Banfield v. Laidlaw Waste Systems

• Decision Date: 24 August 1998
• Docket Number: No. 05-96-01425-CV,05-96-01425-CV
• Citation: 977 S.W.2d 434
• Parties: 136 Lab.Cas. P 58,475 Benjamin Allen BANFIELD and Robert Lindsey, Appellants, v. LAIDLAW WASTE SYSTEMS, Appellee.
• Court: Texas Court of Appeals

Page 434

977 S.W.2d 434

136 Lab.Cas. P 58,475

Benjamin Allen BANFIELD and Robert Lindsey, Appellants, v. LAIDLAW WASTE SYSTEMS, Appellee.

No. 05-96-01425-CV.

Court of Appeals of Texas Dallas.

Aug. 24, 1998.

Kenneth W. Byford, Maria S.R. Wieman, Byford & Associates, P.C., Dallas, for Appellant.

Dan Hartsfield, Michele Rogers Baird, Sharlee Ann Cole, Gardere & Wynne, L.L.P., Dallas, Samara L. Kline, Baker & Botts, Dallas, for Appellee.

Before LAGARDE, OVARD and ROACH, JJ.

OPINION

ROACH, Justice.

Benjamin Allen Banfield and Robert Lindsey appeal the trial court's summary judgment in favor of Laidlaw Waste Systems. In two points of error, Banfield and Lindsey assert the trial court erred in determining that the National Labor Relations Act (NLRA) ¹ preempts their claims for wrongful discharge asserted under the Texas Right to Work Law and their common law defamation claims. Because we conclude that (1) the wrongful discharge claims are preempted by the NLRA, and (2) the statements comprising the basis of appellants' defamation claims are not defamatory as a matter of law, we affirm the trial court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Banfield and Lindsey filed a lawsuit against their former employer, Laidlaw Waste Systems (Laidlaw), alleging they were fired for engaging in union organizing activity. They asserted claims for wrongful discharge in violation of the Texas Right to Work Law, ² as well as common law claims of defamation, intentional infliction of emotional distress, and negligent supervision. ³ The trial court granted Laidlaw's motion to dismiss for lack of subject matter jurisdiction regarding appellants' claims for wrongful discharge, intentional infliction of emotional distress, and negligent supervision, ruling that the claims were preempted by the NLRA. The trial court granted appellants additional discovery time to pursue their remaining defamation claims. Later, appellants renewed their claims for wrongful discharge, intentional infliction of emotional distress, and negligent supervision and moved for reconsideration of the trial court's dismissal of these claims. ⁴ Laidlaw moved for summary judgment as to all of appellants' causes of action, including their defamation claim. The trial court granted Laidlaw's motion for summary judgment and denied appellants' motion for reconsideration.

TEXAS RIGHT TO WORK LAW

This appeal requires us to examine the substance of the claims appellants assert under the Texas Right to Work Law to determine whether they are preempted by the NLRA. Among other things, the Texas Right to Work Law provides that a person may not be denied employment based on membership or nonmembership in a labor union. TEX LAB.CODE ANN. § 101.052 (Vernon 1996). Appellants claim that this provision prohibited Laidlaw from discharging them for their union organizing activity. For the purposes of this opinion, we assume, without deciding, that appellants asserted a viable cause of action under this provision.

Several distinct categories of claims are preempted under the NLRA. Section 301 of the NLRA preempts state law claims whenever resolution of the claim requires interpretation of a collective bargaining agreement. Lingle v. Norge Div. of Magic Chef, 486 U.S. 399, 408-10, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988). Relying on Lingle, appellants argue that because resolution of their claims does not require the court to construe a collective bargaining agreement, their claims are not preempted. However, this argument ignores the category of preemption under the NLRA which preempts state and federal courts from exercising jurisdiction on claims that are based upon conduct or activity that is arguably protected or prohibited under sections 7 or 8 of the NLRA. San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 245, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). Because there is no collective bargaining agreement involved in this case, Lingle is inapplicable.

We begin with the general proposition that state and federal courts must defer to the exclusive jurisdiction of the National Labor Relations Board (NLRB) in all cases arising out of activities that are arguably subject to sections 7 or 8 of the NLRA. Id. The Garmon preemption doctrine focuses on the conduct that forms the basis of the underlying claim and not the characterization of the claim under state law. See Amalgamated Ass'n of St., Elec. Ry. & Motor Coach Employees of Am. v. Lockridge, 403 U.S. 274, 292, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971). The pivotal inquiry is whether the state court controversy is the same or different from that which could have been presented to the NLRB. See Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters, 436 U.S. 180, 197, 98 S.Ct. 1745, 56 L.Ed.2d 209 (1978).

Section 7 of the NLRA guarantees employees the right to self-organize, form, join, or assist labor organizations and to engage in other concerted activity for the purposes of collective bargaining. 29 U.S.C.A. § 157 (West 1973). Section 8 prohibits an employer from interfering with an employee's exercise of section 7 rights and deems it an unfair labor practice for an employer to discriminate in the hiring or tenure of employment so as to encourage or discourage membership in a labor organization. 29 U.S.C.A. § 158(a)(1),(3) (West 1973).

