Tamburello v. Comm-Tract Corp.

• Decision Date: 02 August 1995
• Docket Number: No. 95-1295,COMM-TRACT,95-1295
• Citation: 67 F.3d 973
• Parties: 150 L.R.R.M. (BNA) 2449, 64 USLW 2288, 130 Lab.Cas. P 11,422, RICO Bus.Disp.Guide 8902 Vincent R. TAMBURELLO, Plaintiff-Appellant, v.CORPORATION, John F. Polmonari, Edward Menard, and Steven Dickie, Defendants-Appellees. First Circuit. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 973

67 F.3d 973

150 L.R.R.M. (BNA) 2449, 64 USLW 2288,

130 Lab.Cas. P 11,422,

RICO Bus.Disp.Guide 8902

Vincent R. TAMBURELLO, Plaintiff-Appellant, v. COMM-TRACT CORPORATION, John F. Polmonari, Edward Menard, and Steven Dickie, Defendants-Appellees.

No. 95-1295.

United States Court of Appeals,First Circuit.

Heard Aug. 2, 1995.

Decided Oct. 2, 1995.

Matthew Cobb, Boston, MA, with whom Law Office of Matthew Cobb, was on brief for appellant.

Timothy P. Van Dyck, with whom Joshua L. Ditelberg and Edwards & Angell, Boston, MA, were on brief for appellees.

Before TORRUELLA, Chief Judge, LYNCH, Circuit Judge, and CASELLAS, ^* District Judge.

TORRUELLA, Chief Judge.

Vincent Tamburello (Tamburello) appeals the dismissal of his complaint against his employer, Comm-Tract Corporation (Comm-Tract), and several individuals who were his supervisors at Comm-Tract. Tamburello alleges that his supervisors engaged in a course of harassment in retaliation for his union activities as a union steward, and seeks damages under, inter alia, the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Sec. 1962(c) (1988), and the Massachusetts Civil Rights Act (MCRA), Mass.Gen.L. ch. 12, Sec. 11I (1988). The district court found that Tamburello's claims are preempted by the National Labor Relations Act, as amended, 29 U.S.C. Secs. 151-161 (1988) (NLRA), and therefore dismissed his complaint for failure to state a claim upon which relief may be granted, Fed.R.Civ.P. 12(b)(6). We affirm.

BACKGROUND

We review the dismissal de novo, considering only those facts alleged in the complaint, and drawing all reasonable inferences therefrom. Lessler v. Little, 857 F.2d 866, 867 (1st Cir.1988). We will affirm the dismissal "only if it appears beyond doubt that [Tamburello] can prove no set of facts which would entitle him to relief." Id. (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)).

In July 1991, Tamburello became a union steward at Comm-Tract. He alleges that soon afterwards the individual defendants--the president, general manager, and manager of Comm-Tract--began harassing, threatening and intimidating him. Specifically,

                Tamburello alleges that they pulled him off favorable jobs, replacing him with less skilled workers;  gave him menial job assignments;  withheld his personnel file from him;  took him off jobs to deny him overtime pay;  made him take a forced vacation or face termination;  took away his company vehicle;  and made threatening anti-union statements.  Tamburello alleges that these actions "were solely to harass, embarrass, coerce, and intimidate [him] into giving up his Steward position with the Union."   As a result of this intimidation, Tamburello resigned his position with Comm-Tract in May 1993, and subsequently instituted this action
                

DISCUSSION

Count I of Tamburello's complaint alleges that the individual defendants conducted the affairs of an enterprise, Comm-Tract, through a pattern of Hobbs Act extortion of Tamburello's property rights, in violation of RICO, 18 U.S.C. Sec. 1962(c). Count II alleges that the individual defendants conspired to violate RICO by knowingly joining the enterprise and by committing, or agreeing to commit at least two acts of racketeering. Count IV alleges that all defendants violated Tamburello's rights under the MCRA. ¹ We address the RICO claims first.

I. The RICO Claims

Tamburello alleges that the actions of his supervisors at Comm-Tract constituted a pattern of extortion to deprive him of his rights to speak out on union matters, his rights under the collective-bargaining agreement, and his right to his job. The district court held that Tamburello's RICO claims are preempted by the NLRA, which "pre-empts state and federal court jurisdiction to remedy conduct that is arguably protected or prohibited by the Act." Amalgamated Ass'n of Street, Elec. Ry. & Motor Coach Employees v. Lockridge, 403 U.S. 274, 276, 91 S.Ct. 1909, 1913, 29 L.Ed.2d 473 (1971) (citing San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 244, 79 S.Ct. 773, 779, 3 L.Ed.2d 775 (1959)).

