Vincent v. Trend Western Technical Corp.

• Decision Date: 22 September 1987
• Docket Number: No. 85-6562,85-6562
• Citation: 828 F.2d 563
• Parties: 126 L.R.R.M. (BNA) 2451, 56 USLW 2231, 108 Lab.Cas. P 10,244, 2 Indiv.Empl.Rts.Cas. 1035 Edward Lee VINCENT, Plaintiff-Appellant, v. TREND WESTERN TECHNICAL CORPORATION and Does 1 to 5, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 563

828 F.2d 563

126 L.R.R.M. (BNA) 2451, 56 USLW 2231,

108 Lab.Cas. P 10,244,

2 Indiv.Empl.Rts.Cas. 1035

Edward Lee VINCENT, Plaintiff-Appellant, v. TREND WESTERN TECHNICAL CORPORATION and Does 1 to 5 Defendants-Appellees.

No. 85-6562.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 5, 1986.

Decided Sept. 22, 1987.

Carl B. Pearlston, Jr., Torrance, Cal., for plaintiff-appellant.

Pamela J. Thomason, Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before WALLACE, SNEED and SCHROEDER, Circuit Judges.

WALLACE, Circuit Judge:

Vincent appeals the district court's dismissal of his action for wrongful discharge and deprivation of constitutional rights. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We affirm in part, and vacate and remand in part.

I

Between August 10, 1981, and June 7, 1982, Vincent was employed by the Trend Western Technical Management Corp. (Trend) as a work control specialist. Trend had a contract with the United States Air Force to perform certain maintenance services at an Air Force base. Vincent alleges that, while employed by Trend, he informed government inspectors and investigators that Trend was engaged in a series of illegal practices in violation of the terms of its contract with the government. Vincent claims further that Trend discharged him in retaliation for his refusal to "participate silently" in these practices and for reporting them to the government.

While employed by Trend, Vincent was represented by Local 501 of the International Union of Operating Engineers, AFL-CIO. Vincent filed a grievance regarding his dismissal, which was resolved adversely to him. On June 23, 1982, the union informed Trend that it would not take the claim to arbitration.

Nearly two years after his dismissal, Vincent filed a wrongful termination action against Trend in California state court. Trend removed the action to the federal district court, which permitted Vincent to file an amended complaint. The complaint asserted claims for wrongful termination under California Labor Code Sec. 2856 and for the violation of Vincent's federal constitutional rights. Trend then successfully moved to dismiss Vincent's action with prejudice.

II

We treat first Vincent's wrongful termination claim. The district court held, on the basis of our decision in Olguin v. Inspiration Consolidated Copper Co., 740 F.2d 1468 (9th Cir.1984) (Olguin ), that this claim was preempted by federal labor law. Vincent argues that his claim can be distinguished from Olguin, and that we should instead apply our holding in Garibaldi v. Lucky Food Stores, Inc., 726 F.2d 1367 (9th Cir.1984) (Garibaldi ), cert. denied, 471 U.S. 1099, 105 S.Ct. 2319, 85 L.Ed.2d 839 (1985), and reverse the district court. Trend argues that Vincent's claim is preempted both by section 8 of the National Labor Relations Act (NLRA), 29 U.S.C. Sec. 158, and by section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. Sec. 185. We review these issues of law de novo. See United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

In Farmer v. United Brotherhood of Carpenters and Joiners, 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338 (1977) (Farmer ), the Supreme Court set forth a balancing test for us to use in determining whether the NLRA preempts a state tort claim brought by an employee against his union. In Garibaldi, we extended the application of the Farmer balancing test to determinations of preemption under section 301 of the LMRA. Garibaldi, 726 F.2d at 1369, 1373-75. In Olguin, we followed Garibaldi and applied the same balancing test to a claim for wrongful discharge in violation of state public policy, concluding that the action was preempted by section 301. Olguin, 740 F.2d at 1473, 1475.

Subsequent to our decisions in Garibaldi and Olguin, however, the Supreme Court in Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985) (Allis-Chalmers ), established a test differing from the Farmer NLRA preemption test for determining preemption under section 301 of the LMRA. See id. at 212 n. 6, 105 S.Ct. at 1911 n. 6. In the district court, Trend argued that Vincent's state law claim was preempted by section 301. The district court should have applied the Allis-Chalmers test to resolve this issue. See International Brotherhood of Electrical Workers, AFL-CIO v. Hechler, --- U.S. ----, 107 S.Ct. 2161, 95 L.Ed.2d 791 (1987); Harper v. San Diego Transit Corp., 764 F.2d 663, 667-69 (9th Cir.1985); Scott v. Machinists Automotive Trades District Lodge No. 190, 815 F.2d 1281, 1283 (9th Cir.1987); Tellez v. Pacific Gas & Electric Co., 817 F.2d 536, 537 (9th Cir.1987). Instead, it analogized the case to Olguin, even though Olguin, decided prior to Allis-Chalmers, had not applied the new Allis- Chalmers test. We therefore must vacate the district court's judgment to the extent it rests upon the conclusion that Vincent's claim was preempted by section 301 and remand for reconsideration in light of Allis-Chalmers.

