Unpublished Disposition, 879 F.2d 866 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 879 F.2d 866 (9th Cir. 1989)

Duane L. WILKINSON, Plaintiff-Appellant,v.SAFEWAY STORES, INC.; Lester Collins; Thomas Braddy, andDoes 1 through 100, Inclusive, Defendants-Appellees.

No. 88-5676.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 5, 1989.Decided July 11, 1989.

Before SNEED, REINHARDT and BRUNETTI, Circuit Judges.


Wilkinson appeals the district court's order dismissing his complaint on the ground that it was preempted by Sec. 301 of the Labor Management Relations Act (LMRA). See 29 U.S.C. § 185 (1982). We affirm.


Wilkinson was a meat-cutter employed by Safeway for twenty-seven years in Big Bear, California. He sued Safeway and several of its employees (hereinafter collectively referred to as Safeway) in California state court alleging that he "was forced to leave" his job as a consequence of the tortious actions of two Safeway employees, Lester Collins and Thomas Braddy. Wilkinson alleges that he discovered Braddy, his immediate supervisor, falsifying his time cards in order to receive pay for hours that he did not work. Wilkinson reported these observations to Collins, the store manager, and asked that their conversation be kept confidential. It appears this was not done inasmuch as Braddy later confronted Wilkinson. Wilkinson alleges that after this incident "Braddy and Collins set out on a course of action designed to demean, humiliate, intimidate, degrade, belittle, disgrace, and ridicule Wilkinson...." Wilkinson alleges that he suffered severe emotional distress as a consequence of Collins' and Braddy's actions and that eventually, after a transfer to another store was refused, he was "forced to leave." Safeway suggests that Wilkinson was discharged. Wilkinson was a member of Local 439 of the United Food and Commercial Workers Union (the Union). There was a collective bargaining agreement in effect between Safeway and the Union. Safeway contends that none of the allegations about Braddy's theft are in the record below and therefore should not be considered by this court.

Safeway removed this action to federal court and moved to dismiss the complaint, arguing that all of Wilkinson's claims were preempted by Sec. 301 of the LMRA. The district court agreed.


Wilkinson originally filed this action in California state court. Safeway, as already pointed out, removed the action under 28 U.S.C. § 1441(b) (1982). Because Wilkinson's complaint did not raise a federal question on its face, removal was proper only if Wilkinson's claims were completely preempted by federal law. See Caterpillar Inc. v. Williams, 107 S. Ct. 2425, 2430 (1987). This court has jurisdiction under Sec. 1291.


Whether a plaintiff's cause of action is preempted by federal law is a question of law that is reviewed de novo. Bale v. General Tel. Co., 795 F.2d 775, 778-79 (9th Cir. 1986).


Section 301 provides: "Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce ... may be brought in any district court of the United States...." 29 U.S.C. § 185(a) (1982). A suit alleging the breach of a collective bargaining agreement is governed exclusively by Sec. 301. See Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 23 (1983). The Supreme Court has announced two different standards for determinating whether Sec. 301 controls. Instead of deciding whether the "two tests do in fact differ," we have, accommodatingly, applied both. See Newberry v. Pacific Racing Ass'n, 854 F.2d 1142, 1147 (9th Cir. 1988). Most recently, for example, the Supreme Court has said that the dispositive inquiry is whether applying state law "requires the interpretation of a collective bargaining agreement." Lingle v. Norge Div. of Magic Chef, Inc., 108 S. Ct. 1877, 1885 (1988). Previously, on the other hand, the Court suggested that a state claim is preempted if it "is substantially dependent upon analysis of the terms of a [ ] [collective bargaining] agreement...." Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220 (1985). While these tests may not be identical, they do share considerable common ground.

We must begin by examining Wilkinson's complaint. In it he alleged seven causes of action: breach of contract, breach of the covenant of good faith and fair dealing, intentional infliction of emotional distress, negligent infliction of emotional distress, negligence, fraud and deceit, and conspiracy. We will address each cause of action in turn.

Wilkinson's first cause of action is for breach of contract. In this portion of his complaint, Wilkinson explicitly acknowledges that he was covered by the collective bargaining agreement between the Union and Safeway. He also incorporates the specific terms of that agreement into his complaint, alleging that the contract provided that he would be discharged only for good cause. The collective bargaining agreement is also an exhibit attached to his complaint. By specifically alleging that Safeway breached the collective bargaining agreement, Wilkinson's claims not only will require, but also are dependent on, an interpretation of its terms. As a consequence, this claim is preempted. See Young v. Anthony's Fish Grottos, Inc., 830 F.2d 993, 998 (9th Cir. 1987); Harper v. San Diego Transit Corp., 764 F.2d 663, 667 (9th Cir. 1985).

