Bassett v. Attebery

• Decision Date: 24 April 1986
• Citation: 225 Cal.Rptr. 399,180 Cal.App.3d 288
• Court: California Court of Appeals Court of Appeals
• Parties: , 111 Lab.Cas. P 11,069 Stephen L. BASSETT, Plaintiff and Appellant, v. Larry ATTEBERY, Defendant and Respondent. Stephen L. BASSETT, Petitioner, v. SUPERIOR COURT of the State of California for the County of Los Angeles, Respondent, METROMEDIA, INC., Real Party in Interest. Civ. B013237, Civ. B015402.

Page 399

225 Cal.Rptr. 399

180 Cal.App.3d 288, 111 Lab.Cas. P 11,069

Stephen L. BASSETT, Plaintiff and Appellant, v. Larry ATTEBERY, Defendant and Respondent.

Stephen L. BASSETT, Petitioner, v. SUPERIOR COURT of the State of California for the County of Los Angeles, Respondent, METROMEDIA, INC., Real Party in Interest.

Civ. B013237, Civ. B015402.

Court of Appeal, Second District, Division 5, California.

April 24, 1986.

Review Denied July 23, 1986.

Mathews & Evans and William D. Evans, Los Angeles, for plaintiff and appellant Stephen E. Bassett.

Gibson, Dunn & Crutcher, Rex S. Heinke and Michelle Patterson, Los Angeles, for defendant and respondent Larry Attebery and real party in interest Metromedia, Inc.

EAGLESON, Associate Justice.

In this case, we hold that the National Labor Relations Board (NLRB) has exclusive jurisdiction over a wrongful discharge claim filed in state court, alleging federal labor law violations.

Bassett sued Attebery and Metromedia. The trial court granted summary judgment in favor of Attebery. In the same minute order, the court granted a Motion for Summary Adjudication of Issues in favor of Metromedia. Bassett appeals from these two rulings. We affirm. ¹

PROCEDURAL HISTORY

Bassett is a former executive producer of television news at Channel 11 in Los Angeles (KTTV). ² His verified first amended complaint against Metromedia, his corporate employer, and Attebery, his former supervisor, sounded in four counts: (1) breach of the terms of an oral contract of employment against both defendants; (2) intentional interference with a prospective business advantage against defendant Attebery only; (3) breach of the covenant of good faith and fair dealing as to both defendants; and (4) wrongful discharge in violation of public policy as to both defendants.

The court sustained without leave to amend Attebery's demurrer to Bassett's claims of intentional interference with prospective business advantage (Count 2) and breach of the covenant of good faith and fair dealing (Count 3). Also, Attebery's and Metromedia's motion to strike certain portions of the complaint was granted. Bassett has not sought review of any of these rulings.

Defendants thereafter jointly moved for summary judgment against plaintiff's remaining claims: breach of oral contract against Metromedia and Attebery (Count 1); breach of the covenant of good faith and fair dealing against Metromedia alone (Count 3); and wrongful discharge in violation of public policy against both Metromedia and Attebery (Count 4).

The summary judgment motion was made on the following grounds: (1) Attebery could not be liable for breach of the alleged oral agreement because he was never a party to any such contract between plaintiff and Metromedia; and (2) Bassett's wrongful termination claims against Metromedia and Attebery were based upon alleged federal labor law violations and were therefore preempted by federal law entrusting the NLRB with exclusive jurisdiction of such claims.

Bassett conceded that Attebery's motion on the contract claim was well taken. The trial court then granted the balance of the motion on the ground that the NLRB had exclusive jurisdiction of the wrongful termination claims. ³

ISSUE

The main issue is whether Bassett's wrongful termination claims, which involve alleged federal labor law violations, are preempted by federal law so as to preclude the exercise of state jurisdiction over them. ⁴

DISCUSSION

I

"When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield. To leave the States free to regulate conduct so plainly within the central aim of federal regulation involves too great a danger of conflict between power asserted by Congress and requirements imposed by state law.... [p] At times it has not been clear whether the particular activity regulated by the States was governed by § 7 or § 8 or was, perhaps, outside both these sections. But courts are not primary tribunals to adjudicate such issues. It is essential to the administration of the Act that these determinations be left in the first instance to the National Labor Relations Board.... [p] ... When an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted." (San Diego Unions v. Garmon (1959) 359 U.S. 236, 244-245, 79 S.Ct. 773, 779-80, 3 L.Ed.2d 775 emphasis added.)

