Luck v. Southern Pacific Transportation Co., Nos. A040995

CourtCalifornia Court of Appeals
Writing for the CourtCHANNELL; PERLEY; POCHE
Citation218 Cal.App.3d 1,267 Cal.Rptr. 618
Parties, 135 L.R.R.M. (BNA) 2744, 135 L.R.R.M. (BNA) 2800, 124 Lab.Cas. P 57,252, 5 IER Cases 414, 5 IER Cases 672 Barbara A. LUCK, Plaintiff and Respondent, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Defendant and Appellant. Barbara A. LUCK, Plaintiff and Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Defendant and Respondent.
Docket NumberNos. A040995,A042205
Decision Date21 February 1990

Page 618

267 Cal.Rptr. 618
218 Cal.App.3d 1, 135 L.R.R.M. (BNA) 2744,
135 L.R.R.M. (BNA) 2800, 124 Lab.Cas. P 57,252,
5 IER Cases 414, 5 IER Cases 672
Barbara A. LUCK, Plaintiff and Respondent,
v.
SOUTHERN PACIFIC TRANSPORTATION COMPANY, Defendant and Appellant.
Barbara A. LUCK, Plaintiff and Appellant,
v.
SOUTHERN PACIFIC TRANSPORTATION COMPANY, Defendant and Respondent.
Nos. A040995, A042205.
Court of Appeal, First District, Division 4, California.
Feb. 21, 1990.
Certified for Partial Publication. *
As Modified on Denial of Rehearing March 23, 1990.
Review Denied May 31, 1990.

Page 620

[218 Cal.App.3d 7] Robert S. Bogason, Henry F. Telfeian, Wayne M. Bolio, Patrick W. Jordan, Julie Collins Nelson, McLaughlin and Irvin, San Francisco, for defendant and appellant.

Kathleen Lucas-Wallace, Deborah C. England, Mark S. Rudy, San Francisco, Ellen Lake, Oakland, for plaintiff and respondent.

Edward M. Chen, American Civil Liberties Union, San Francisco, John True, Joan Graff, Employment Law Center of the Legal Aid Society of San Francisco, Steven L. Mayer, Matthew G. Jacobs, Carl L. Blumenstein, Howard, Rice, Nemerovski, Canady, Robertson & Falk, San Francisco, for amici curiae on behalf of respondent.

[218 Cal.App.3d 8] CHANNELL, Associate Justice.

Appellant Barbara A. Luck, a computer programmer employed by appellant Southern Pacific Transportation Company, was fired when she refused to submit a urine sample as part of an unannounced drug test by her employer. At trial, the jury awarded Luck $485,042 on her claims of wrongful termination, breach of the covenant of good faith and fair dealing, and intentional infliction of emotional distress. Southern Pacific appeals (Case No. A040995), contending that (1) the federal Railway Labor Act preempts Luck's claims; (2) the state constitutional right to privacy does not prohibit it from requiring its employees to submit to drug urinalysis; (3) there was no breach of the implied covenant of good faith and fair dealing nor wrongful termination in violation of public policy; (4) punitive damages were not merited; and (5) Luck failed to mitigate damages. Although we find that several of Luck's theories of liability are without legal support, the jury's verdict can be upheld on proper grounds. Therefore, we affirm the judgment.

After trial, Luck applied for an award of attorney fees, without success. She appeals this ruling (Case No. A042205), contending that she is entitled to fees at both trial and appellate levels. We affirm the trial court order and deny her petition for fees on appeal.

I. FACTS

In July 1985, appellant Barbara A. Luck had been employed for almost six and a half years by appellant Southern Pacific Transportation Company (Southern Pacific). She had been hired in 1979 as a signal department draftsperson and spent the next three months coloring copies of design prints. Then, she accepted a position as the department's computer operator, maintaining its data base of railroad track crossroads locations. After two years in this

Page 621

position, she was promoted to computer programmer. For the last four years of her employment, she worked collecting information used to manage the engineering department. She wrote computer programs, taught others how to use them, and ran reports describing what employees did each day, where company equipment was located, and how much material was being used by employees.

On July 11, 1985, Luck and all other Southern Pacific engineering department employees were instructed to provide a urine sample and to consent to its testing for drugs, alcohol or medications. She viewed this as an offensive request and refused to comply. Luck met with several Southern Pacific officials that day and the next, but remained steadfast in her refusal to take the test. Company officials told her that they had no reason to [218 Cal.App.3d 9] believe that she was impaired in her job performance. After these meetings, Luck believed that she had been suspended, but that before Southern Pacific took any further action she would be given a hearing. In a July 15 letter, Luck learned that she had been "relieved of all duties connected with [her] former position as Engineering Programmer" for failing to comply with the instructions of proper authority, i.e., for insubordination. 1

Luck filed suit against Southern Pacific. 2 The case was tried on her second amended complaint 3 with the jury returning verdicts in her favor on her causes of action for wrongful termination in violation of public policy, breach of the implied covenant of good faith and fair dealing, and intentional infliction of emotional distress. The jury awarded Luck $180,092 in economic damages for lost compensation and benefits, $32,100 for emotional distress, and $272,850 in punitive damages. The trial court denied her posttrial motion for attorney fees.

