Cunningham v. Retail Clerks Union

• Decision Date: 29 November 1983
• Citation: 196 Cal.Rptr. 769,149 Cal.App.3d 296
• Court: California Court of Appeals Court of Appeals
• Parties: , 100 Lab.Cas. P 10,977 Helen CUNNINGHAM, Plaintiff and Respondent, v. RETAIL CLERKS UNION, LOCAL 1222, Defendant and Appellant. Civ. 26908.

Page 769

196 Cal.Rptr. 769

149 Cal.App.3d 296, 100 Lab.Cas. P 10,977

Helen CUNNINGHAM, Plaintiff and Respondent, v. RETAIL CLERKS UNION, LOCAL 1222, Defendant and Appellant.

Civ. 26908.

Court of Appeal, Fourth District, Division 1, California.

Nov. 29, 1983.

Rehearing Denied Dec. 23, 1984.

James E. McElroy of Schroeder & McElroy, San Diego, Cal., for plaintiff and respondent.

Douglas F. Olins of Olins, Foerster & Siegel, San Diego, Cal., for defendant and appellant.

BUTLER, Associate Justice.

Helen Cunningham was hired in 1958 by Local 1222 to work in the office. She was told her salary, holidays, sick leave and vacations would track like benefits provided for under a collective bargaining agreement between Local 1222, the Food Employers Council, Inc. and Independent Retail Operators (the Food Contract). As the Food Contract was renegotiated from time to time over the years and wage, pension and other benefits increased, she enjoyed increases in these benefits. While Cunningham joined and continued to be a member in good standing of Local 1222, she was not included within any bargaining unit under the Food Contract or any other collective bargaining agreement. She and the other office employees, while members of the union, were simply employees of the union.

From 1973 to 1975, Local 1222 suffered internal strife and was placed under trusteeship by the Retail Clerks International Union. In the fall of 1975, new local union officers were elected, and Tom Vandeveld became president. Cunningham, with other office employees, supported the opposition slate.

During the turmoil of the election campaign, most of the office staff were concerned their jobs would be jeopardized should the old guard lose out. They talked amongst themselves as to various options, and Cunningham at several meetings explained how to apply for disability benefits. Cunningham herself consulted a psychiatrist who directed her not to work after October 31, 1975, because of job stress.

Coincidentally, on the Monday following the election, November 1, 1975, Cunningham did not report for work along with a number of her fellow office employees. On November 10, 1975, she applied for Workers' Compensation. On November 14, the union received a copy of a letter from her psychiatrist explaining her disability. Cunningham continued to absent herself from work and was fired on January 16, 1976, by Vandeveld. After her attorney told Vandeveld an employee with an industrial injury could not be fired, he rescinded her termination.

On May 10, 1976, the psychiatrist released Cunningham and she reported to work for the union office. On May 12, 1976, Vandeveld fired her. He did not send her a written warning notice. On May 18, 1976, she complained to the executive board her termination violated the union constitution. Receipt of her letter was acknowledged. No action was taken. Cunningham then filed formal charges with the National Labor Relations Board which declined to issue a complaint and denied her appeal.

On May 12, 1978, Cunningham filed this lawsuit alleging damages for breach of the oral or implied contract governing the conditions of her employment. A jury awarded her $95,000 for back pay and lost pension. The union appeals contending: (1) the court improperly exercised jurisdiction over the matter as the claims were preempted by the National Labor Relations Act; (2) there was insubstantial evidence to support the conclusion Cunningham exhausted her administrative remedies; (3) Cunningham failed to mitigate her damages; and (4) the court failed to give a statute of limitations instruction.

I Jurisdiction

The union complains the state court should not have heard the case. When it is clear a state purports to regulate activities protected by section 7 of the National Labor Relations Act (the Act), ¹ or prohibited as an unfair labor practice under section 8, the state must be precluded from acting. (San Diego Building Trades Council, Etc. v. Garmon (1959) 359 U.S. 236, 244, 79 S.Ct. 773, 779, 3 L.Ed.2d 775.) This is so because "[t]o 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." (Ibid.)

