Windfield v. Groen Div., Dover Corp.

• Citation: 890 F.2d 764
• Decision Date: 19 December 1989
• Docket Number: No. 88-4830,88-4830
• Parties: 133 L.R.R.M. (BNA) 2073, 58 USLW 2416, 113 Lab.Cas. P 11,705, 4 Indiv.Empl.Rts.Cas. 1875 Leroy WINDFIELD, Plaintiff-Appellant, v. GROEN DIVISION, DOVER CORPORATION, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 764

890 F.2d 764

133 L.R.R.M. (BNA) 2073, 58 USLW 2416,

113 Lab.Cas. P 11,705,

4 Indiv.Empl.Rts.Cas. 1875

Leroy WINDFIELD, Plaintiff-Appellant, v. GROEN DIVISION, DOVER CORPORATION, Defendant-Appellee.

No. 88-4830.

United States Court of Appeals Fifth Circuit.

Dec. 19, 1989.

Walter Kamiat, David Silberman, Laurence Gold, Washington, D.C., Cooper, Mitch, Crawford, Kuykendall & Whatly, Jay Smith, Birmingham, Ala., Roger K. Doolittle, Jackson, Miss., Carl Frankel, Five Gateway Center, Pittsburgh, Pa., for plaintiff-appellant.

R. Pepper Crutcher, Jr., Kenneth E. Milam, Jackson, Miss., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before GEE and JONES, Circuit Judges, and HUNTER, ¹ District Judge.

EDITH H. JONES, Circuit Judge:

Leroy Windfield, appellant, sued his former employer, Groen Division, Dover Corporation ("Groen") for breach of contract, breach of implied contract, promissory estoppel, and fraud in Mississippi state court. Groen removed the suit to federal court on the basis of diversity of citizenship and then moved to dismiss because Windfield's state law claims were allegedly preempted by the unfair labor practice provisions of the National Labor Relations Act, 29 U.S.C. Secs. 158(a)(1), 159(c) ("NLRA"). The court held that the NLRB had exclusive jurisdiction over Windfield's claims and granted Groen's motion to dismiss the suit. ² Windfield appeals. We reverse.

I.

Because the appeal arises from a dismissal for lack of jurisdiction, Fed.R.Civ.P. 12(b)(1), we must accept Windfield's recitations in his pleadings as true. Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir.1981). Windfield was a production employee of Groen from September, 1985 until his discharge on January 7, 1987. In the interim, the United Steel Workers of America embarked on an organizing campaign to represent Groen's employees. Windfield actively participated in the Union's campaign drive. Pursuant to the Union's request, the NLRB scheduled a representation election for October 10, 1986.

The day before the election, Groen distributed documents to its employees, including Windfield, that stated:

GUARANTEE

This is our PERSONAL GUARANTEE that

LeRoy Windfield

will have a job with our Company even though at one time or another for various This GUARANTEE is given to you because of the FALSE RUMOR that you will lose your job if the Union loses the election. As you see by this, your own personal GUARANTEE, this is not true and it is an example of other FALSE STORIES AND TACTICS designed to fool and mislead you.

reasons you may have signed a union card, as long as you perform your work satisfactorily and we are economically able to operate this business successfully and work is available.

The Union CAN NOT GUARANTEE they will not strike or that they can get you more money. THE UNION CAN NOT GUARANTEE WHAT YOUR COMPANY NOW PROVIDES FOR YOU!

This is our WRITTEN GUARANTEE TO YOU--compare it to the UNION SALES TALK and what the union wants to COLLECT FROM YOU.

Date 10/9/89 By Louise O'Sullivan

GROEN DIV./DOVER CORP.

Groen's President, Louise O'Sullivan, allegedly assured Windfield that the "Guarantee" document was official and that her signature rendered the document enforceable. The employees voted against union representation, thirty-nine to thirty-six. About three months after the election, Groen fired Windfield.

Subsequent to Windfield's termination, the Union staff representative Roy E. Brockman filed unfair labor practice charges against Groen. The Union alleged that the Groen "Guarantee" documents "conveyed a promise of enhanced job security designed to frustrate and thwart the union organization effort, in violation of" Sec. 8(a)(1) of the NLRA. Additionally, the Union claimed that Groen had terminated Windfield's employment "because of his membership and activities in behalf of the United Steelworkers of America, a labor organization," in violation of Sec. 8(a)(3). The NLRB refused to issue a complaint on the Union's charges on the ground that "it appears that the evidence is insufficient to warrant further proceedings." The Board's decision was not appealed.

Windfield filed a lawsuit in Mississippi state court on several theories, including breach of express and implied contract, promissory estoppel, and fraud. ³ The question that confronted the district court after removal and us on appeal is whether Windfield's state law claims were preempted by the NLRA.

II. PREEMPTION

Preemption by federal law is a question of law reviewable de novo. See Vincent v. Trend Western Technical Corp., 828 F.2d 563, 565 (9th Cir.1987). Similarly, the district court's conclusion regarding subject matter jurisdiction is reviewed de novo by this court. Scott v. Machinists Automotive Trades D. Lodge, 827 F.2d 589, 591 (9th Cir.1987).

