Weise v. Washington Tru Solutions, LLC, 27,757.

CourtCourt of Appeals of New Mexico
Citation192 P.3d 1244,2008 NMCA 121
Docket NumberNo. 27,757.,27,757.
PartiesMarvin J. WEISE and Martha J. Weise, Plaintiffs-Appellants, v. WASHINGTON TRU SOLUTIONS, LLC, Defendant-Appellee.
Decision Date07 August 2008
192 P.3d 1244
2008 NMCA 121
Marvin J. WEISE and Martha J. Weise, Plaintiffs-Appellants,
No. 27,757.
Court of Appeals of New Mexico.
August 7, 2008.

[192 P.3d 1246]

W.T. Martin, Jr., Martin Law Firm, Carlsbad, NM, for Appellants.

Luis G. Stelzner, Kim A. Griffith, Sheehan, Sheehan & Stelzner, P.A., Albuquerque, NM, for Appellee.



{1} Plaintiffs Marvin J. and Martha J. Weise (Plaintiffs) appeal from the district court's order granting summary judgment in favor of Defendant Washington Tru Solutions, LLC (WTS). Our resolution of this case requires us to evaluate whether Plaintiffs' claims are preempted by the National Labor Relations Act (NLRA), 29 U.S.C. §§ 151-169 (2000). We hold that two of the claims — intentional infliction of emotional distress (IIED) and defamation — are preempted by the NLRA. Although it is not clear whether Plaintiffs' third claim — for retaliatory discharge — is preempted, that claim fails under New Mexico law because Marvin Weise (Marvin) was not an at — will employee. Martha Weise's (Martha's) claim for loss of consortium also fails because there are no tenable claims from which it could be derived. Accordingly, we affirm.


{2} "Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law." Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582; see Davis v. Bd. of County Comm'rs, 1999-NMCA-110, ¶ 11, 127 N.M. 785, 987 P.2d 1172. We resolve all reasonable inferences in favor of the party opposing summary judgment, and we view

192 P.3d 1247

the pleadings, affidavits, depositions, answers to interrogatories, and admissions in the light most favorable to a trial on the merits. See Ocana v. Am. Furniture Co., 2004-NMSC-018, ¶ 22, 135 N.M. 539, 91 P.3d 58; Celaya v. Hall, 2004-NMSC-005, ¶ 7, 135 N.M. 115, 85 P.3d 239. Once the movant makes a prima facie case for summary judgment, "the burden shifts to the party opposing the motion to demonstrate the existence of specific evidentiary facts which would require trial on the merits." Roth v. Thompson, 113 N.M. 331, 335, 825 P.2d 1241, 1245 (1992). We apply a de novo standard of review to the district court's decision granting or denying summary judgment. Self, 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582.


{3} We set forth the facts in the light most favorable to Plaintiffs, the non-moving parties. See Celaya, 2004-NMSC-005, ¶ 7, 135 N.M. 115, 85 P.3d 239. Marvin was employed by WTS as a waste handler at the Waste Isolation Pilot Plant. While employed by WTS, Marvin was an active member of the Paper, Allied-Industrial, Chemical & Energy Workers International Union, Local 4-9477 (PACE). In his capacity as a member of PACE and shop steward, he filed grievances against WTS based on its alleged violations of the Collective Bargaining Agreement (CBA) with PACE. Marvin also filed unfair labor practices charges against WTS with the National Labor Relations Board (NLRB). He alleged that WTS violated Section 7 of the NLRA, in part by retaliating against him for his membership in, or activities on behalf of, PACE. The NLRB consolidated Marvin's claims for purposes of issuing a complaint and scheduling a hearing. Eventually, however, Marvin and WTS entered into a non-NLRB settlement, and Marvin agreed to withdraw the charges and the two related grievances.

{4} Several months after the settlement, Marvin was suspended for three days for allegedly violating certain rules of conduct. He filed a grievance based upon the suspension, and the grievance was resolved — in Marvin's favor — through arbitration, which was required by the CBA. While this grievance was pending, WTS fired Marvin based on allegations that he did not follow certain procedures. Marvin filed another grievance and asserted that his discharge constituted unjust discipline in violation of the CBA. This grievance was resolved through a non-NLRB compromise settlement. Marvin agreed to withdraw the grievance in exchange for a monetary settlement from WTS.

