Balog v. Lrjv, Inc.

• Decision Date: 22 August 1988
• Docket Number: No. E004399,E004399
• Citation: 250 Cal.Rptr. 766,203 Cal.App.3d 1343
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 203 Cal.App.3d 1343 203 Cal.App.3d 1343, 204 Cal.App.3d 1295, 119 Lab.Cas. P 56,722 Richard J. BALOG, Plaintiff and Appellant, v. LRJV, Inc., et al., Defendants and Respondents.

Page 766

250 Cal.Rptr. 766

Previously published at 203 Cal.App.3d 1343

203 Cal.App.3d 1343, 204 Cal.App.3d 1295,

119 Lab.Cas. P 56,722

Richard J. BALOG, Plaintiff and Appellant, v. LRJV, Inc., et al., Defendants and Respondents.

No. E004399.

Court of Appeal, Fourth District, Division 2, California.

Aug. 22, 1988.

As Modified on Denial of Rehearing Sept. 20, 1988.

Bruce M. Leyden, Redlands, for plaintiff and appellant

Howard M. Knee, Los Angeles, for defendants and respondents.

OPINION

McDANIEL, Associate Justice.

FACTS

Richard Balog ("Balog") worked for 21 years as a safety valve and angle valve repairperson at the GATX Corporation in Masury, Ohio. When GATX closed its plant, he lost his job. Like many other workers from the Midwest and other depressed areas of the country, he looked for work in California.

Balog was ultimately hired by LRJV and Railguard to work as a supervisor at their Lundeen Railcar Repair Services business in Daggett, California. Lundeen Railcar Repair Services cleaned and repaired railroad cars, particularly those which were being used to transport toxic and hazardous materials.

Less than three months after being hired, Balog was fired from his job as supervisor. He thereafter filed a complaint for damages alleged to have resulted from a retaliatory discharge and from intentional infliction of emotional distress. The suit named Lundeen Corporation, Norman Oley, the vice-president and general manager of the Daggett operation, Earl L. Krebs, the Daggett facility's plant superintendent, and numerous Does. In his complaint, Balog alleged he was told he was being terminated in retaliation for:

(1) his complaints that defendants were not complying with minimum safety standards and his refusal to assign employees to jobs which exposed them to the risks resulting from failure to meet such safety standards; [Paragraph 12(a) of the complaint]

(2) his refusal to cooperate with defendants in their disposition of toxic and hazardous materials as required by law and his requests that they do so; [Paragraph 12(b) of the complaint]

(3) his refusal to falsify accident investigation reports at defendants' requests; [Paragraph 12(c) of the complaint]

(4) his complaints that defendants refused to provide him with required "Car Shopping Instruction" sheets which were intended to inform workers of the nature of the material which had been transported in the railroad cars in which they were working so they could take appropriate safety precautions, and Balog's subsequent refusal to assign workers to work on cars for which no sheets had been provided and which appeared to be hazardous; [Paragraph 12(d) of the complaint] and

(5) his refusal to make up false and/or trivial reasons to discharge probationary employees so as to allow defendants to discharge such employees to prevent them from joining the United Steelworkers of America union with which the company had a collective bargaining agreement. [Paragraph 12(e) of the complaint]

Thereafter, and apparently before defendants answered the complaint, Balog filed both a first and second amended complaint. The first amended complaint reframed the cause of action for retaliatory discharge as a cause of action for wrongful termination, added causes of action for breach of the covenant of good faith and fair dealing, negligent infliction of emotional distress, and loss of consortium (on the part of Barbara Balog, Balog's wife, who had been added as a plaintiff). The first amended complaint also added an allegation that Balog had been hired pursuant to an oral contract of employment under which his employment was to continue for an indefinite period so long as he performed in a satisfactory manner, and that he could only be discharged for "good cause proven" and then only in accord with the stated policies of the company; that he had been told that he would be supplied with all needed equipment and assistance to expand the company's angle and safety valve operations, that he was asked to do the various illegal and unsafe acts referred to above, and that to have acceded to defendants' wishes that he commit such acts would have been in violation of the public policy of the State of California. More particularly, in regard to acts related to probationary employees, the first amended complaint alleged that defendants' requirement that Balog fire probationary employees just before the end of their probationary period would have been in violation of public policy in California, and would also have been in violation of the provisions of the collective bargaining agreement, and that defendants' requirement that Balog falsify work performances of such employees so as to justify their termination would have been in violation of public policy.