II. FEDERAL PREEMPTION

First, Southern Pacific contends that the trial court had no jurisdiction to try this case--that the federal Railway Labor Act (RLA) compels arbitration of Luck's wrongful termination claim and thus preempts her case. (See 45 U.S.C. §§ 151-188; see also 45 U.S.C. § 153, subd. 1(i).) 4 At trial, Southern Pacific's motion for nonsuit on this ground was denied. Although Luck was a union member when she was first hired by Southern Pacific, she was an exempt (nonunion) employee not covered by a collective bargaining agreement at the time of termination. Southern Pacific contends that the [218 Cal.App.3d 10] RLA requires even nonunion employees to submit claims to arbitration before the Adjustment Board. Courts are reluctant to infer preemption, which Southern Pacific--as the party urging it--bears the burden of establishing. (See Mungo v. UTA French Airlines

Page 622

(1985) 166 Cal.App.3d 327, 332, 212 Cal.Rptr. 369.)

Federal legislation and case law guide state courts in matters presenting federal jurisdictional issues. (Mungo v. UTA French Airlines, supra, 166 Cal.App.3d at p. 331, 212 Cal.Rptr. 369.) Congress enacted the RLA to promote stability in the railroad industry and to provide for prompt and efficient resolution of labor-management disputes arising out of railroad collective bargaining agreements. (Evans v. Southern Pacific Transportation Co. (1989) 213 Cal.App.3d 1378, 1383, 262 Cal.Rptr. 416; see Lewy v. Southern Pacific Transp. Co. (9th Cir.1986) 799 F.2d 1281, 1289.) The RLA creates a mandatory grievance procedure for resolution of "minor disputes." Minor disputes under the RLA involve the interpretation or application of an existing collective bargaining agreement. (Leu v. Norfolk & Western Ry. Co. (7th Cir.1987) 820 F.2d 825, 828, fn. 7.) A minor dispute " 'contemplates the existence of a collective [bargaining] agreement already concluded or, at any rate, a situation in which no effort is made to bring about a formal change in terms or to create a new one. The dispute relates either to the meaning or proper application of a particular provision with reference to a specific situation or to an omitted case.' " (Consolidated Rail v. Labor Executives (1989) 491 U.S. 299, ---- - ----, 109 S.Ct. 2477, 2480, 105 L.Ed.2d 250, 261-262; see Leu v. Norfolk & Western Ry. Co., supra, 820 F.2d at p. 828, fn. 7; Switchmen's Union of North America v. Southern Pacific Co. (9th Cir.1968) 398 F.2d 443, 445; see also Miller v. Norfolk and Western Ry. Co. (6th Cir.1987) 834 F.2d 556, 561 [remand to determine whether defamation claim required interpretation of collective bargaining agreement].) The RLA's grievance procedures are exclusive; if the act applies, it preempts state and federal courts of subject matter jurisdiction over minor disputes. (Consolidated Rail v. Labor Executives, supra, 491 U.S. at p. ----, 109 S.Ct. at p. 2481, 105 L.Ed.2d at p. 262; see Locomotive Engrs. v. L. & N.R. Co. (1963) 373 U.S. 33, 38, 83 S.Ct. 1059, 1062, 10 L.Ed.2d 172; Leu v. Norfolk & Western Ry. Co., supra, at p. 828.) Any grievance arising out of a collective bargaining agreement is a minor dispute preempted by the act. (Leu v. Norfolk & Western Ry. Co., supra, at p. 829.)

