LaBuhn v. Bulkmatic Transport Co.

• Decision Date: 29 December 1988
• Docket Number: No. 86-2664,86-2664
• Citation: 865 F.2d 119
• Parties: 130 L.R.R.M. (BNA) 2301, 110 Lab.Cas. P 10,884, 4 Indiv.Empl.Rts.Cas. 540 Joe LaBUHN, Plaintiff-Appellee, v. BULKMATIC TRANSPORT COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 119

865 F.2d 119

130 L.R.R.M. (BNA) 2301, 110 Lab.Cas. P 10,884,

4 Indiv.Empl.Rts.Cas. 540

Joe LaBUHN, Plaintiff-Appellee, v. BULKMATIC TRANSPORT COMPANY, Defendant-Appellant.

No. 86-2664.

United States Court of Appeals Seventh Circuit.

Argued Nov. 3, 1988.

Decided Dec. 29, 1988.

Lawrence C. DiNardo, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., for defendant-appellant.

Paul Alan Levy, Public Citizen Litigation Group, Washington, D.C., for plaintiff-appellee.

Before POSNER and RIPPLE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

POSNER, Circuit Judge.

This lawsuit presents an issue of federal preemption in a tangled procedural setting. We simplify where possible. The suit was originally filed in an Illinois state court in 1986. The plaintiff, Joe LaBuhn, sought compensatory and punitive damages against Bulkmatic Transport Company, which had employed him as a driver of its chemical trucks. The complaint charged that Bulkmatic had violated the common law of Illinois by firing him in retaliation both (1) for complaining (without success) to his supervisors about safety hazards at customers' premises, safety defects in Bulkmatic's trucks, and Bulkmatic's general lack of safety precautions for him and other drivers, and (2) for filing a grievance when he was fired once previously because of his complaints. Cf. Midgett v. Sackett-Chicago, Inc., 105 Ill.2d 143, 85 Ill.Dec. 475, 473 N.E.2d 1280 (1984). LaBuhn alleged that Bulkmatic's neglect of safety had resulted in his being exposed to dangerous quantities of silicate soda.

He was, as we have noted, fired twice. After the first firing, which took place in February 1985, he filed a grievance under the collective bargaining agreement between the company and the union representing its employees, and the grievance panel ordered him reinstated. A year later he was fired for good; this he contends was in retaliation for filing the grievance after his first discharge, as well as for the complaints about safety that led to that discharge.

Bulkmatic removed LaBuhn's suit to federal district court, on the ground that the suit really arose under section 301 of the Taft-Hartley Act, 29 U.S.C. Sec. 185, and was therefore a federal-question suit (and hence removable under 28 U.S.C. Sec. 1441(b)) despite LaBuhn's attempt to plead it as a state common law suit for wrongful discharge. Bulkmatic then moved to dismiss the suit on the ground that LaBuhn had failed to plead that the union had committed a breach of its duty of fair representation. In the absence of such a breach a worker cannot sue his employer under section 301 but must abide the outcome of whatever procedures the collective bargaining contract establishes for the resolution of disputes under the contract. DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 164-65, 103 S.Ct. 2281, 2290-91, 76 L.Ed.2d 476 (1983). Bulkmatic argued in the alternative that the suit was preempted by the National Labor Relations Act, 29 U.S.C. Secs. 151 et seq.

The district judge dismissed the suit, 644 F.Supp. 942 (N.D.Ill.1986), after first dividing it into two separate claims: retaliation for filing the grievance after LaBuhn was fired the first time; retaliation for complaining about safety conditions. The first claim, the judge held, was indeed a federal claim, however pleaded, and had indeed to be dismissed for failure to plead a breach of the union's duty of fair representation. Section 301 of the Taft-Hartley Act, which makes collective bargaining contracts judicially enforceable and has been interpreted to make the law applicable to suits to enforce such contracts federal common law, occupies the entire field of disputes over collective bargaining contracts. Anyone who brings such a suit is invoking federal common law whether he knows it or not, and therefore such a suit is within the original jurisdiction of the federal district courts and, if filed in a state court, can be removed to federal court. Caterpillar, Inc. v. Williams, 482 U.S. 386, 107 S.Ct. 2425, 2430, 96 L.Ed.2d 318 (1987); Avco Corp. v. Aero Lodge No. 735, Int'l Ass'n of Machinists, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968). However, the judge went on to hold, insofar as LaBuhn was charging that Bulkmatic had retaliated against him for complaining about unsafe working conditions he was invoking state common law and not seeking to enforce the collective bargaining agreement. This was a genuine state law claim. But since the parties were not of diverse citizenship, it could be maintained in federal court only under the pendent jurisdiction of that court, as a pendent claim to what the judge had recharacterized as a federal claim based on section 301 of the Taft-Hartley Act. Having dismissed the federal claim before trial, the judge followed standard procedure and relinquished jurisdiction over the pendent claim, ordering the entire complaint dismissed without prejudice. See Carnegie-Mellon University v. Cohill, --- U.S. ----, 108 S.Ct. 614, 618-19 and n. 7, 98 L.Ed.2d 720 (1988).

