simply because, in addition to allegedly undertaking violations of health and safety regulations which are of compelling local importance and interest, they had the good fortune to also undertake the commission of NLRB-defined unfair labor practices.

Furthermore, retaining jurisdiction over Balog's wrongful termination action will not require the state court to exercise any power which might interfere with the policy behind preemption, i.e., the need to obtain uniform interpretation and application of federal labor law. The only issue related to the unfair labor practices-related reason for Balog's discharge which the trier of fact need reach is whether or not that reason was the only cause for Balog's discharge. If the trier of fact determines that such was the sole reason, then the action is indeed preempted, and the court cannot proceed any further: it cannot award Balog damages or fashion any other remedy. If, however, it determines that Balog was discharged for the other illegal reasons alleged, which are not related to unfair labor practices under the NLRA, then the action is not preempted, and defendants will be liable to Balog for damages caused by a wrongful discharge which was motivated in whole or in part by such other illegal reasons.

Balog, supra, 204 Cal.App.3d at 1308-1309.

 

2. MR. DAVIS’ CLAIMS ARE NOT PREEMPTED BECAUSE THEY RELY SOLELY ON STATE PUBLIC POLICY PROVIDED BY MINIMUM AND FUNDAMENTAL STATE LABOR REGULATION.   

Balog and Intermodal control here and unequivocally show that a wrongful termination public policy claim is not preempted so long it is based on fundamental public policies of the state of California.

Similarly Anti-Discrimination laws such as the FEHA are not preempted by employment relations statutes such as the Railway Labor Act that do not purport to cover discrimination claims. Evans v. Southern Pacific, supra, 213 Cal. App.3d at 1385-87. Furthermore, no preemption exists when the potential conflict is with a Federal statute. Smith v. National Steel (9th Cir. 1997) 125 F.3d 751.  Title VII of the Civil Rights Act of 1964 and Age Discrimination in Employment Act expressly preserve state equal employment opportunity laws as long as they do not require or permit an act that violates Title VII or the ADEA. 42 USC § 2000e-7;  29 USC sec 633(b).

Anti-Discrimination laws such as the FEHA or Unruh Act provide basic protections against discrimination to employees and members of the public. The Legislature has explicitly ruled that these statutes are critical regulations of local interest. Cal. Gov’t. Code Secs. 12920, 12926.1 and 12948; Cal. Civil Code Secs. 51-52.  Anti-discrimination laws are sufficiently strong public policies to ground a wrongful termination claim. See City of Moorpark v. Sup. Crt. (1998) 13 Cal.4th 1143 (FEHA disability discrimination).

ABM’s motion does not dispute that Cal. Labor Code § 232 is a public policy of the state that provides basic labor rights within the state’s police powers.  Cal. Labor Code § 232 unquestionably inures to the benefit of the public at large and is part of the most fundamental article of non-waivable rights in the Cal. Labor Code. The entire chapter that contains Cal. Labor Code §§ 206, 216 and 232 is non-negotiable pursuant to Cal. Labor Code § 219.  Balcorta v. Twentieth Century Fox (9th Cir. 2000) 208 F.3d 1102, 1112.  Indeed, to emphasize the importance of these rights, Cal. Labor Code § 232 specifically prohibits an employer from deterring the exercise of rights.

Though Balcorta addressed a slightly different type of NLRA preemption, the holding is instructive here. Therein, the plaintiff alleged that defendants violated  Cal. Labor Code § 201.5 when they failed to pay him within twenty-four hours of his discharge.  Fox argued that there was no way to determine whether Balcorta was in fact discharged without looking to the Collective Bargaining Agreement and thus claims were preempted. The court held that rights provided by the chapter of the Labor Code that includes § 201.5 are not subject to Labor Management Relations Act (“LMRA”) § 301 preemption. Balcorta, supra, 208 F.3d at 1112.    Moreover, LMRA § 301 does not permit parties to waive, in a collective bargaining agreement, non-negotiable state rights.

