Unpublished Disposition, 933 F.2d 1014 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 933 F.2d 1014 (9th Cir. 1989)

James HADLEY, Plaintiff-Appellant,v.PACIFIC GAS AND ELECTRIC COMPANY, Mary Tucker, Defendants-Appellees.

No. 89-16364.

United States Court of Appeals, Ninth Circuit.

Submitted April 24, 1991.* Decided May 15, 1991.



We once again are asked to determine whether a terminated employee's various state law claims are preempted by federal labor law. We conclude that they are, and affirm.

* James Hadley, a member of the International Brotherhood of Electrical Workers, Local 1245, was terminated by Pacific Gas & Electric Company (PG & E) following his sale of fifty dollars' worth of cocaine to an undercover agent, Mary Tucker. Hadley contended that he was entrapped by Tucker as part of a PG & E program of quickly terminating employees due to financial reversals suffered by the company.

After losing his case in the union-management grievance proceedings specified by the applicable collective bargaining agreement, Hadley brought this action against PG & E and Tucker. His complaint, filed in the Superior Court of the State of California, County of San Francisco, alleged causes of action for wrongful termination, violation of Cal.Penal Code Sec. 632 (invasion of privacy), inducement of breach of contract, conspiracy to induce breach of contract, breach of the implied covenant of good faith and fair dealing, malicious prosecution, abuse of process, and intentional infliction of emotional distress. After service of the complaint upon PG & E, the utility removed the action to federal court pursuant to 28 U.S.C. § 1441, premising the move on the ground that Hadley's complaint stated claims for breach of a collective bargaining agreement cognizable only under federal law. See 29 U.S.C. § 185(a) (1988) (section 301 of the Labor Management Relations Act).

PG & E brought a motion for summary judgment as to each claim specified in the removed complaint. The district court granted summary judgment in an order entered September 22, 1989. The court dismissed the claims for wrongful termination, breach of the implied covenant of good faith and fair dealing, and intentional infliction of emotional distress, reasoning that those claims were preempted by section 301 of the LMRA and that Hadley had failed to state a cause of action under that statute. The court also concluded that Hadley had failed to state a claim under California law for inducement to breach a contract or conspiracy. Finally, the court held that the undisputed facts did not support Hadley's claims for violation of Cal.Penal Code Sec. 632, malicious prosecution, and abuse of process.

Hadley appeals the order granting summary judgment.1 


Hadley contends that the district court erred in dismissing his defamation and negligent infliction of emotional distress claims. No such claims appear in the removed complaint, and the amended complaint was never part of this action.2  Our jurisdiction is limited under 28 U.S.C. § 1291 to appeals from "all final decisions of the district courts of the United States." We lack jurisdiction to rule on claims which have not been presented to the district court, and upon which the district court necessarily has not ruled. See In re LaFortune, 652 F.2d 842 (9th Cir. 1981) (jurisdiction of court of appeals can only be based on proper exercise of district court jurisdiction).


Hadley next argues that his claims for wrongful termination and intentional infliction of emotional distress (and perhaps other claims as well) are not preempted by federal labor law. He contends that there is no preemption because his entrapment and termination violated public policy, because the claims do not rely upon construction of the collective bargaining agreement, and because the company's conduct was sufficiently outrageous to give rise to tort claims outside of the collective bargaining context.

A California Court of Appeal recently has rejected identical claims. In Moreau v. San Diego Transit Corp., 210 Cal. App. 3d 614, 258 Cal. Rptr. 647, review denied, (Cal.1989), an informant entrapped several employees into selling drugs. When one filed suit for wrongful discharge and intentional and negligent infliction of emotional distress after acquittal on criminal charges, the court concluded that the causes of action had been preempted by section 301. Although the employee contended that his right to be free of entrapment and terminations based thereon was "nonnegotiable," the court found "no nonnegotiable right involved" in the case. 210 Cal. App. 3d at 628, 258 Cal. Rptr. at 655. Further, the court held that even if there were such a right at stake, "preemption would still occur inasmuch as resort to the agreement and application of the 'just cause' provision would be necessary in resolving the specific tort actions brought" in the case. Id., 258 Cal. Rptr. at 655.

Similarly, especially given the absence of a violation of a nonnegotiable right bestowed by state law, we cannot agree that Hadley's claims are not "inextricably intertwined" with the terms of the collective bargaining agreement. See Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213 (1985). The collective bargaining agreement provided that employees could be terminated for just cause. Each of Hadley's claims arises out of the validity of Hadley's discharge under the terms of the agreement, or PG & E's conduct in obtaining that discharge. Such issues are precluded by section 301. See Scott v. Machinists Automotive Trades Dist. Lodge No. 190, 827 F.2d 589, 594 (9th Cir. 1987) (per curiam) (claims for intentional infliction of emotional distress preempted when they arise out of discharge "or the conduct of the defendant's investigation leading up to the discharge"); see also Miller v. AT & T Network Systems, 850 F.2d 543, 549 (9th Cir. 1988) (claims for intentional infliction of emotional distress require interpretation of employer's "reasonableness," which in turn requires interpretation of agreement). Claims that PG & E's conduct was "outrageous" require an interpretation of the collective bargaining agreement's provisions for employee discharge.3 


We affirm the district court's order granting summary judgment.



The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a), Ninth Circuit R. 34-4


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


Hadley also filed an amended complaint in the state court, adding causes of action for libel and violation of civil rights pursuant to 42 U.S.C. § 1983. However, this complaint was never served upon PG & E, nor was it removed to federal court. Thus, the district court's order disposing of all claims raised in the original complaint is a final, appealable order


Even the amended complaint lacks allegations of negligent infliction of emotional distress


Tellez v. Pacific Gas & Elec. Co., 817 F.2d 536 (9th Cir.), cert. denied, 484 U.S. 908 (1987), is distinguishable. In Tellez, we held a claim for intentional infliction of emotional distress not to be preempted where the claim was premised upon an employer's gratuitous actions taken entirely apart from the collective bargaining agreement. See id. at 538-39. Here, Hadley has not demonstrated that PG & E's conduct was not at least arguably permissible under the collective bargaining agreement