Rodriguez v. Yellow Cab Cooperative, Inc.

• Decision Date: 15 December 1988
• Docket Number: No. A037738,A037738
• Citation: 206 Cal.App.3d 668,253 Cal.Rptr. 779
• Court: California Court of Appeals Court of Appeals
• Parties: , 112 Lab.Cas. P 11,469 Raul RODRIGUEZ, Plaintiff and Appellant, v. YELLOW CAB COOPERATIVE, INC., Defendant and Respondent.

Page 779

253 Cal.Rptr. 779

206 Cal.App.3d 668, 112 Lab.Cas. P 11,469

Raul RODRIGUEZ, Plaintiff and Appellant, v. YELLOW CAB COOPERATIVE, INC., Defendant and Respondent.

No. A037738.

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

Dec. 15, 1988.

Louis A. Highman, Lawrence Ball, Bruce J. Highman, San Francisco, for plaintiff and appellant.

James J. Meyers, Jr., Meyers, Merrill, Schultz & Wolds, San Francisco, for defendant and respondent.

KLINE, Presiding Justice.

This appeal presents the question whether the National Labor Relations Act bars a

wrongful discharge suit against a former employer.

STATEMENT OF THE CASE

Appellant, Raul Rodriguez, filed a complaint against respondent, Yellow Cab Cooperative, Inc., challenging the termination of his employment. Other causes of action having been dismissed, the two at issue were for wrongful discharge in violation of public policy and in violation of California Labor Code sections 1101 and 1102, which prohibit employers from interfering with the political activities of employees. Both causes of action alleged mental anguish and emotional distress suffered as result of respondent's wrongful conduct.

Respondent moved for summary judgment on the theory, among others, that the National Labor Relations Act (NLRA) preempted the entire action. ¹ The trial court granted the motion. This timely appeal followed.

STATEMENT OF FACTS

The facts pertinent to the issue we address are as follows. Appellant was employed by respondent from November 21, 1977 until his termination on October 19, 1982. During that time he received many warnings concerning refusal to convey passengers in violation of company rules and a San Francisco ordinance. Respondent also warned appellant about complaints it had received about overcharging and insulting passengers, rude conduct at hotels at which he picked up passengers, and tardiness in returning his cab at the end of his shift. Company regulations provided that drivers were subject to discharge upon accumulation of such complaints.

Respondent provided appellant numerous verbal and written warnings that he would be terminated if his work record did not improve. Appellant was suspended twice for refusing to convey passengers. When respondent received two more such complaints in the fall of 1982 it discharged appellant for "repeated refusal to convey and ... many other violations of company rules."

While appellant worked for respondent, he founded a labor organization, the Independent Cab Drivers Association (Union), and organized fellow employees. As president of the Union, appellant filed unfair labor practice charges in behalf of other employees. Appellant claimed to be a "moving force behind the filing" of a class action suit alleging that respondent's taxi cab leasing system violated a local ordinance and inhibited collective bargaining. Finally, appellant testified in behalf of the Union before the California Public Utilities Commission (PUC) in opposition to respondent's application for airport van permits, which he claimed was against the interest of cab drivers.

After being terminated, appellant filed an unfair labor practice charge with the National Labor Relations Board (NLRB), claiming he was discharged in retaliation for his union activities. After investigating the charge, the NLRB refused to issue a complaint on the ground that other employees had been discharged for misconduct similar to that which lead to appellant's termination. Appellant argues that the instant wrongful discharge suit is not based on the allegation that respondent fired him for his union activities. He claims the gravamen of this suit is his allegation that the company fired him in retaliation for his testimony before the PUC, and, to a lesser extent, his instigation of the class action suit--"political" activities assertedly different from the union activities on which he based his unfair labor practice charge. Respondent, on the other hand, argues that the issues raised in the instant complaint are identical to those raised before the NLRB.

DISCUSSION

The NLRA Preempts the Instant Claims

A. Standard of review.

Summary judgment is proper where the papers submitted show there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ.Proc., § 437c, subd. (c).) A defendant who makes the motion must negate a necessary element of the plaintiff's case or establish a complete defense, so that under no hypothesis is there any factual matter requiring a trial. (Vanderbilt Growth Fund, Inc. v. Superior Court (1980) 105 Cal.App.3d 628, 633-634, 164 Cal.Rptr. 621.) On appeal, we must construe the opposing party's evidence liberally, viewed in the light most favorable to that party. (Malmstrom v. Kaiser Aluminum & Chemical Corp. (1986) 187 Cal.App.3d 299, 313, 231 Cal.Rptr. 820.)