B. Breach of Covenant of Good Faith and Fair Dealing

In his second cause of action, Wilkinson alleges that Safeway tortiously breached the covenant of good faith and fair dealing in his employment contract. As the employment contract between Wilkinson and Safeway is the collective bargaining agreement from which the covenant must spring, this claim is likewise preempted. See Newberry, 854 F.2d at 1147-48; Young, 830 F.2d at 999-1000.

C. Intentional and Negligent Infliction of Emotional Distress

Wilkinson next argues that his claims for intentional and negligent infliction of emotional distress are not preempted, citing Tellez v. Pacific Gas & Elec. Co., 817 F.2d 536 (9th Cir.), cert. denied, 108 S. Ct. 251 (1987).1  In Tellez, the plaintiff sued PG & E after the company circulated a suspension letter alleging that Tellez had sold cocaine. The court held that Tellez' claims for intentional and negligent infliction of emotional distress were not preempted because the collective bargaining agreement in that case was "silent on work conditions, and vague on disciplinary formalities." Id. at 539. Tellez' claims, therefore, would not require interpretation of the collective bargaining agreement. Id.

In contrast, when a collective bargaining agreement does specify work conditions and disciplinary procedures, this court has routinely held that claims for emotional distress are preempted. See, e.g., Newberry, 854 F.2d at 1149-50; Hyles v. Mensing, 849 F.2d 1213, 1216 (9th Cir. 1988). In Newberry, this court concluded that the emotional distress claims were preempted because " [a] determination of the validity of her emotional distress claim will require us to decide whether her discharge was justified under the terms of the collective bargaining agreement." 854 F.2d at 1149. Similarly, in Miller v. AT & T Network Sys., the court held that the plaintiff's emotional distress claims arising out of her reassignment and discharge were preempted because the "outrageousness" of the defendant's conduct could depend upon "whether [the defendant's] behavior violated the terms of the [collective bargaining agreement]." 850 F.2d 543, 551 (9th Cir. 1988); see also Hyles, 849 F.2d at 1216-17 (emotional distress claim against union was preempted because allegations were " 'inextricably intertwined with consideration of the terms of the labor contract' " (quoting Lingle, 108 S. Ct. at 1882)). Thus, Wilkinson's claims for intentional and negligent infliction of emotional distress are preempted if their resolution arises out of the same events as his termination from Safeway.

The courts in Newberry and Miller reached the result they did because the collective bargaining agreement contained rules prescribing when an employee could be discharged. See Newberry, 854 F.2d at 1149-50; Miller, 850 F.2d at 550-51. An emotional distress claim arising out of an employee's discharge will be preempted if the collective bargaining agreement sets out standards defining when employees may be terminated. Wilkinson alleges that the defendants "remov [ed] and/or restrict [ed] plaintiff's job duties and responsibilities for reasons that were arbitrary...." He further alleged that he was denied promotions, subjected to different standards of conduct from other employees, given unfair performance evaluations, and denied an opportunity to respond to grievances. Wilkinson also alleges that the defendants' conduct prevented him from using seniority benefits to which he was entitled.

Most of these allegations will require reference to the collective bargaining agreement between Safeway and the Union. For example, Article 10 of the collective bargaining agreement outlines certain prerogatives of management concerning the work Wilkinson performed. Thus, a court deciding whether Safeway arbitrarily restricted Wilkinson's job duties would have to interpret this provision of the agreement. This is also true of Wilkinson's allegations concerning his job duties. The collective bargaining agreement between the Union and Safeway explicitly sets out the duties of various job classifications. Likewise, Wilkinson's complaints about promotions, grievances, and performance evaluations all involve subjects covered by the collective bargaining agreement. Wilkinson's allegations make clear that both these claims would require an interpretation of the collective bargaining agreement and are substantially dependent on an interpretation of the collective bargaining agreement for their resolution. They, therefore, are preempted.