He noted, however, that the pendent claim might in any event be precluded. The Supreme Court has held that conduct which may be either protected or prohibited by the National Labor Relations Act is within the exclusive jurisdiction of the Labor Board, and therefore cannot be attacked in a federal or state suit. See San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). One of the allegations of LaBuhn's complaint was that he had "generally complained about the lack of safety precautions to himself and other drivers to his immediate supervisor and terminal manager ... and Defendant generally refused to take any steps to correct the problem." The words we have italicized raise the possibility that LaBuhn was fired for exercising his right under section 7 of the National Labor Relations Act, 29 U.S.C. Sec. 157, to engage in concerted activity with other workers for mutual aid and protection. But because the district judge believed that the disposition of the case must be the same whether he merely relinquished pendent jurisdiction of the safety-retaliation claim or held that claim to be preempted by Garmon, he declined to reach the issue of preemption.

Bulkmatic has appealed, arguing that the judge erred in dismissing the suit without prejudice, a disposition that allows LaBuhn to refile the suit in state court. (LaBuhn has not cross-appealed from the district court's dismissal under section 301 of his claim of retaliation for filing a grievance.) Bulkmatic argues that the suit should have been dismissed with prejudice because the whole suit was barred by section 301 or alternatively by the doctrine of the Garmon case. While the appeal was pending, the Supreme Court rendered two decisions that bear on its proper disposition. The first, Lingle v. Norge Division of Magic Chef, Inc., --- U.S. ----, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988), held that suits under state tort law for retaliatory discharge are not barred by section 301 even if the worker could have obtained equivalent relief under the grievance procedure established by the collective bargaining agreement, unless resolution of the claim for retaliatory discharge would require interpreting the agreement. The second case, Carnegie-Mellon University v. Cohill, supra, held that a district judge need not dismiss pendent state-law claims in a removed suit when the federal claims drop out before trial but can instead remand the pendent claims to the state court. LaBuhn and Bulkmatic filed supplemental briefs addressing the bearing of these decisions. Bulkmatic in its brief abandoned its claim that LaBuhn's state-law claims are barred by section 301 but continued to urge that they are barred by the Garmon doctrine. Violations of a collective bargaining agreement are actionable under section 301 even if they involve conduct arguably protected or prohibited by the National Labor Relations Act, see NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 31 n. 7, 87 S.Ct. 1792, 1796 n. 7, 18 L.Ed.2d 1027 (1967); William E. Arnold Co. v. Carpenters District Council, 417 U.S. 12, 16, 94 S.Ct. 2069, 2072, 40 L.Ed.2d 620 (1974), but Bulkmatic's present position is that LaBuhn is not in fact charging a violation of the collective bargaining agreement. LaBuhn in his brief argued that Cohill requires that the case be remanded to the state court rather than dismissed.

For a prevailing defendant to appeal is unusual but not impermissible. Obviously, you can't appeal from a decision that is entirely in your favor. California v. Rooney, 483 U.S. 307, 107 S.Ct. 2852, 97 L.Ed.2d 258 (1987); Unioil, Inc. v. E.F. Hutton & Co., 809 F.2d 548, 555 (9th Cir.1986); Balcom v. Lynn Ladder & Scaffolding Co., 806 F.2d 1127 (1st Cir.1986) (per curiam). (Who would want to? Well, someone who desired the greater authority of an appellate decision, or, as in Rooney, was troubled by the long-term implications of the court's analysis and feared that he had won a Pyrrhic victory.) But you can appeal from the parts of a generally favorable order that are unfavorable to you--for example, from a refusal, in an order awarding judgment to the named plaintiffs, to certify their suit as a class action. See Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 333, 100 S.Ct. 1166, 1171, 63 L.Ed.2d 427 (1980). There is even authority that a winning party can appeal any adverse finding that might form the basis for a plea of collateral estoppel in a subsequent suit. See Schwartzmiller v. Gardner, 752 F.2d 1341, 1345 (9th Cir.1984), and cases cited there. Against this it can be argued that a finding which a party had no incentive (other than fear of collateral estoppel) to appeal, because he won, has no collateral estoppel effect. See, e.g., Balcom v. Lynn Ladder & Scaffolding Co., supra; Gelb v. Royal Globe Ins. Co., 798 F.2d 38, 44 (2d Cir.1986); Restatement of Judgments (Second) Sec. 27,...