Balog's second amended complaint named LRJV Incorporated and Railguard, Inc., as defendants, and alleged that they were doing business under the fictitious name of Lundeen Railcar Repair Services. Unlike the first amended complaint, the second amended complaint was not verified. The second amended complaint reiterated the same allegations set out in Paragraph 12 of the original complaint.

Defendants answered the second amended complaint, and raised as an affirmative defense that Lundeen Railcar Repair Services was an employer within the meaning of the National Labor Relations Act (29 U.S.C., §§ 151 et seq.), that Balog's allegations regarding acts involving probationary employees arguably implicated section 8 of that Act (29 U.S.C., § 158), and that the claim stated in paragraph 12(e) of Balog's complaint was subject to the primary jurisdiction of the National Labor Relations Board ("NLRB").

Defendants, following some discovery, moved for summary judgment against Balog based on the following facts:

(1) That Balog was employed by Lundeen Railcar Repair Services;

(2) That Balog was a supervisorial employee who supervised Lundeen's production and maintenance employees;

(3) That such employees were in a bargaining unit represented by the United Steelworkers of America, AFL-CIO;

(4) That Balog contended that he was discharged for two reasons, "to wit, because he once refused to terminate an employee, Bill Butler ("Butler"), in order to prevent Butler from becoming a member of the Union;"

(5) That "Balog estimates that 60 percent of Lundeen's decision to discharge him was because of his refusal to perform hazardous work and 40 percent was because of his refusal to terminate Butler;"

(6) That Balog had not filed an unfair labor practice charge with the NLRB to contest his discharge.

Based on these facts, defendants urged that Balog's causes of action were preempted by the National Labor Relations Act ("NLRA" or "the Act").

Balog admitted that facts (1), (2), (3) and (6) were undisputed. Plaintiff denied that fact (4) was undisputed, and asserted that his deposition and attached declaration indicated that defendants' decision to terminate him had been motivated by incidents which had occurred before his refusal to terminate Butler, but that his refusal to fire Butler was also a factor in his termination. According to Balog's declaration, the immediate cause of his termination was his refusal, because of the lack of safety equipment, to assign one of his crew to paint the inside of a car which contained toxic gases. When he refused to do so, defendant Krebs told him that then Balog himself would have to do the painting. Balog refused, saying he would not even send a dog into the car, and Krebs then fired him for insubordination. Balog concluded that, in his opinion, neither the Butler incident nor the painting incident would have resulted in his termination, but that they were seized upon by the defendants as a ruse in order to terminate him for his continued protests against safety violations.

Balog also denied that fact (5) was undisputed, pointing out that the 40 and 60 percent figures had been suggested by defendants' counsel after Balog had advised him that he could only guess about the estimated figures as to which defendant's counsel was questioning him.

Defendants' motion for summary judgment was denied. The court concluded that there were substantial issues of fact in dispute in that the excerpt from plaintiff's deposition which set forth the reasons he believed he had been terminated was based on speculation and conjecture, and the court could not conclude that the matter was indeed preempted by the National Labor Relations Act.

Having lost their motion for summary judgment, defendants then filed a motion for judgment on the pleadings on the ground that "the wrongs alleged arguably constitute unfair labor practices under the National Labor Relations Act," and that therefore the NLRB had exclusive jurisdiction which preempted Balog's stated causes of action.

Balog opposed the motion for judgment on the pleadings, and stated, assuming his allegations regarding discrimination against probationary employees for the purpose of preventing their admission into the union was the reason his action might be preempted, that he would amend the complaint to delete those allegations. Defendants argued that plaintiff could not truthfully delete those allegations, and that he could not thus by-pass the preemption issue.

The defendants' motion was granted, and judgment was entered in favor of defendants and against plaintiff, the court concluding, as a matter of law, that Balog's action was preempted. Balog filed a timely notice of appeal, and now urges that the judgment must be reversed because the NLRA does not preempt his action and because he should have been allowed to amend his complaint, if necessary, so as to avoid the preemptive effect of the NLRA.

DISCUSSION

The National Labor Relations Act (29 U.S.C., §§ 151 et seq., hereinafter "NLRA") was designed to "eliminate the causes of certain substantial obstructions to the free flow of commerce ... by encouraging the practice and procedure of collective...