Appellants' claims that they were wrongfully discharged for engaging in union organizing activity goes straight to the heart of the activity protected by sections 7 and 8 of the NLRA. Their claims under the Texas Right to Work Law rest solely upon conduct protected by section 7 and which, if interfered with, constitutes an unfair labor practice under section 8.

In support of their contention that their asserted claims for wrongful discharge under the Texas Right to Work Act are not preempted, appellants rely on several cases from other jurisdictions, primarily Willard v. Huffman, 250 N.C. 396, 109 S.E.2d 233, cert. denied, 361 U.S. 893, 80 S.Ct. 195, 4 L.Ed.2d 150 (1959), and Taylor v. Hoisting & Portable Engineers Local Union 101, 189 Kan. 137, 368 P.2d 8 (1962). We do not find the reasoning of these cases compelling. In both cases, the plaintiffs asserted a claim under their state's right to work law for wrongful discharge for membership or nonmembership in a union. Willard, 109 S.E.2d at 235; Taylor, 368 P.2d at 9-10. In holding that the plaintiffs' claims were not preempted by the NLRA, the North Carolina and Kansas Supreme Courts engaged in an unconvincing analysis that seems to ignore the plain import of Garmon. Willard, 109 S.E.2d at 241-242; Taylor, 368 P.2d at 11. In addition, both courts emphasized reliance on section 14(b) of the NLRA, which explicitly allows state regulation of agreements requiring membership in a union as a condition of employment, to support their holdings. Willard, 109 S.E.2d at 242-43; Taylor, 368 P.2d at 12. Later United States Supreme Court opinions have made clear that a state's jurisdiction pursuant to section 14(b) is activated when a union security agreement as described in section 14(b) is actually negotiated and executed. See Retail Clerks Int'l Ass'n Local 1625 v. Schermerhorn, 375 U.S. 96, 105, 84 S.Ct. 219, 11 L.Ed.2d 179 (1963).

Other cases cited by appellants involve enforcement of union security agreements contrary to state right to work laws. See Sheet Metal Workers Int'l Ass'n v. Nichols, 89 Ariz. 187, 360 P.2d 204 (1961); Smith v. General Motors Corp., 128 Ind.App. 310, 143 N.E.2d 441 (1957); Martin v. Dealers Transp. Co., 48 Tenn.App. 1, 342 S.W.2d 245 (1960). These state actions are precisely the type sanctioned by and excepted from preemption pursuant to section 14(b) of the NLRA. See Schermerhorn, 375 U.S. at 102-03, 84 S.Ct. 219. Because this case does not involve a union security agreement, these decisions are inapplicable to our analysis. The Texas Supreme Court has recognized a private cause of action based upon the Texas Right to Work Act for terminations based on union membership. See Lunsford v. City of Bryan, 156 Tex. 520, 297 S.W.2d 115 (1957); Vasquez v. Bannworths, Inc., 707 S.W.2d 886 (Tex.1986). However, it has never specifically addressed the issue of whether a cause of action exists under the Texas Right to Work Law for the conduct alleged by appellants. The Texas Supreme Court also has never considered whether such an action would be preempted by the NLRA. The only Texas cases addressing the preemption issue with respect to the Texas Right to Work Act are Leiter Manufacturing Co. v. International Ladies' Garment Workers' Union, 269 S.W.2d 409 (Tex.Civ.App.--Dallas 1954, no writ); Borden v. United Ass'n of Journeymen & Apprentices, 316 S.W.2d 458 (Tex.Civ.App.--Dallas 1958), aff'd, 160 Tex. 203, 328 S.W.2d 739 (1959); Carpenters & Joiners Local Union v. Hampton, 457 S.W.2d 299 (Tex.Civ.App.--Tyler 1970, no writ); and Dallas General Drivers, Warehousemen & Helpers Local 745 v. Central Beverage, Inc., 507 S.W.2d 596 (Tex.Civ.App.--Dallas 1974, writ ref'd n.r.e.).

In Leiter, we concluded that because the discharge or layoff for union membership was held to be an unfair labor practice under section 8(a)(3) of the NLRA, an action for reinstatement based on the Texas Right to Work Act alleging the same conduct was preempted. See Leiter, 269 S.W.2d at 410. In Borden, however, we held that a union member's state tort action for damages against two labor unions for interference with his right to work at a construction site in violation of the Texas Right to Work Law was not preempted by the NLRA. Borden, 316 S.W.2d at 460-61. Both Leiter and Borden were decided before the Supreme Court's decision in Garmon.

In Hampton, the Tyler Court of Appeals, relying on Local No. 438 Construction & General Laborers' Union v. Curry, 371 U.S. 542, 83 S.Ct. 531, 9 L.Ed.2d 514 (1963), concluded that the plaintiff's action to enjoin picketing he claimed was to persuade him to use only union workers contrary to the Texas Right to...