The NLRA "is a comprehensive code passed by Congress to regulate labor relations in activities affecting interstate and foreign commerce." Nash v. Florida Indus. Comm'n, 389 U.S. 235, 238, 88 S.Ct. 362, 365, 19 L.Ed.2d 438 (1967). The NLRA reflects congressional intent to create a uniform, nationwide body of labor law interpreted by a centralized expert agency--the National Labor Relations Board (NLRB). Accordingly, the NLRA vests the NLRB with primary jurisdiction over unfair labor practices. See 29 U.S.C. Sec. 158. Applying these principles, the Garmon Court held that "[w]hen an activity is arguably subject to Sec. 7 or Sec. 8 of the [NLRA], the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted." Garmon, 359 U.S. at 245, 79 S.Ct. at 780. The Court has interpreted this to mean that, "as a general rule, neither state nor federal courts have jurisdiction over suits directly involving 'activity [which] is arguably subject to Sec. 7 or Sec. 8 of the Act.' " Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967) (emphasis added; and quoting Garmon, 359 U.S. at 245, 79 S.Ct. at 779-80). See also Morgan v. Massachusetts General Hosp., 901 F.2d 186, 194 (1st Cir.1990) ("as a general rule, the [NLRB] has 'exclusive jurisdiction to find, prevent, and rectify unfair labor practices' ") (quoting New Mexico Dist. Council of Carpenters, AFL-CIO v. Mayhew Co., 664 F.2d 215 (10th Cir.1981); and collecting cases). A primary justification of the preemption doctrine is "the need to avoid conflicting rules of substantive law in the labor relations area and the desirability of leaving the development of such rules to the administrative agency created by Congress for that purpose...." Vaca, 386 U.S. at 180-81, 87 S.Ct. at 912. ²

The alleged wrongful conduct in this case is arguably prohibited by the NLRA. Section 8(a)(3) of the NLRA makes it unlawful for an employer "by discrimination in regard to hire or tenure of employment ... to encourage or discourage membership in any labor organization." 29 U.S.C. Sec. 158(a)(3). The ultimate question presented by Tamburello's claims is whether his supervisors at Comm-Tract intimidated, coerced, threatened, and harassed him into quitting his job in retaliation for his union activities as a union steward. It is beyond dispute that these allegations, if found to be true, would constitute a violation of the NLRA. See Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 894, 104 S.Ct. 2803, 2809-10, 81 L.Ed.2d 732 (1983) (an employer violates Sec. 8(a)(3) "when, for the purposes of discouraging union activity, ... it purposefully creates working conditions so intolerable that the employee has no option but to resign"). ³ Unless an exception applies, therefore, Tamburello's RICO claims are subject to the NLRB's primary jurisdiction.

There are three generally recognized exceptions to the NLRB's primary jurisdiction. The first is where Congress has expressly carved out an exception to the NLRB's primary jurisdiction. Vaca, 386 U.S. at 179-80, 87 S.Ct. at 910-12 (citing cases); Brennan v. Chestnut, 973 F.2d 644, 646 (8th Cir.1992). Congress has not made an exception to the NLRB's primary jurisdiction for claims alleging extortion. Indeed, the only labor-related "racketeering" activity expressly listed as predicates to liability under RICO are actions concerning restrictions of payments and loans to labor organizations, or those relating to embezzlement from labor funds. See 18 U.S.C. Sec. 1961(1)(C); 29 U.S.C. Secs. 186, 501(c). The specific exceptions carved out in Secs. 186 and 501(c) support the conclusion that Congress intended that "violations of labor laws other than Sec. 186 [or Sec. 501(c) ] alleged as predicate acts are preempted." Brennan, 973 F.2d at 647 (citing Butchers' Union, Local No. 498 v. SDC Inv., Inc., 631 F.Supp. 1001 (E.D.Cal.1986)). This exception therefore does not apply.

The second exception applies when the regulated activity touches "interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction," courts "could not infer that Congress had deprived the States of the power to act." Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180, 195, 98 S.Ct. 1745, 1756, 56 L.Ed.2d 209 (1977) (quoting Garmon 359 U.S. at 244, 79 S.Ct. at 779). This exception is inapplicable to plaintiff's RICO claims because they involve the relationship between two federal laws, as opposed to a state and a federal law.

The third exception holds that the NLRB's exclusive jurisdiction does not apply if the regulated activity is merely a peripheral or collateral concern of the labor laws. Vaca, 386 U.S. at 179-80, 87 S.Ct. at 910-12; Brennan, 973 F.2d at 646. Under this exception, federal courts may decide labor questions that emerge as collateral issues in suits brought under statutes providing for independent federal remedies. Connell Construction Plaintiff's allegations arguably establish violations of both RICO and the NLRA--extortion on the one hand, and unfair labor practices on the other. We must determine whether the issues raised by Tamburello's potential unfair labor practice claims are merely collateral to the issues raised by his RICO extortion claims. In making this determination, several federal courts take the position that courts must defer to the primary jurisdiction of the NLRB if the underlying conduct of the RICO claim is wrongful only by virtue of, or reference to, the labor laws. See Brennan, 973 F.2d at 646; Talbot, 961 F.2d at 662; Mann v. Air Line Pilots Assoc., 848 F.Supp. 990, 993 (S.D.Fla.1994); McDonough v. Gencorp, Inc., 750 F.Supp. 368, 370 (S.D.Ill.1990). One federal court has framed the issue as follows:

21 U.S. at 626, 95 S.Ct. at...