A motion for summary judgment tests the sufficiency of the pleadings and a judgment for the defendant should be affirmed if the plaintiff cannot state a cause of action. (Barnett v. Delta Lines, Inc. (1982) 137 Cal.App.3d 674, 682, 187 Cal.Rptr. 219; Johanson Transportation Service v. Rich Pik'd Rite, Inc. (1985) 164 Cal.App.3d 583, 588, 210 Cal.Rptr. 433.) If there was any legal basis upon which the trial court could have granted summary judgment, we must affirm its order even if it used an incorrect ground for its decision. (9 Witkin, California Procedure (3d ed. 1985) §§ 259-261, subd. (d), pp. 266-268.) Hence, although the trial court did not address respondent's argument that the NLRA preempted appellant's suit for wrongful discharge, we address the issue because we find it dispositive.

B. Appellant's political activities are arguably protected by the NLRA.

The NLRA does not explicitly provide for preemption, so courts must look to Congressional intent. (Metropolitan Life Ins. Co. v. Massachusetts (1985) 471 U.S. 724, 747, 105 S.Ct. 2380, 2393, 85 L.Ed.2d 728.) " ' "[C]ourts 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, supra, 471 U.S. at pp. 747-748, 105 S.Ct. at p. 2393, quoting Allis-Chalmers Corp. v. Lueck (1985) 471 U.S. 202, 209, 105 S.Ct. 1904, 1910, 85 L.Ed.2d 206, quoting Malone v. White Motor Corp. (1978) 435 U.S. 497, 504, 98 S.Ct. 1185, 1190, 55 L.Ed.2d 443.)

In San Diego Unions v. Garmon (1959) 359 U.S. 236, 245, 79 S.Ct. 773, 780, 3 L.Ed.2d 775, the Supreme Court enunciated what has come to be known as the Garmon rule of preemption, which protects the exclusive jurisdiction of the NLRB over unfair labor practices: "When an activity is arguably subject to [section] 7 or [section] 8 of the [NLRA] ² the States as well as the federal courts must defer to the exclusive competence of the [NLRB]...." However, Garmon recognized that the "federal system" allows state regulation of activities of "peripheral concern to the Labor Management Relations Act. [Citation.] Or where the regulated conduct touched interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act." (Id., at pp. 243-244, 79 S.Ct. at p. 779, fn. omitted.) Even if the NLRB declines to act, a state court may not assert jurisdiction over an unfair labor practice. (Guss v. Utah Labor Board (1957) 353 U.S. 1, 8, 77 S.Ct. 598, 601, 1 L.Ed.2d 601.) ³

Section 7 guarantees employees the right to self-organize, bargain collectively and "engage in other concerted activities for the purpose of collective bargaining or other mutual aid and protection...." Section 8 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. We must determine whether the NLRB has exclusive jurisdiction over the conduct at issue, the alleged discharge in violation of public policy and California Labor Code sections 1101 and 1102. More specifically, we must decide if the activities for which appellant claimed he was fired--his testimony before the PUC or his involvement in the class action lawsuit against respondent--were (1) concerted and (2) for the purpose of collective bargaining or mutual aid and protection.

First, there is no doubt that the activities were "concerted" within the meaning of the NLRA. The lawsuit was filed on behalf of the Union, with the express purpose of remedying conduct claimed to undermine the collective bargaining process. At the PUC hearing appellant not only declared that he represented the Union but specifically addressed the subject of cab driver job security and other issues of concern to Union members. ⁴

Next, we examine the goal of the activities in question to determine whether they fall within the ambit of section 7. Arguably, the stated purpose of the class action lawsuit--ending "practices ... [which] imping[e] upon the bargaining position of [the] employees and [the Union]"--made it an activity "for the purpose of collective bargaining." However, as there is no indication the Union and the company were then bargaining, it is more likely the lawsuit, if protected at all, came under the "other mutual aid and protection" prong of section 7. The testimony before the PUC could only be protected by this prong.

In Eastex, Inc. v. NLRB (1978) 437 U.S. 556, 98 S.Ct. 2505, 57 L.Ed.2d 428, the union distributed a newsletter urging employees to write their legislators opposing inclusion of the Texas right-to-work law in the State constitution and discussing the President's veto of a federal minimum wage bill. The Supreme Court pointed out that the " 'mutual aid or protection' clause protects employees from retaliation when they seek to improve working conditions through resort to...