Henry v. Intercontinental Radio, Inc.

• Decision Date: 11 May 1984
• Court: California Court of Appeals Court of Appeals
• Parties: Herman HENRY, Plaintiff and Appellant, v. INTERCONTINENTAL RADIO, INC., et al., Defendants and Respondents. Civ. 53678. AO12214.

Page 328

202 Cal.Rptr. 328

155 Cal.App.3d 707

Herman HENRY, Plaintiff and Appellant, v. INTERCONTINENTAL RADIO, INC., et al., Defendants and Respondents.

Civ. 53678.

AO12214.

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

May 11, 1984.

Hearing Denied July 25, 1984.

Louis A. Highman, San Francisco, for plaintiff and appellant.

Littler, Mendelson, Fastiff & Tichy, Alan B. Carlson, Stephen D. Pahl, San Jose, for defendants and respondents.

NEWSOM, Associate Justice.

Plaintiff below appeals from a judgment entered in favor of defendants after the sustaining without leave to amend of defendants' demurrer to the complaint.

Defendants/respondents Intercontinental Radio, Inc. (a California corporation) and United Broadcasting Company (a Maryland corporation) own and operate radio station KSOL in San Mateo County. From 1974 until January 4, 1978, plaintiff/appellant Herman Henry was employed under an oral agreement with respondents as station manager of KSOL. On that latter date his employment with the station was terminated, whereupon the present litigation was commenced in San Mateo Superior Court.

As amended, the complaint alleged Henry's discharge to be a tortious breach of the covenant of good faith and fair dealing (Count I), a violation of public policy (Count II), a violation of California Labor Code sections 1101, 1102 ¹ (Count III), and a violation of California Labor Code sections 922, 923 ² (Count IV). Each of these four counts contained the following allegation "A significant contributing factor in the decision to terminate Plaintiff was Defendants' perception that Plaintiff was working to increase wages for Black employees and other employees of Radio Station KSOL and to improve the working conditions, status, and opportunities, and that Plaintiff was working to bring a union to the station."

The suit sought lost wages to the date of judgment, damages for emotional distress, etc., punitive damages of $100,000, and attorney's fees and costs. Respondents demurred to this complaint on grounds, inter alia, that appellant's causes of action were preempted by the National Labor Relations Act (NLRA or Act).

The court below preliminarily sustained this demurrer on grounds that jurisdiction over the instant causes of action was preempted under the NLRA; however, it allowed appellant a 10-day grace period to amend the complaint to allege that the National Labor Relations Board (NLRB or Board) had declined in a previous proceeding to exercise jurisdiction over appellant's claims. When no amendment to this effect was offered, judgment sustaining the demurrer without leave to amend was entered.

Appellant here contends that sustaining the demurrer was improper because the complaint properly alleges that his termination was wrongful for impermissible reasons separate and distinct from unionization activities (i.e., "political" beliefs concerning equal opportunity, discrimination, and status of black employees). He also contends that preemption would be improper as he is a "supervisory" employee not protected by the retaliatory discharge provisions of the Act.

"The animating force behind the doctrine of labor law preemption has been the recognition that nothing could more fully serve to defeat the purposes of the Act than to permit state and federal courts, without any limitation, to exercise jurisdiction over activities that are subject to regulation by the National Labor Relations Board." (Sears, Roebuck & Co. v. Carpenters (1978) 436 U.S. 180, 218, 98 S.Ct. 1745, 1768, 56 L.Ed.2d 209 (Brennan, J., dissenting.) In one of the earliest expressions of the preemption doctrine, the Supreme Court noted the rationale underlying it: "Congress did not merely lay down a substantive rule of law to be enforced by any tribunal competent to apply law generally to the parties. It went on to confide primary interpretation and application of its rules to a specific and specially constituted tribunal and prescribed a particular procedure for investigation, complaint and notice, and hearing and decision, including judicial relief pending a final administrative order. Congress evidently considered that centralized administration of specially designed procedures was necessary to obtain uniform application of its substantive rules and to avoid those diversities and conflicts likely to result from a variety of local procedures and attitudes toward labor controversies.... A multiplicity of tribunals and a diversity of procedures are quite as apt to produce incompatible or conflicting adjudications as are different rules of substantive law." (Garner v. Teamsters Union (1953) 346 U.S. 485, 490-491, 74 S.Ct. 161, 165-166, 98 L.Ed. 228.)

In San Diego Unions v. Garmon (1959) 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775, the Supreme Court formulated guidelines to determine the permissible scope of state regulation of labor-management relations: "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." (Garmon, supra, at pp. 244-245, 79 S.Ct. at pp. 779-780.)

These guidelines, however, are not to be applied in procrustean, mechanical fashion. "[I]nflexible application of the doctrine is to be avoided, especially where the State has a substantial interest in regulation of the conduct at issue and the State's interest is one that does not threaten undue interference with the federal regulatory scheme." (Farmer v. Carpenters (1977) 430 U.S. 290, 302, 97 S.Ct. 1056, 1064, 51 L.Ed.2d 338.) Thus the preemption doctrine has not been applied where the activity involved was of "merely peripheral concern of the Labor Management Relations Act ... [or] 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." ³ (Garmon, supra, at pp. 243-244, 79 S.Ct. at pp. 778-779.)

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 ....." (Vaca v. Sipes (1967) 386 U.S. 171, 180, 87 S.Ct. 903, 911, 17 L.Ed.2d 842.) 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, 198, 98 S.Ct. 1745, 1758, 56 L.Ed.2d 209.)

In the case at bench, appellant's discharge was "arguably" within the jurisdiction of the NLRB. Despite his contention that his supervisorial status removes him from the protection of the Act, the Board, commencing with the decision in N.L.R.B. v. Better Monkey Grip Co. (5th Cir.1957) 243 F.2d 836 (cert. den., 355 U.S. 864, 78 S.Ct. 96, 2 L.Ed.2d 69), has held, and the federal courts have accepted an unbroken line of decisions, that an employer will be held to have violated the Act when it discharges or otherwise discriminates against a supervisor for union-related factors on the theory that such conduct may have the effect of interfering, not with the right of supervisory employees who are not per se protected under the Act, but with the rights of nonsupervisory employees who may suffer infringement in the exercise of their own rights under the Act. (See, e.g., Iron Workers v. Perko (1963) 373 U.S. 701, 83 S.Ct. 1429, 10 L.Ed.2d 646; NLRB v. Nevis Industries (9th Cir.1981) 647 F.2d 905, 910-911; NLRB v. Eagle Material Handling, Inc. (3d Cir.1977) 558 F.2d 160, 165; Pioneer Drilling Co. v. N.L.R.B. (10th Cir.1968) 391 F.2d 961, 964.)

The complained-of activity here thus being within the application of the "arguably prohibited" branch of the Garmon preemption doctrine, the "critical inquiry" is "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." (Sears, Roebuck, supra, 436 U.S. at p. 197, 98 S.Ct. at p. 1757.) Appellant argues that the controversy here is not sufficiently identical, because the scope of his state causes of action "transcends the scope" of an unfair labor practice: such a practice is established only by proving a retaliatory or coercive motive on the part of the employer, whereas to establish his state cause of action he need only...