Levy v. Skywalker Sound

• Decision Date: 14 May 2003
• Docket Number: No. A097460.,A097460.
• Citation: 134 Cal.Rptr.2d 138,108 Cal.App.4th 753
• Court: California Court of Appeals Court of Appeals
• Parties: Robert M. LEVY, Plaintiff and Appellant, v. SKYWALKER SOUND et al., Defendants and Respondents.

134 Cal.Rptr.2d 138

108 Cal.App.4th 753

Robert M. LEVY, Plaintiff and Appellant, v. SKYWALKER SOUND et al., Defendants and Respondents.

No. A097460.

Court of Appeal, First District, Division 2.

May 14, 2003.

Rehearing Denied June 4, 2003.

Towner Law Offices and Bruce M. Towner, San Francisco, for Appellant.

Littler Mendelson, Robert G. Hulteng, San Francisco, and Sheila M. Kiernan, for Respondents.

RUVOLO, J.

Robert M. Levy appeals from a summary judgment in favor of his employer, Skywalker Sound, a limited liability corporation. We agree with the trial court that the force of federal labor law is with Skywalker Sound, and that all of Levy's claims are preempted. We also conclude that the trial court's denial of Levy's motion to amend his complaint to conform to proof was not an abuse of discretion, and in any event did not prejudice Levy, because his proposed amendment would not have cured the preemption problem. Accordingly, we affirm.

I. FACTUAL AND PROCEDURAL HISTORY

Skywalker Sound operates an audio recording facility in Marin County, referred to by the parties as the scoring stage, that is primarily used by third parties to produce music CDs.¹ The scoring stage is also used a small portion of the time by Skywalker Sound's affiliated companies² to produce music for film soundtracks. Skywalker Sound also operates facilities other than the scoring stage that are used to produce film and video soundtracks.

Levy is an experienced audio recording engineer. In November 1995, Levy was asked to come to Skywalker Sound on a short-term, emergency basis to help out with the production of a third-party music CD. Levy was living and working in Los Angeles at the time. While working on the short-term project, Levy was offered a full-time position at Skywalker Sound. He accepted the offer, and moved from Los Angeles to Marin County as a result. Levy was told that if he came to work for Skywalker Sound, he would be able to advance his career by pursuing his interest in mixing film soundtracks, an occupation in which he had no experience, but to which his existing audio engineering skills were related.

At least since 1987, Skywalker Sound has had a collective bargaining agreement (CBA) with Local No. 16 of the International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafte of the United States and Canada (I.A.T.S.E.) (the union) covering various specified classes of Skywalker Sound employees engaged in mixing sound for film and video. Before the spring of 1999, when the scope of the CBA was extended, it did not cover the music recording work done on the scoring stage.

When Levy was hired in 1995, he was told that the scoring stage was a "nonunion room" and that his position would not be a union position. Levy concededly agreed to take the position on that basis. Starting in April 1996, however, Levy repeatedly expressed concern to various Skywalker Sound managers about the fact that he was not in the union.

In response, Levy was told that Skywalker Sound and the union had an agreement under which the scoring stage was nonunion. Levy contends that Skywalker Sound management told him (untruthfully) that the union agreement affirmatively precluded union members from doing any work on the scoring stage. Skywalker Sound contends, on the other hand, that Levy was merely told that as a practical matter, due to the time demands of his position on the scoring stage, he would not be able to continue with his music work if he joined the union in order to pursue his interest in learning film mixing. Levy did not raise this issue with the union, and did not take any action aimed at enabling him to join the union, such as seeking bargaining unit clarification from the NLRB.

Levy joined the union when the CBA was extended to cover the scoring stage in the spring of 1999. In November 1999, Dann Thompson, a recently hired union employee at the scoring stage, showed Levy a copy of a letter dated May 5, 1989, from the union's business representative to a union steward at an apparently unrelated company called Sprocket Systems (the May 1989 letter). Thompson had received the May 1989 letter from his and Levy's supervisor, Leslie Jones, who had discovered it in a file cabinet in her office during the fall of 1998. The May 1989 letter indicated that in order to encourage Skywalker Sound to use union members rather than outside people to work on third-party music recording on the scoring stage, the union had agreed with Skywalker Sound's parent corporation that certain union benefits (night premiums, meal periods, meal penalties and rest periods) would not apply to union members while working on the scoring stage.