{5} Plaintiffs then filed a complaint against WTS in state court in which Marvin alleged retaliation for whistle-blowing, defamation, and IIED. In the same complaint, Martha, Marvin's wife at the time, sought damages for loss of consortium. Both Plaintiffs and WTS filed motions for summary judgment. The district court entered summary judgment in favor of WTS and denied Plaintiffs' motion for partial summary judgment. The district court determined that all of Marvin's claims were barred by the doctrine of preemption because the claims fell within the purview of the NLRA. The district court also concluded that Martha's loss of consortium claim was barred because it was dependent upon the underlying suit. We include additional facts where relevant in discussing Plaintiffs' claims.


{6} Plaintiffs make three arguments on appeal: (1) the IIED, defamation, and retaliatory discharge claims are not preempted by federal law; (2) because those claims are not preempted, Martha's loss of consortium claim is not barred; and (3) the district court improperly denied Plaintiffs' motion for partial summary judgment, which was based on a collateral estoppel theory. We address each argument in turn, beginning with preemption.

A. Preemption

{7} WTS contends, and the district court agreed, that Plaintiffs' claims are preempted by Sections 7 and 8 of the NLRA. Plaintiffs argue in response that the NLRA does not preempt their claims and, in addition, that the preemption analysis should be performed under Section 301 of the Labor-Management Relations Act (LMRA). 29 U.S.C. § 185(a)

192 P.3d 1248

(2000). We first consider whether Plaintiffs' claims are preempted by the NLRA.

{8} "When an activity is arguably subject to [Section] 7 or [Section] 8 of the [NLRA], the States as well as the federal courts must defer to the exclusive competence of the [NLRB] if the danger of state interference with national policy is to be averted." San Diego Bldg. Trades Council, Millmen's Union, Local 2020 v. Garmon, 359 U.S. 236, 245, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959); see Local 926, Int'l Union of Operating Eng'rs v. Jones, 460 U.S. 669, 676, 103 S.Ct. 1453, 75 L.Ed.2d 368 (1983) (stating that federal preemption extends to all conduct that is "actually or arguably protected or prohibited by the NLRA"). Section 7 of the NLRA states in part that "[e]mployees shall have 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(a) of the NLRA prohibits unfair labor practices and provides in part that:

It shall be an unfair labor practice for an employer —

(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [Section 7];


(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization ... [or]

(4) to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this subchapter[.]

29 U.S.C. § 158(a).

{9} The Garmon preemption doctrine is necessary to ensure a consistent national labor policy. See Garmon, 359 U.S. at 242, 79 S.Ct. 773. However, the doctrine does not apply in limited circumstances: (1) if the conduct in question is "only a peripheral concern" of the NLRA, Jones, 460 U.S. at 676, 103 S.Ct. 1453 or (2) if the state law claims touch "`interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, [a court] could not infer that Congress had deprived the States of the power to act.'" Farmer v. United Bhd. of Carpenters & Joiners of Am., Local 25, 430 U.S. 290, 296-97, 97 S.Ct. 1056, 51 L.Ed.2d 338 (1977) (quoting Garmon, 359 U.S. at 243-44, 79 S.Ct. 773). To determine whether a state tort claim is preempted under the NLRA requires an examination of "the state interests in regulating the conduct in question and the potential for interference with the federal regulatory scheme." Farmer, 430 U.S. at 297, 97 S.Ct. 1056. The district court determined that Plaintiffs' claims for IIED, defamation, and retaliatory discharge were preempted by the NLRA. Whether a state claim is preempted by federal law is a legal question that we review de novo. See Hadrych v. Hadrych, 2007-NMCA-001, ¶ 5, 140 N.M. 829, 149 P.3d 593. We consider each claim in order to determine whether it is preempted by the NLRA or if an exception to the preemption doctrine applies.

1. Intentional Infliction of Emotional Distress

{10} In Farmer, the United States Supreme Court applied the preemption exception analysis to a state-law IIED claim and held that a union member's claim of IIED was not necessarily preempted by the NLRA. 430 U.S. at 302-05, 97 S.Ct. 1056. The Court recognized, however, that the exception to the preemption doctrine must be limited because a universal exception for every IIED claim could expand concurrent jurisdiction to unacceptable extremes and undermine the principle of preemption. See id. at 305, 97 S.Ct. 1056 ("It may well be that the threat, or actuality, of employment discrimination will cause a union member considerable emotional distress and anxiety[, b]ut something more is required before concurrent state-court jurisdiction can be permitted."). The Farmer Court limited the IIED exception to preemption by requiring that "the state tort be either unrelated to employment discrimination or a function of the particularly abusive manner in which the

192 P.3d 1249

discrimination is accomplished or threatened rather than a function of the...

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