 

Were we to extend the Section 301 complete preemption doctrine to

allow for preemption by virtue of such a waiver, “the parties would

be able to immunize themselves from suit under state-laws of general

applicability by simply including their unlawful behavior in a labor

contract.”  Id.; See also, Miller v. AT&T Network Sys., 850 F.2d 543,

546 (9th Cir. 1988); Lingle, 486 U.S. at 412, 108  S.Ct. 1877

(noting that such a rule would intrude on the traditional power of states

to establish minimum labor standards).  For this reason, we have held

that such a rule would clearly exceed [ ] the scope of Section 301

preemption intended by Congress.

            Id. at 1111.

           

            Therefore, in so much as Plaintiff’s claims rely on fundamental state public policies (such as Cal. Labor Code § 232 and state anti-discrimination and health and safety laws) that do not have as their purpose the protection of concerted action, there is no need or logic to infer preemption that would deprive the plaintiff of a remedy.  Plaintiff respectfully requests the Defendants’ motion be overruled in its entirety.

C.     MR. DAVIS’S CLAIMS DO NOT ALLEGE VIOLATIONS OF THE RIGHT TO CONCERTED ACTION.

A claim with similar facts to Mr. Davis’s might have also alleged a violation of rights protected by the NLRB but no such allegation is made in this action by any party.  The Congressional intent behind the NLRA was that federal protection be afforded workers engaged in activity for common cause. When the freedom of workers to join together is violated, it becomes an unfair labor practice prohibited by §8 of the NLRA.

 

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities . . ..

29 USCS § 157.  Rights of employees as to organization, collective bargaining, etc. (Wests’ 2001).

 

(a)    Unfair labor practices by employer. It shall be an unfair labor practice for an employer—
   (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 [29 USCS § 157]; . . .
   (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: Provided, That nothing in this Act, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization . . .

29 USCS § 158.  Unfair labor practices (Wests’ 2001)

 

1.      DEFENDANTS HAVE NOT PRESENTED UNDISPUTED FACTS THAT THEIR MOTIVE IN FIRING MR. DAVIS VIOLATED THE RIGHT TO COLLECTIVE ACTION UNDER THE NLRA.

In the area of prohibited conduct, the purpose and jurisdiction of the NLRB is limited to acts that violate the right to act in concert. See generally, Meyers Ind. (1986) 281 NLRB 882.[5] What is missing from the instant case is any allegation by the Plaintiff that Defendants’ acts violate the right to act in concert.  On the contrary, Plaintiff’s claims are premised solely on state laws protecting the right to disclose wages and furthering the public policy of a safe and healthy workplace that is free of discrimination. See Plaintiff’s Statement of Additional Facts at No. 25-28. Similarly, Defendants do not state undisputed facts that the termination or their no-discussion policy violate the right to act in concert.[6]

As we have seen, even state regulation of picketing is not preempted where the regulation is neutral and not aimed specifically at concerted activity. After the Supreme Court remanded Sears, supra, 436 U.S. at 208, the California Supreme Court emphasized that the Union’s picketing activities could not be protected under the NLRA because the Union expressly disclaimed any intention to contend that its picketing was protected conduct under Federal labor law. Sears v. San Diego (1979) 25 Cal.3d 317, 322. 

Defendants challenge the jurisdiction of this court by means of summary judgment and thus must demonstrate undisputed facts proving lack of jurisdiction.  Here they cannot because, Mr. Davis’ wrongful termination cause of action does not allege that he was terminated because he engaged in concerted activity.  See Plaintiff’s Statement of Additional Facts at No. 25-28.  Nor has the employer presented any undisputed facts that Mr. Davis was terminated for engaging in concerted activities in violation of the act. Even if it did, the cause of action would not be preempted because the state court can adjudicate the termination as motivated by his disclosure of wages, irrespective of a potential motive that violates the NLRA. See Balog, supra, 204 Cal.App.3d at 1308-1309.

 

2.      THE VIOLATIONS ALLEGED IN MR. DAVIS’ BUS. & PROF. SEC. 17200 CLAIM ARE NOT EVEN ARGUABLY PROHIBITED BECAUSE THERE IS NO UNDISPUTED FACT THAT THE NO-DISCUSSION POLICY VIOLATES THE RIGHT TO COLLECTIVE ACTION UNDER THE NLRA.

Similarly, the employer cannot defense Mr. Davis’ second cause of action because Mr. Davis’ complaint does not allege the no-discussion policy violates any right to concerted action or other union activity.  See Plaintiff’s Statement of Additional Facts at Nos. 27-28. Nor has the employer alleged or presented any undisputed fact that its policy violates the right to concerted action.

