Luke v. Collotype Labels Usa, Inc.

• Decision Date: 18 January 2008
• Docket Number: No. A116544.,A116544.
• Citation: 159 Cal.App.4th 1463,72 Cal.Rptr.3d 440
• Court: California Court of Appeals Court of Appeals
• Parties: Richard B. LUKE, Plaintiff and Appellant, v. COLLOTYPE LABELS USA, INC., Defendant and Respondent.

72 Cal.Rptr.3d 440

159 Cal.App.4th 1463

Richard B. LUKE, Plaintiff and Appellant, v. COLLOTYPE LABELS USA, INC., Defendant and Respondent.

No. A116544.

Court of Appeal, First District, Division 4.

January 18, 2008.

Randal Matthew Barnum, Walnut Creek, for Plaintiff and Appellant.

Brandon Robert Blevans, Mario S. Cohen, Dickenson, Peatman & Fogarty, PC, Napa, for Defendant and Respondent.

RUVOLO, P.J.

I. INTRODUCTION

Richard B. Luke (Luke) appeals from a summary judgment in favor of Collotype Labels. USA, Inc. (Collotype). Luke brought the underlying action for wrongful termination in violation of public policy against Collotype. The trial court granted Collotype's motion for summary judgment on the basis that Luke's claims were preempted by the National Labor Relations. Act¹ (NLRA). We affirm.

II. PROCEDURAL BACKGROUND

Luke filed a complaint against Collotype in which he alleged two causes of action for wrongful termination in violation of public policy, one based on Labor Code² section 923, and the other on section 232.5. Collotype filed a motion for summary judgment, based on the sole ground that both causes of action were preempted by the NLRA. The court granted the motion and entered judgment in Collotype's favor, finding that the complaint alleged "nothing more than unfair labor practices that are preempted by federal law and, therefore, are not properly heard in this tribunal." This timely appeal followed.

III. FACTUAL BACKGROUND

The facts set forth in Collotype's separate statement of material facts in support of its motion for summary judgment are undisputed. Collotype manufactures premium wine and liquor labels. It has sales volume in excess of $19 million, and employs 70 people in Napa. It hired Luke as a maintenance engineer in 2003.

On September 6, 2005,³ Collotype suspended Luke for three days based on the allegation that Luke was not honest about having his position covered during a planned absence. Luke disagreed with Collotype's allegation, asserting he had been available by cell phone. On September 8th, Luke sent an e-mail to Nigel Vinecombe, the group managing director for Collotype's office in Australia, titled "trouble brewing." In it, Luke stated: "Sorry to bother you. I usually go through my chain of command, but this will not work here at this plant. Would you please call me?"

On September 9th, Collotype terminated Luke's employment. The company gave him a termination memorandum which stated in part: "People have come forward and let us know that you have been soliciting signatures for a letter denouncing the management of the company. You are making your peers uncomfortable and clearly being insubordinate. [¶] You also sent an e-mail to' the Group Managing Director in Australia, without consulting anybody on the U.S. management team proclaiming that there was `trouble brewing.' [¶] Your behavior over the past couple of weeks is extremely disturbing to those around you and cannot be tolerated. The team environment [at] Collotype is essential, and we cannot have people bringing others down in an intentional effort to undermine the company. [¶] Effective today, your employment at Collotype is being terminated for blatant insubordination and conduct detrimental to the team."

In his complaint, Luke alleged that two of Collotype's employees "had expressed concerns to [him] about certain unfavorable working conditions.... [Luke] verbally told [the employees] that they should keep a record of problems they encountered and express their concerns to management.... [Collotype] apparently learned that [Luke] was a `sympathetic car' for the complaints of certain employees." At his deposition, Luke testified that he believed Collotype terminated his employment because he "provid[ed] support and ideas to other employees who complained about working conditions and being passed over for promotions, and ... so that [Collotype] could hire another individual, Vance Jones, to take [Luke's] position." He also testified that other employees complained to him about "certain working conditions such as heat, bathroom availability, no seating during breaks and lunch, and promotion decisions."

IV. DISCUSSION

Luke asserts that the trial court erred in granting Collotype's motion for summary judgment on his cause of action ha[ve] limited it to include only those claims for wrongful termination in violation of the public policy set forth in section 232.5.⁴ We review "`the record de novo and independently determin[e] whether [the] decision is correct. [Citation.]' ..." (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 418, 42 Cal.Rptr.3d 807.) We "`independently determine the construction and effect of the facts presented to the trial judge as a matter of law.'" (City of West Hollywood v. 1112 Investment Co. (2003) 105 Cal.App.4th 1134, 1142, 130 Cal. Rptr.2d 168, citing Rosse v. DeSoto Cab Co. (1995) 34 Cal.App.4th 1047, 1050, 40 Cal.Rptr.2d 680.)