When management or labor conduct "arguably" is protected or prohibited under the Act, the adjudication of such interests lies within the exclusive jurisdiction of the National Labor Relations Board. (United Farm Workers Organizing Committee v. Superior Court (1971) 4 Cal.3d 556, 94 Cal.Rptr. 263, 483 P.2d 1215.) The board is empowered to effect the primary aim of the Act to promote the full flow of commerce and "to prevent any person from engaging in any unfair labor practice ...." (29 U.S.C. § 160, subd. (a); Consolidated Theatres, Inc. v. Theatrical Stage Employees Union (1968) 69 Cal.2d 713, 721, 73 Cal.Rptr. 213, 447 P.2d 325.)

Preemption is designed to shield the system from conflicting regulation of conduct. It is the conduct being regulated, not the formal description of governing legal standards, that is the proper focus of concern. (Motor Coach Employees v. Lockridge (1970) 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473.) Thus, the states have the power to regulate where the activity is a "merely peripheral concern of the Labor Management Relations Act. [Citations.] 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." (Garmon, supra, 359 U.S. at pp. 243-244, 79 S.Ct. at pp. 778-779.)

The narrow issue presented is whether the union as employer and Cunningham as employee have a conflict so remote to the federal scheme and particularized as to them such that it was heard before the proper tribunal. In International Ass'n. of Machinists v. Gonzales (1958) 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018, the matter was properly before the state court when Gonzales complained he was unable to obtain employment and suffered damages because of his loss of union membership. Gonzales had alleged his damages arose as a result of a breach of contract. An ousted member was entitled to vindicate his personal rights before the state court.

"[T]he subject matter of the litigation in the present case, as the parties and the court conceived it, was the breach of a contract governing the relations between respondent and his unions. [Fn. omitted.] The suit did not purport to remedy or regulate union conduct on the ground that it was designed to bring about employer discrimination against an employee, the evil the Board is concerned to strike at as unfair labor practice '... The state court proceedings deal with arbitrariness and misconduct vis-a-vis the individual union members and the union; the Board proceeding, looking principally to the nexus between union action and employer discrimination, examines the ouster from membership in entirely different terms. [Citations.]' " (Gonzales, supra, 356 U.S. at pp. 621-623, 78 S.Ct. at pp. 925-926.)

Guided by these principles, we review the dispute. The gravamen of Cunningham's complaint is her employer fired her without warning and without cause. In doing so, the employer breached an oral or implied contract. Cunningham sued for damages arising out of such breach.

Neither the pleadings nor the evidence show any unfair labor practice as defined by the Act. The terms of Cunningham's employment followed an express practice and policy of the union's executive officer. Notably, there is a lack of evidence Vandeveld restrained or coerced Cunningham from freely engaging in any collective bargaining process, choosing a representative, or joining a union of her choice. She was not discouraged in any way from remaining a member of the union. It may be reasonably inferred from the jury's verdict they found Vandeveld's preference for a loyal staff a purely personal vindictive motive rather than a sufficient cause to fire Cunningham.

We decide the complained of conduct falls within those categories of cases where the possibility of conflict with federal policy is too contingent or too remote to exclude the state from adjudicating the dispute, and the matter was properly heard before the state court.

Before filing this lawsuit, Cunningham filed charges before the National Labor Relations Board complaining the union "terminated [her] in violation of her Section 7 rights because she actively supported the oposition [sic] candidates during an internal Union election." The board did not issue a complaint.

"As a result of the investigation, it does not appear that further proceedings on the charge are warranted. The investigation disclosed that your termination occurred following an extended period of absence for medical reasons. There is insufficient evidence to establish that your termination was in any way a result of any activity in which you may have engaged which would be protected under the National Labor Relations Act, or to refute the Employer's contention that your termination was solely the result of lack of work in your classification. I am, therefore, refusing to issue a complaint in this matter."

Cunningham's appeal to the General Counsel was denied for substantially the same reasons. Opposition to a successful candidate in the union's 1975 election "would not constitute a violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended."

Union's reliance on Local 926, Intern. Union of Oper. Eng. v. Jones (1983) 460 U.S. 669, 103 S.Ct. 1453, 75 L.Ed.2d 368, is misplaced. There, union member Jones, a supervisor, was fired by his employer, a power company. Jones earlier worked for a non-union company. He claimed his union maliciously intimidated and coerced his employer to fire him for the earlier non-union employment. The National Labor Relations Board...