Mr. Davis has a right to proceed on his mass claim to protect the rights of ABM janitors to act individually in a manner protected by State law.  The mass nature of the claim does not create concerted action. See Intermodal, supra, 73 Cal.App.4th 927. Indeed, Cal. Bus. & Prof. Code Sec. 17200 et. seq. is purely a creature of State law –there is no evidence or authority that the NLRB can take jurisdiction of  such a claim.

The fact that ABM may have drafted its no discussion policy in a manner that infringes on both state and NLRA law is irrelevant. Plaintiff does not, in this law suit, challenge that portion of the rule that violates the NLRA. Simply because the rule is so broadly stated as to make it susceptible to proof of violation of both California statutes (unrelated to concerted activity) and the NLRA does not create any conflict.  Rather, it creates two separate violations. The violation of state law protecting the individual right to disclose wages, etc. . . is addressed in state court, the violation of the right to concerted action, if alleged, is addressed at the NLRB or in Federal court.

            Even Defendants’ citation to Kinder-Care (1990) 299 NLRB 1171, highlights that Kinder-Care’s policy violated the NLRA because it “restrains the employees Section 7 rights to engage in concerted activities. . .”  The necessity of allegation and proof of concerted activity is highlighted by the holding of the first section of Kinder-Care, that follows shortly after Defendants’ quote.

 

The Respondent's rule that employees must first take any work-related complaint to the Respondent tends to inhibit employees from banding together by requiring that, in every such case, an employee must approach the Respondent before invoking the assistance of a union and perhaps even before discussing the issue with other employees. Faced with such a requirement, some employees may never invoke the right to act in concert with other employees or to seek the assistance of a union, because they are unwilling first to run the risk of confronting the Respondent on an individual basis.   Accordingly, we conclude that this portion of the Respondent's "parent communication" rule also violates Section 8(a)(1).

                                                            *  *   *

The complaint alleged that the Respondent unlawfully discharged employee Rebekah Munana on June 6, 1986, because of her union or protected concerted activities. 

 

*  *  *

Under all the above circumstances, we find that the General Counsel has met his burden under Wright Line of establishing that Munana was selected for layoff because of her union activities and that the Respondent has failed to show that Munana would have been laid off even in the absence of her union activities. n32 Accordingly, we find that the Respondent violated Section 8(a)(3) and (1) in laying off Munana on June 6. 

Kinder-Care Learning Centers (1990) 299 NLRB 1171, 1172, 1175 (emphasis added).

Similarly, Defendants cite Handicabs, Inc. v. NLRB (8th Cir. 1996) 95 F.3d. 681 for the proposition that prohibiting employees from discussing working conditions with clients is a §8 violation. What Defendants do not mention is that the decision was made on the grounds of interference with employees’ rights to “self organization, to form, join, or assist labor organizations…and…to engage in other concerted activities for the purpose of collective bargaining…” Id. at 683. 

In fact Handicabs emphasizes the point that the Defendants no-discussion policy “blatantly tramples its employees rights . . .” and was too broad. Id. at 685. But, the policy could be drafted in a neutral manner that did not single out activities protected under the NLRA. Id. Similarly, ABM could have drafted its no-discussion policy in a manner that does not trample the NLRA. However what is relevant here is that ABM could also have drafted a policy that does not offend fundamental state public policies. This is the only issue before this Court. It is an issue that can be decided irrespective of whether or not the policy might also violate the NLRA and thus no intent to preempt state law can be inferred as a matter of law.

Like Kinder-Care, Handicabs does not help Defendants because in those cases the employer’s actions were both alleged and proven to be violations of the NLRA’s protections of concerted activity. Id.  Additionally, neither case deals with the issue of preemption at all and thus, like ABM, ignores the broad exception for local regulation discussed above.  The other NLRB cases cited by Defendants fail to support preemption for the same reasons.  

 

D. IN THE ALTERNATIVE, PLAINTIFF REQUESTS LEAVE TO AMEND.

Plaintiff’s second cause of action is phrased broadly. Plaintiff does not allege a violation of the right to concerted action. See Plaintiff’s Statement of Additional Facts at Nos. 27-28. Nevertheless, this Court retains jurisdiction without amendment and simply need not rule as to any violation of the right to concerted action. See Balog, supra, 204 Cal.App.3d at 1308-1309.

