Kelecheva v. Multivision Cable T.V. Corp.

• Decision Date: 31 August 1993
• Docket Number: No. A058746,A058746
• Citation: 18 Cal.App.4th 521,22 Cal.Rptr.2d 453
• Court: California Court of Appeals Court of Appeals
• Parties: , 144 L.R.R.M. (BNA) 2124, 62 USLW 2183, 126 Lab.Cas. P 10,892, 8 IER Cases 1297 Gary G. KELECHEVA, Plaintiff and Appellant, v. MULTIVISION CABLE T.V. CORP., Defendant and Respondent.

Page 453

22 Cal.Rptr.2d 453

18 Cal.App.4th 521, 144 L.R.R.M. (BNA) 2124, 62 USLW 2183,

126 Lab.Cas. P 10,892, 8 IER Cases 1297

Gary G. KELECHEVA, Plaintiff and Appellant, v. MULTIVISION CABLE T.V. CORP., Defendant and Respondent.

No. A058746.

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

Aug. 31, 1993.

As Modified on Denial of Rehearing Sept. 29, 1993.

Review Denied Nov. 17, 1993.

Virdeh & Virdeh and Arbraham Virdeh, Santa Rosa, for plaintiff and appellant.

Michael W. O'Neil, Orinda, for defendant and respondent.

PHELAN, Associate Justice.

Plaintiff Gary G. Kelecheva timely appeals from a judgment of dismissal entered in favor of defendant Multivision Cable T.V. Corp. on motion for summary judgment. The superior court ruled that each of the three causes of action alleged in plaintiff's wrongful termination complaint was within the exclusive jurisdiction of the National Labor Relations Board (NLRB) under the federal preemption doctrine first announced in San Diego Unions v. Garmon (1959) 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (hereafter Garmon ). We affirm the trial court's judgment as to the dismissal of plaintiff's tort claim for wrongful termination in violation of public policy, but reverse as to plaintiff's contract-based causes of action.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff alleges that he was employed by defendant and its "predecessors in interest" for 17 years, beginning in October 1973. Defendant disputes this allegation, but admits it employed plaintiff for a period of approximately four years, from December 1986 to October 1990. Defendant also admits that plaintiff was demoted and transferred in November 1988 from installation supervisor in Rohnert Park to maintenance technician in Sonoma, and promoted to a position as a lead technician in Sonoma in February 1989. At some unspecified point thereafter, defendant warned plaintiff that his employment would be terminated if his performance did not improve. Plaintiff's employment was actually terminated on October 26, 1990.

At the time of discharge, plaintiff held the position of lead technician, and also supervised installation and service personnel in defendant's Sonoma County cable television operations. It is undisputed that plaintiff's employment relationship with defendant was not governed in any way by a collective bargaining agreement. Defendant admits, however, that plaintiff's employment In his verified complaint, filed October 11, 1991, plaintiff alleged causes of action for wrongful termination in violation of public policy, breach of an implied contract, and breach of the covenant of good faith and fair dealing. ¹ For his first cause of action, plaintiff alleged that he was subjected to a campaign of harassment and, ultimately, discharged because he refused to spy on and "write up" coworkers who were involved in a unionization effort of defendant's workforce, and that this course of conduct violated public policy embodied in state and federal labor statutes.

and the termination of that employment, was governed by policies in its Employee Handbook.

For his second cause of action, plaintiff alleged that he was employed by defendant pursuant to an implied employment contract terminable only for good cause. Plaintiff further alleged that defendant breached the contract by terminating his employment based on " 'Drummed-up Charges' of insubordination and bad performance ... for his refusal to interfere with his co-employees' rights to form or join a union."

Plaintiff's third cause of action alleges that defendant breached the implied covenant of good faith and fair dealing in plaintiff's implied employment contract in three different ways: (1) by discharging him because he "refused to follow defendant's instructions to spy on and harass his co-workers who were exercising their legal rights to join or form a Union"; (2) by "violating and failing to follow its own personnel policies by not providing plaintiff with written warning of performance deficiency as a Lead Technician, as required by its personnel policy before discharge, and by 'spying' on plaintiff to 'Drum-Up' charges in bad faith"; and (3) by "failing to provide plaintiff with safety belts ordered, and then 'Drumming up a charge' against plaintiff for allowing co-workers to be in a 'Basket Lift' without a safety belt, ... and charging plaintiff with insubordination and firing plaintiff unlawfully and in bad faith because plaintiff attempted to bring this intolerable condition to the attention of his superiors in the company."