Luke alleged that his termination violated the following public policy, set forth in section 232.5: "No employer may do any of the following: ... Discharge, formally discipline, or otherwise discriminate against an employee who discloses information about the employer's working conditions." (232.5, subd. (c).) Collotype concedes for the purposes of this appeal that "Section 232.5 states a sufficient policy on which to base [Luke's] Second Cause of Action." The only issue, then, is whether Luke's cause of action for wrongful termination, in violation of a public policy of this state, is preempted by the NRLA.⁵ (See Kelecheva, supra, 18 Cal.App.4th at p. 527, 22 Cal.Rptr.2d 453.)

A. NLRA Preemption

The preemption doctrine is derived from the supremacy clause, which states that "`the laws of the United States ... shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.' ..." (Morrison v. Viacom, Inc. (1997) 52 Cal.App.4th 1514, 1519, 61 Cal. Rptr.2d 544, citing U.S. Const., art. VI, § 2, some original capitalization omitted.) "Where the pre-emptive effect of federal enactments is not explicit, `courts sustain a local regulation "unless it conflicts with federal law or would frustrate the federal scheme, or unless the courts discern from the totality of the circumstances that Congress sought to occupy the field to the exclusion of the States."'... (Metropolitan Life Ins. Co. v. Massachusetts (1985) 471 U.S. 724, 747-748, 105 S.Ct. 2380, 85 L.Ed.2d 728, citing Allis-Chalmers Corp. v. Lueck (1985) 471 U.S. 202, 209, 105 S.Ct. 1904,85 L.Ed.2d 206.)

While the NLRA contains no express preemption provision, the Supreme Court mandates that state courts "must defer to the exclusive competence of the National Labor Relations Board in cases in which the activity that is the subject matter of the litigation is arguably subject to the protections of [section] 7 or the prohibitions of [section] 8 of the [NLRA]." (Linn v. Plant Guard Workers (1966) 383 U.S. 53, 60, 86 S.Ct. 657, 15 L.Ed.2d 582 (Linn).) Section 7 of the NLRA guarantees employees: "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection...." (29 U.S.C. § 157.) Section 8 of the NLRA makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in" section 7. (29 U.S.C. § 158(a)(1).)

B. Concerted Activities Under the NLRA

Luke argues that his cause of action should not be preempted because his discussions with other employees regarding working conditions were not "concerted activities" protected by the NLRA. Collotype maintains "allegations of the same conduct ... would constitute an unfair labor practice under the NLRA." Specifically, it claims the conduct for which Luke was terminated fell into the category of other "concerted activities for the purpose of ... other mutual aid or protection...." (29 U.S.C. § 157.)

Discussions among employees regarding their working conditions have been held to be protected activity under the NLRA. For example, in Aroostook County v. N.L.R.B. (D.C.Cir.1996) 81 F.3d 209 (Aroostook), the employer "conditioned the rehiring of the fired employees upon their agreement that they would bring all of their complaints to [him], that they would avoid any discussions with particular employees, and that they would cease all `gossiping and complaining' amongst themselves." (Id. at p. 215.) The court held `"[t]he effect that these conditions likely would have had on the employees' ability to engage in behavior that is protected under the NLRA is so obvious that [the employer] has not seriously attempted to defend the legitimacy of the conditions as imposed." (Ibid.) Luke attempts to distinguish this case, claiming that "the court in Aroostook held that a rule requiring employee grievances to be discussed in private and only with managers or employers was not, in itself, an unfair labor practice." The issue of the employer's rules was a separate issue from the conditions on rehiring the fired employees. Aroostook explained, that "[i]n a small medical practice, such as [here,] the employer has unique concerns about employees acting in a way that might disturb patients; in this situation, a rule prohibiting employees from voicing complaints in front of patients is neither surprising nor unlawful. [Citation.]" (Id. at p. 213.) Employee discussions among themselves regarding working conditions, however, were held to be protected under the NLRA. (Id. at p. 215.)

Likewise, in Needell and McGione, P.C. (1993) 311 NLRB 455, 1993 WL 186123, a law firm terminated a clerical worker because she was "being a spokesperson and a ringleader for other secretaries and trying to alienate them from...