 However if the court grants judgment on the pleadings, Plaintiff respectfully requests leave to amend.  Finally, as a drastic and much undesired alternative, plaintiff requests leave to amend his second cause of action to allege that Defendants policy violates Federal discrimination and health and safety statutes.

 

V.        CONCLUSION

Balog is controlling here – as it properly focuses on whether the underlying claim is based on protecting the right to unionization – if not then Congressional intent to divest the state of its police powers cannot be inferred.  Here, there is no such evidence.

It would be interesting if Defendants’ contented the no-discussion policy violated the NLRA rights of its employees and that Mr. Davis was fired in violation of the NLRA. But even that admission would not oust this Court of jurisdiction.  Mr. Davis’s claims are grounded solely on State public policies that provide individuals with the right to disclose wages, work in healthy environments and to be free from discrimination. These are matters of local interest that are peripheral to the objection the NLRA’s primary objective of protecting the right to unionization and collective action. Furthermore in so much as ABM claims its conduct may be arguably prohibited by the NLRA, and also prohibited by state law, there is little risk of interference with national policy. Finally, if there ever was a possibility of Mr. Davis bringing a claim to the NLRB there is no chance of that now because of the NLRB’s short statute of limitations and the probable lack of NLRB jurisdiction over a Cal. Bus & Prof. Code § 17200 claim.

Defendants’ have the burden of demonstrating preemption.  Considering the above factors, ABM simply cannot meet its burden of demonstrating that Congress intended the preemption of the California laws that Mr. Davis claims are grounded on. These rights are secured by minimum and fundamental state regulation that do not interfere with the purposes of the NLRA. As such Congressional intent to preempt cannot be inferred.

///

///

///

///

 

In a case with two causes of action and fairly straight-forward facts, Defendants’ have now tried twice to oust this Court of jurisdiction.  For the reasons stated above, Plaintiff respectfully requests that the motion be overruled in its entirety. 

 

Date: December 11, 2002

 

 

 

 

Richard J. Vaznaugh

 



[1] Defendants’ previously removed this case to Federal Court on the basis that Mr. Davis’s complaint stated a claim based on a Collective Bargaining Agreement. That effort failed and the matter was remanded because, whether he could have or not, Mr. Davis did not allege a claim that required interpretation of the CBA.  See Order on Motion for Remand, attached to Plaintiff’s Request for Judicial Notice filed herewith.  Similarly, here Mr. Davis does not allege a violation of the rights protected by the NLRA sec. 7 or 8.

[2] Garmon addressed the arguably protected branch of the preemption doctrine.  Here, ABM obliquely argues the converse, that preemption exists because, in addition to any state law prohibitions ABM’s conduct may also be prohibited by the NLRA.  Obviously, the arguably protected scenario has much greater potential for interference with Federal labor policy than Defendants’ also prohibited scenario.

[3] In addition, the primary jurisdiction rationale justifies preemption only when “an aggrieved party has a reasonable opportunity to invoke the Board’s Jurisdiction himself or else to induce his adversary to do so.” Sears, at 201. 

 

[4] The California tort for wrongful termination in violation of public policy is a specific creation of state law that began its modern evolution with Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 164 Cal.Rptr. 839. An employee may maintain a common law tort cause of action for wrongful termination in violation of public policy if the employee is terminated for performing an act that public policy would encourage. Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1090, 4 Cal.Rptr.2d 874, 878. The tort lies when an employee is terminated for refusing to violate a statute, performing a statutory obligation, exercising a statutory right or privilege, or reporting an alleged violation of a statute of public importance. Id. at 1090.

[5] An individual employee who complains to his employer without first involving other employees may be found not to have engaged in concerted activity, and thus may lose the protection of the Act. Meyers Ind. (1986) 281 NLRB 882.

[6] Even if Mr. Davis might have brought a Unfair Labor Practice claim – the statute of limitations is six months, 29 U.S.C. § 160, and passed long before Defendants claimed preemption for the first time in this motion.  Therefore, ABM seeks to totally deprive Mr. Davis of a remedy. The requested preemption would contravene the public policy of California with no chance of a Federal remedy.