"The decision as to whether to preempt state court jurisdiction, then, 'must depend upon the nature of the particular interests being asserted and the effect upon the administration of national labor policies....' [Citation.] And, '[t]he critical inquiry, ... 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 ... or different from ... 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, Roebuck & Co. v. Carpenters, supra, 436 U.S. 180, 197, 98 S.Ct. 1745, 1757 .)" (Henry v. Intercontinental Radio, Inc. (1984) 155 Cal.App.3d 707, 713, 202 Cal.Rptr. 328.)

After the irrelevant material was stricken from the first amended complaint, Bassett's remaining charging allegations are: "Plaintiff is informed and believes and based thereon alleges that defendant Attebery believed ... that plaintiff knew Attebery committed serious violations of State and Federal Labor laws in connection with a recent union election; and ... that unless plaintiff was discredited and/or silenced these alleged facts would become public knowledge. [p] .... [p] On or about June 11, 1981, defendants, acting without good cause, and in violation of fundamental principles of public policy including specifically ... state and federal labor laws governing the conduct of union elections ... wrongfully, and without cause or justification, terminated plaintiff's employment." (Emphasis added.)

These conclusionary allegations are not factually revealing. We are not told what "serious violations of state and federal labor laws" Attebery committed in "connection with a recent union election." We can infer, however, that Bassett and perhaps other Metromedia employees were victimized by the alleged violations, since an election ordinarily involves more than one voter.

We can also infer that defendants expected Bassett to reveal Attebery's violations. This conclusion is premised upon Bassett's allegation that unless he was silenced or discredited, Attebery believed "such facts would become public knowledge...." Our conclusion is also strengthened by the absence of any disavowal by Bassett of the likelihood of such a revelation.

Finally, Bassett alleges that he was wrongfully terminated, without good cause and in violation of public policy. These conclusionary allegations do not add to the facts pled. The only operative facts are that termination resulted from Bassett's knowledge that Attebery violated state and federal labor laws in connection with a recent union election, and that Attebery believed Bassett would make this knowledge public unless silenced or discredited. There are no other factual allegations showing lack of good cause or violation of any other discernible public policy.

Bassett argues that he is entitled to maintain a state cause of action for wrongful discharge under the authority of Tameny v. Atlantic Richfield Co., (1980) 27 Cal.3d 167, 164 Cal.Rptr. 839, 610 P.2d 1330. This case holds that an employee who is discharged for refusing to comply with the employer's demand to commit a criminal act may maintain a tort action against the employer. A termination based upon such refusal contravenes public policy. (Id. at p. 178, 164 Cal.Rptr. 839, 610 P.2d 1330.)

Tameny does not support Bassett's argument. Neither the Supreme Court nor the parties there addressed the preemption issue. Also, Tameny involved an employer's request that the employee participate in an illegal scheme to fix retail gasoline prices, a criminal act under both the Sherman Antitrust Act (15 U.S.C. § 1 et seq.) and the Cartwright Act (Bus. & Prof.Code, § 16720 et seq.). These alleged violations were not related to union activities.

Here, the subject matter involves unspecified "serious violations of state and federal labor laws in connection with a recent union election." This unfettered allegation concerning union election improprieties is arguably within the NLRB's jurisdiction.

II

Bassett contends that as a supervisor he is not subject to jurisdiction of the National Labor Relations Act (NLRA). (29 U.S.C. § 151 et seq.)

A supervisor is not an employee within the meaning of the NLRA,...