Trend also argues that Vincent's claim is preempted by section 8 of the NLRA, 29 U.S.C. Sec. 158. Although this argument was raised for the first time on appeal, we must address it because NLRA preemption affects the choice of forum, not merely the choice of law. International Longshoremen's Association, AFL-CIO v. Davis, 476 U.S. 380, 106 S.Ct. 1904, 1907, 90 L.Ed.2d 389 (1986); Johnson v. Armored Transport of California, Inc., 813 F.2d 1041, 1043-44 (9th Cir.1987). Trend contends that Vincent's claim is preempted because "in the context of a collective bargaining agreement, discharging an individual employee for refusing to violate the law" represents interference with a protected concerted activity under section 7 of the Act, 29 U.S.C. Sec. 157. The parties do not dispute that if Vincent was discharged for engaging in a protected concerted activity, his complaint was within the exclusive jurisdiction of the National Labor Relations Board and was properly dismissed. See Buscemi v. McDonnell Douglas Corp., 736 F.2d 1348, 1350 (9th Cir.1984) (Buscemi ). The question is whether Vincent's action constitutes a protected concerted activity.

Trend argues that Vincent's reporting of perceived illegalities to federal authorities was protected concerted activity under our decisions in Buscemi and Garcia v. NLRB, 785 F.2d 807 (9th Cir.1986) (Garcia ). We find neither case controlling. In Buscemi, the plaintiff alleged that he had been discharged in retaliation for circulating petitions and voicing employee complaints. We observed that "[a]ctivities to redress complaints about working conditions" are concerted protected activities. Id. at 1350. Vincent, in contrast, merely reported some allegedly illegal activities of his employer. There is no indication in his complaint or elsewhere that his reports in any way involved working conditions.

Nor does reliance on Garcia help Trend. In Garcia, we found that disciplining an employee for refusing to violate state law contravened section 8(a)(1) of the NLRA because it represented punishment for a protected concerted activity. 785 F.2d at 810. In reaching this result, we relied on the Supreme Court's opinion in NLRB v. City Disposal Systems, Inc., 465 U.S. 822, 104 S.Ct. 1505, 79 L.Ed.2d 839 (1984) (City Disposal ). Garcia, 785 F.2d at 810-11. City Disposal and Garcia, however, both involved employees whose collective bargaining agreements provided that they would not be required to violate either traffic laws or safety regulations. See City Disposal, 465 U.S. at 824-25, 104 S.Ct. at 1507; Garcia, 785 F.2d at 809. The refusal of these employees to violate the law was thus grounded upon the terms of their collective bargaining agreements. It was because their refusal to violate the law represented a part of "the process of enforcing [the collective-bargaining] agreement" that this refusal constituted protected concerted activity. City Disposal, 465 U.S. at 840, 104 S.Ct. at 1515; see also Garcia, 785 F.2d at 809-11.

Vincent's collective bargaining agreement, in contrast, contains nothing that we could construe as stating that he would not have to "participate silently" in illegal practices. Vincent's right not to become involved in, or to report, such activities stems from sources other than his collective bargaining agreement. Thus, reporting his employer did not serve to assert or enforce a right given Vincent by this agreement. Trend does not argue that Vincent's actions in any other manner represented "concerted activities for the purpose of collective bargaining" within the meaning of section 7. His actions therefore do not constitute protected concerted activity within the meaning of section 7 of the NLRA.

Because the NLRA is inapplicable and irrelevant to the situation presented by Vincent's state law claim, the NLRA does not preempt it. Therefore, as indicated earlier, we must remand Vincent's state claim to the district court to determine whether it is preempted by section 301 in light of Allis-Chalmers.

III

Vincent's amended complaint also asserts a claim for damages for Trend's violation of his constitutional rights and alleges facts to establish that Trend was acting as an "agency" of the federal government. See Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Specifically, Vincent alleges that Trend

fulfilled the traditional governmental function of repair and maintenance of the United States Air Force Station; performed services at the United States Air Force Station under supervision by officers and agents of the United States Government and purportedly in compliance with federal laws and regulations; conducted its personnel relations subject to federal laws and regulations; and received all of its revenues from the United States...