In his fifth cause of action, Wilkinson, in an attempt to bypass the contractual aspects of the collective bargaining agreement and to range freely in the field of torts, alleges that the defendants "engaged in a negligent, careless, and reckless course of conduct to create a working environment detrimental to the health, safety, and welfare of plaintiff...." Wilkinson then repeats the same, more specific allegations contained in his emotional distress causes of action. See supra at 6. The effort fails. The preemption gate is shut. As we discussed above, all of these allegations will require an interpretation of the collective bargaining agreement. They, therefore, are preempted. See supra at 6-7.

The same is true of Wilkinson's sixth cause of action for fraud and deceit. He alleges that he was fraudulently induced to enter into his employment contract with Safeway with the understanding that he would not be discharged or disciplined except for good cause and that his performance would be evaluated fairly and that certain grievance procedures would be followed. The allegations obviously incorporate the terms of the collective bargaining agreement. Article 7 provides that employees may be discharged for good cause only; Article 6 addresses promotion; and Article 8 sets out the grievance procedures. All of these allegations also are preempted. See Young, 830 F.2d at 1001; Stallcop v. Kaiser Found. Hosps., 820 F.2d 1044, 1049 (9th Cir.), cert. denied, 108 S. Ct. 504 (1987).

In his seventh and final cause of action, Wilkinson claims that all the parties conspired to do all of the wrongful acts alleged previously. The sum of five zeros remains zero, however. As Wilkinson refers to his previous claims, all of which are preempted, his civil conspiracy claim must also be preempted. See Hyles, 849 F.2d at 1217.

Wilkinson, not surprisingly, argues that none of his claims are preempted because his cause of action falls within the public policy exception enunciated in Garibaldi v. Lucky Food Stores, Inc., 726 F.2d 1367 (9th Cir. 1984), cert. denied, 471 U.S. 1099 (1985). In Garibaldi, the plaintiff was terminated after he refused to deliver a load of spoiled milk. California law prohibited the sale or delivery of adulterated milk. See id. at 1374. Because Garibaldi alleged that he was terminated in violation of California public policy, his wrongful discharge claim was not preempted. See id. at 1375.

The public policy exception was applied again in Paige v. Henry J. Kaiser Co., 826 F.2d 857 (9th Cir. 1987), cert. denied, 108 S. Ct. 2819 (1988). In Paige, employees were discharged when they refused to refuel gasoline engines under what they considered to be unsafe conditions. The court held that their claims for wrongful discharge were not preempted because Cal/OSHA regulations imposed a duty independent of those imposed by the collective bargaining agreement. See id. at 863-64.

Based on Paige and Garibaldi, Wilkinson argues that he too rendered service to Safeway, its customers, and consumers generally, and that he too should be protected by the public policy exception. He asserts that California law prohibits theft and embezzlement and therefore his actions in reporting these actions were in furtherance of public policy. See Cal.Penal Code Secs. 182, 484, 532 (West 1988).

The district court rejected Wilkinson's argument, concluding that the public policy exception did not apply to this case because the public was not directly affected by the alleged theft. We are not prepared to accept this reasoning. Nonetheless, it is true that this court has never addressed whether Garibaldi extends to the public policy embodied in penal statutes. We need not reach that question in this case. Wilkinson alleges that defendant Braddy falsified his time card and hours worked. In this case, in order for the district court to determine whether Braddy was being paid for hours he did not work, the district court would have to interpret the collective bargaining agreement provisions addressing such issues as the minimum number of hours for each employee, rest period, travel time, etc. Therefore, under Lingle and Allis-Chalmers this claim is preempted by Sec. 301.

Although we conclude that all of Wilkinson's state law claims are preempted, that does not leave Wilkinson without a remedy. The dismissal of this action alone does not impair Wilkinson's ability to sue under Sec. 301.



This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


Wilkinson also cites Alpha Beta, Inc. v. Superior Court, 244 Cal. Rptr. 414 (Cal.App.), cert. denied, 109 S. Ct. 392 (1988) and Birtell v. Lockheed-California Co., 247 Cal. Rptr. 86 (Cal.App.1988), cert. denied, 109 S. Ct. 869 (1989), for support. In denying review of both of these cases, the California Supreme Court ordered that these opinions not be officially published. See Birtell, 247 Cal. Rptr. at 86 n. *; Alpha Beta, 244 Cal. Rptr. at 414 n. *. As a consequence, these decisions are not authoritative. See Cal.R. of Ct. 977