A California appellate court has held that the RLA does not preempt a wrongful termination action brought by a nonunion employee when the dispute does not arise out of a collective bargaining agreement. (Mungo v. UTA French Airlines, supra, 166 Cal.App.3d at pp. 330-332, 212 Cal.Rptr. 369.) Southern Pacific contends that this case was wrongly decided because it failed to consider several cases in which nonunion employees were required to submit[218 Cal.App.3d 11] their claims to the RLA Adjustment Board. However, these cases all involve claims that required the application or interpretation of a collective bargaining agreement. While there are cases that apply the RLA to disputes that do not involve a collective bargaining agreement (see, e.g., Thomas v. New York, Chicago & St. Louis R. Co. (6th Cir.1950) 185 F.2d 614, 616-617), this has not been uniformly done. In a recent case, the Seventh Circuit grappled with this question, ruling that there would be no reason to invoke RLA arbitration if the case presented no issue of the meaning or application of a collective bargaining agreement. The court admitted that the RLA defines the arbitrator's domain as employment disputes growing out of "grievances or out of the interpretation or application of [collective bargaining] agreements," implying that more than contract interpretation is covered. (Lancaster v. Norfolk and Western Ry. Co. (7th Cir.1985) 773 F.2d 807, 814, cert. den. 480 U.S. 945, 107 S.Ct. 1602, 94 L.Ed.2d 788; see 45 U.S.C. § 153, subd. 1(i).) However, the Seventh Circuit found this language to be redundant, holding that a "grievance" was a claim of violation of the collective bargaining agreement. "Congress had no intention of making a grievance a separate basis for arbitration from disputes over the interpretation or application of the collective bargaining contract." (...

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  • Davis v. Farmers Ins. Exch., B257970
    • United States
    • California Court of Appeals
    • March 28, 2016
    ...49 Cal.Rptr.2d 348 [recognizing principle, but affirming order denying fee award]; Luck v. Southern Pacific Transportation Co. (1990) 218 Cal.App.3d 1, 29, 267 Cal.Rptr. 618 [same].) The trial court considered and rejected appellant's request for an award of attorney fees under Code of Civi......
  • Feminist Women's Health Center v. Blythe, No. C011874
    • United States
    • California Court of Appeals
    • August 19, 1993
    ...out of proportion to his or her individual stake in the matter. ( [Citation.]" (Luck v. Southern Pacific Transportation Co. (1990) 218 Cal.App.3d 1, 30, 267 Cal.Rptr. Plaintiff was defending its very existence as a fee for service entity. As plaintiff's customers fell off because of defenda......
  • Pettus v. Cole, Nos. A060253
    • United States
    • California Court of Appeals
    • September 12, 1996
    ...testing. (Semore v. Pool (1990) 217 Cal.App.3d 1087, 266 Cal.Rptr. 280 (Semore ); Luck v. Southern Pacific Transportation Co., supra, 218 Cal.App.3d 1, 267 Cal.Rptr. 618 (Luck ); Wilkinson v. Times Mirror Corp. (1989) 215 Cal.App.3d 1034, 264 Cal.Rptr. 194 (Wilkinson ).) Where the adverse p......
  • Bardis v. Oates, No. C043040.
    • United States
    • California Court of Appeals
    • May 28, 2004
    ...of the partners. Waiver of a contractual right is ordinarily a question of fact. (Luck v. Southern Pacific Transportation Co. (1990) 218 Cal.App.3d 1, 25, 267 Cal.Rptr. 618.) The jury was instructed on the elements of waiver, yet found against Oates. The jury's implied finding against a wai......
  • Request a trial to view additional results
57 cases
  • Davis v. Farmers Ins. Exch., B257970
    • United States
    • California Court of Appeals
    • March 28, 2016
    ...49 Cal.Rptr.2d 348 [recognizing principle, but affirming order denying fee award]; Luck v. Southern Pacific Transportation Co. (1990) 218 Cal.App.3d 1, 29, 267 Cal.Rptr. 618 [same].) The trial court considered and rejected appellant's request for an award of attorney fees under Code of Civi......
  • Feminist Women's Health Center v. Blythe, No. C011874
    • United States
    • California Court of Appeals
    • August 19, 1993
    ...out of proportion to his or her individual stake in the matter. ( [Citation.]" (Luck v. Southern Pacific Transportation Co. (1990) 218 Cal.App.3d 1, 30, 267 Cal.Rptr. Plaintiff was defending its very existence as a fee for service entity. As plaintiff's customers fell off because of defenda......
  • Pettus v. Cole, Nos. A060253
    • United States
    • California Court of Appeals
    • September 12, 1996
    ...testing. (Semore v. Pool (1990) 217 Cal.App.3d 1087, 266 Cal.Rptr. 280 (Semore ); Luck v. Southern Pacific Transportation Co., supra, 218 Cal.App.3d 1, 267 Cal.Rptr. 618 (Luck ); Wilkinson v. Times Mirror Corp. (1989) 215 Cal.App.3d 1034, 264 Cal.Rptr. 194 (Wilkinson ).) Where the adverse p......
  • Bardis v. Oates, No. C043040.
    • United States
    • California Court of Appeals
    • May 28, 2004
    ...of the partners. Waiver of a contractual right is ordinarily a question of fact. (Luck v. Southern Pacific Transportation Co. (1990) 218 Cal.App.3d 1, 25, 267 Cal.Rptr. 618.) The jury was instructed on the elements of waiver, yet found against Oates. The jury's implied finding against a wai......
  • Request a trial to view additional results

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