The Supreme Court has several times spoken on the issue of preemption of state law claims by the NLRA. While noting some frustration with Congress's utter lack of guidance on this important issue, ⁴ the Court has struggled to enunciate a governing [w]hen it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by Sec. 7 of the National Labor Relations Act, or constitute an unfair labor practice under Sec. 8, due regard for the federal enactment requires that state jurisdiction must yield.

                theory and to apply it in particular cases.  San Diego Building Trades Council v. Garmon, 359 U.S. at 244, 79 S.Ct. at 779. 5   Garmon recognized that in enacting federal labor legislation through the NLRA, "Congress did not exhaust the full sweep of legislative power...."  359 U.S. at 240, 79 S.Ct. at 777 (quoting Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 480, 75 S.Ct. 480, 488, 99 L.Ed. 546 (1955)).  Nevertheless, the NLRA was enacted because "Congress evidently considered that centralized administration of specially designed procedures was necessary to obtain uniform application of its substantive rules...."  Id. at 242-43, 79 S.Ct. at 778 (quoting Garner v. Teamsters, 346 U.S. 485, 490-91, 74 S.Ct. 161, 166, 98 L.Ed. 228 (1953)).  Garmon designed a general rule of preemption by stating
                

Id. at 244, 79 S.Ct. at 779.

The Garmon preemption rule covering activities that are arguably protected or prohibited by the NLRA is subject to several significant exceptions. See Belknap v. Hale, 463 U.S. 491, 509-10, 103 S.Ct. 3172, 3182-83, 77 L.Ed.2d 798 (1983) (discussing exceptions to Garmon ); see, e.g., Linn v. United Plant Guard Workers, 383 U.S. 53, 63-64, 86 S.Ct. 657, 663-64, 15 L.Ed.2d 582 (1966) (defamation); Sears, Roebuck & Co. v. San Diego County District Council of Carpenters, 436 U.S. 180, 197-98, 98 S.Ct. 1745, 1758, 56 L.Ed.2d 209 (1978) (trespass); Farmer v. United Brotherhood of Carpenters, 430 U.S. 290, 303-04, 97 S.Ct. 1056, 1065-66, 51 L.Ed.2d 338 (1977) (intentional infliction of emotional distress). The Court has permitted exceptions to Garmon preemption when the state court decides issues that do not threaten significant interference with the NLRB's jurisdiction. See Sears, 436 U.S. at 198, 98 S.Ct. at 1758. Moreover, conduct that is a mere "peripheral concern" of federal labor law or that touches "deeply rooted" state interests may be subject to state law although the same activity could arguably be covered by the NLRA. See Garmon, 359 U.S. at 243-44, 79 S.Ct. at 778-79. See also Belknap, 463 U.S. at 509, 103 S.Ct. at 3182. In such cases, the Court has balanced the state's interest in regulating the conduct against the risk of interference with NLRB enforcement actions, Local 926, International Union of Operating Engineers AFL-CIO v. Jones, 460 U.S. 669 at 676, 103 S.Ct. 1453 at 1459, 75 L.Ed.2d 368 (1983), and the risk that the state might punish conduct protected by the NLRA. Sears, Roebuck & Co. v. Carpenters, 436 U.S. at 205, 98 S.Ct. at 1761.

Where, as here, the conduct at issue under state law is arguably prohibited by the NLRA, the Court has refined the analytical framework:

"[t]he critical inquiry, therefore, is not whether the State is enforcing a law relating specifically to labor relations or one of general application but whether the controversy presented to the state court is identical to (as in Garner ) or different from (as in Farmer ) that which could have been, but was not, presented to the Labor Board. For it is only in the former situation that a state court's exercise of jurisdiction necessarily involves a risk of interference with the unfair labor practice jurisdiction of the Board which the arguably prohibited branch of the Garmon doctrine was designed to avoid.

Sears, 436 U.S. at 197-98, 98 S.Ct. at 1757-58; see also Belknap, 463 U.S. at 510-11 Had the Supreme Court issued no more opinions on this subject after Sears, our task would be well-defined. Alas, the law is not so cooperative: A few years later, the impact of Sears was analyzed twice in one Term of Court, with ostensibly differing results. In Jones, a supervisor first filed a complaint with the NLRB "alleging that the Union had 'procured' his discharge" and accordingly coerced his employer in "the selection of its ... bargaining representative" in violation of Secs. 8(b)(1)(A), (B) of the NLRA. See id. at 672-73, 103 S.Ct. at 1456-57. The Board refused to issue a complaint because of insufficient evidence that the Union had caused Jones' discharge. See id. Jones did not utilize the administrative appeals process. Instead, he filed a state law action, alleging that the Union had interfered with his employment contract and caused his discharge. See id. at 682, 103 S.Ct. at 1462.

                103 S.Ct. at 3183.    In weighing the local interest against the risk of interference, Sears considered the possible similarity between the "controversies" that would be decided by the NLRB and state tribunals.  See Sears, 436 U.S. at 196-97, 98 S.Ct. at 1757-58.    The determination of potential interference required a

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