A bit more detail about plaintiff's claims emerged in connection with defendant's motion for summary judgment. Plaintiff testified at deposition that he was harassed and discharged because he refused to take illegal, discriminatory action against another employee, Kevin Sullivan, after Mr. Sullivan was named as the union's shop steward and negotiating committee member. Apparently, there were several incidents of alleged "failure to properly perform supervisory duties", in which plaintiff refused to write up Mr. Sullivan for wearing a short-sleeved shirt, for not wearing a hard hat, and for being in a basket lift without a safety belt.

In its motion for summary judgment, defendant relied solely on a theory that Garmon required preemption of plaintiff's entire action, and maintained that disputed factual issues as to the longevity of plaintiff's employment and other factors bearing on the existence of an implied-in-fact contract terminable only for good cause, were immaterial. Other than admissions contained in defendant's verified answer, and defendant's Employee Handbook (which was authenticated by defendant in its answer), plaintiff did not present any evidence in response to the summary judgment motion.

The superior court granted defendant's motion for summary judgment by order filed July 1, 1992. Plaintiff timely appealed from the judgment of dismissal by notice dated August 17, 1992.

DISCUSSION

A. Standard of Review.

In reviewing a summary judgment ruling, we independently apply the same three-step analysis required of the trial court: "First, we identify the issues framed by the pleadings since it is these allegations to which the motion must respond....

[p] Secondly, we determine whether the moving party's showing has established facts which negate the opponent's claim[s] and justify a judgment in movant's favor.... [p] When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue." (Chevron U.S.A., Inc. v. Superior Court (1992) 4 Cal.App.4th 544, 548, 5 Cal.Rptr.2d 674, internal quotation marks omitted.)

B. Appellant's Tort Claim for Wrongful Termination in Violation of Public Policy is Preempted by the National Labor Relations Act.

California courts have long recognized a cause of action sounding in tort for wrongful discharge in violation of public policy. (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 170, 164 Cal.Rptr. 839, 610 P.2d 1330.) The California Supreme Court has recently reaffirmed its commitment to this principle (Foley v. Interactive Data Corp. (hereafter Foley ) (1988) 47 Cal.3d 654, 665-667, 254 Cal.Rptr. 211, 765 P.2d 373), but has limited it to include only those claims of wrongful discharge which allegedly violate a fundamental public policy embodied in constitutional or statutory provisions. (Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1095, 4 Cal.Rptr.2d 874, 824 P.2d 680.) Apparently, plaintiff's first cause of action for wrongful termination in violation of federal labor statutes is an attempt to state such a claim.

We must decide, however, whether plaintiff's public policy claim is subject to Garmon preemption and, therefore, beyond the jurisdiction of the California courts. In Garmon, the United States Supreme Court established "general guidelines" for determining the permissible scope of state regulation of activity touching upon labor-management relations, and held that when an activity is arguably prohibited or protected by section 7 or section 8 of the National Labor Relations Act as amended (NLRA) (29 U.S.C. § 151 et. seq.), the state courts must defer to the exclusive competence of the NLRB in order to avoid state interference with national labor policy. (359 U.S. at p. 245, 79 S.Ct. at p. 779.) More recently, the Court has refined its preemption analysis and has held that where the alleged conduct falls within the "arguably prohibited" prong of the Garmon preemption test, 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 & Co. v. Carpenters (1978) 436 U.S. 180, 197, 98 S.Ct. 1745, 1757, 56 L.Ed.2d 209.)

A careful review of the record reveals that plaintiff's first cause of action is subject to Garmon preemption. Plaintiff asserts that he was discharged from his supervisory position because he refused to participate in defendant's unlawful campaign of anti-union harassment. It is essentially undisputed that defendant's retaliatory conduct, if proven, would constitute a violation by defendant of section 8, subdivision (a)(1), of the NLRA. (Belcher Towing Co. v. N.L.R.B. (5th Cir.1980) 614 F.2d 88; Russell Stover Candies, Inc. v. N.L.R.B. (8th Cir.1977) 551 F.2d 204.) ² In the circumstances presented in this case, a tort claim for wrongful termination in violation of public policy is clearly preempted. (Bassett v. Attebery (1986) 180 Cal.App.3d 288, 293-294, 225 Cal.Rptr. 399; Henry v. Intercontinental Radio, Inc. (1984) 155 Cal.App.3d 707, 715, 202 Cal.Rptr. 328.)

Relying on Balog v. LRJV, Inc. (1988) 204 Cal.App.3d 1295, 250 Cal.Rptr. 766, however, plaintiff argues that where refusal to commit unfair labor practices is not Plaintiff's reliance on Balog is misplaced. The...