After Thompson showed Levy the May 1989 letter, Levy contacted the union and enlisted its support in approaching Skywalker Sound's management with a claim that he should have been permitted to join the union, and paid union wages for his work on the scoring stage, from the outset of his employment at Skywalker Sound. When informal efforts to resolve the dispute proved unsuccessful, Levy filed this action in Marin County Superior Court. He did not file a grievance or seek arbitration under the CBA, nor did he pursue any remedies that might have been available to him through the National Labor Relations Board.

In the course of discovery in this litigation, Skywalker Sound's counsel produced two documents embodying formal, signed agreements between the union and Skywalker Sound that are not contained in the CBA. The first one, which is dated April 6, 1989, and entitled "LETTER OF UDERSTANDING," appears to be the agreement that was described informally in the May 1989 letter. This agreement (the April 1989 Letter of Understanding) states at its outset that its purpose is to "clarify the meaning" of the CBA that became effective on January 1, 1987. Paragraph 5 of the April 1989 Letter of Understanding provides that "If any individuals employed within the classification of Section 2(i) [of the CBA³] perform music recording work (which is acknowledged to be outside the scope of the [CBA]) then the following provisions of the [CBA] shall not apply: Section 10 (night premium), Addendum Paragraph 7 (meal periods and meal penalties) and Addendum Paragraph 9 (rest period)." The document also includes four other numbered paragraphs setting forth agreements regarding the implementation of other provisions of the CBA. None of the other four paragraphs makes any reference to music recording or to the scoring stage.

The second agreement produced in discovery is dated April 4, 1996—about four months after Levy began working at Skywalker Sound—and is entitled "Skywalker Sound/Local 16—Sideletter of Understanding relating to the rental of the facilities to third parties." This document (the April 1996 Sideletter) was drafted and signed by Jim Morris, the president of Skywalker Sound's parent company, and countersigned on behalf of the union by Rod McLeod, its business manager and secretary.

The April 1996 Sideletter begins by acknowledging that the union "has in the past agreed to significantly modify the terms and conditions under which Skywalker Sound's employees could work in certain specified circumstances" due to the company's poor financial condition. It goes on to state that its purpose is to confirm the union's agreement (1) to continue to negotiate in good faith on concessions requested by Skywalker Sound regarding the terms and conditions of its employees' work for Skywalker Sound's affiliates, and (2) to "[p]ermit Skywalker [Sound] to rent the facility and the equipment therein to unaffiliated third parties from time to time, it being agreed that the [CBA] shall not apply with respect to the rented facility and equipment or to any persons employed by the third party(ies) to work in the facility or operate the equipment, but it being understood that the [CBA] will apply with respect to any of [Skywalker Sound's] employees who are scheduled by Skywalker to work in the rented facility or to operate the rented equipment." In using the terms "the facilities," "the facility," and "the rented facility," the April 1996 Sideletter does not explicitly distinguish between the scoring stage and Skywalker Sound's film mixing area.

As of January 5, 2001, when Levy filed his first amended complaint in this action,⁴ Levy did not have a copy of either the April 1989 Letter of Understanding or the April 1996 Sideletter.⁵ Lacking these documents, Levy premised his allegations regarding his right to union membership and wages on the May 5, 1989 letter, which was referred to in the complaint as the "Scoring Stage Letter Agreement" or "SSLA" and attached to it as an exhibit.

Levy's complaint pled nine causes of action, which may be summarized as follows: (1) Skywalker Sound's failure to provide Levy with union wages and benefits was a breach of the SSLA, a contract of which Levy was a third party beneficiary; (2) Skywalker Sound's failure to pay Levy union wages and benefits as required by the SSLA was a violation of Labor Code sections 204, 222, and 223, for which Levy was entitled to sue under Labor Code section 218; (3) Skywalker Sound violated Labor Code section 970 by misrepresenting the nature of Levy's employment in order to induce him to move from Los Angeles to Marin County; (4) Skywalker Sound made fraudulent misrepresentations to Levy to induce him to become employed by it and to continue to provide services; (5) Skywalker Sound breached the covenant of good faith and fairly dealing implied in its employment contract with Levy by failing to disclose the terms and conditions they had agreed would govern Levy's employment; (6) and (7) Skywalker Sound intentionally (sixth cause of action) or negligently (seventh cause of action) misrepresented to Levy that under its agreement with the union, Levy was not eligible to become a union member; (8) and (9) Skywalker Sound's conduct constituted...