Dority v. Green Country Castings Corp.

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Dority v. Green Country Castings Corp.
1986 OK 67
727 P.2d 1355
57 OBJ 2690
Case Number: 61021
Decided: 10/21/1986
Modified: 10/22/1986
Supreme Court of Oklahoma

Joe D. DORITY, Rocky J. Eslinger, Daniel L. Hamon, Ricky J. Hamon, Fred Hawkins, Billy L. Hughes, Willie Underwood and Theodore Wallace, Plaintiffs-Appellants,

Appeal from the District Court, Muskogee County; Hardy Summers, Judge.

¶0 Dismissed as preempted by the National Labor Relations Act were former employees' claims for damages from a discharge alleged to have violated the state prohibition against retaliation for filing a workers' compensation proceeding.


Gloyd L. McCoy, Ben A. Goff, Oklahoma City, for plaintiffs-appellants.

Richard L. Barnes, Brian W. Pierson, Nichols & Wolfe, Inc., Tulsa, for defendant-appellee.

OPALA, Justice.

[727 P.2d 1356]

¶1 The two issues before us in this appeal from a prejudgment order dismissing an action for lack of subject-matter jurisdiction are: [1] Does the National Labor Relations Act [NLRA]

¶2 The appellants [employees], joint plaintiffs in an action for damages from retaliatory discharge, had filed workers' compensation claims. They belonged to a union that had conducted a strike against Green Country Castings Corporation [employer], at the conclusion of which all union members other than the employees were reinstated to their former jobs. The employer informed them that, after a review of their medical reports, the company physician had recommended that they not be rehired because of their medical unfitness for the jobs. Meanwhile, each of the employees, after settling his compensation claim, had obtained a medical release for returning to work.

¶3 The employees initially invoked their NLRA remedies against the employer. The administrative law judge found that their discharge was motivated by union activity as well as by the filing of workers' compensation claims. The employer was ordered to reinstate them and to give them backpay.

¶4 The NLRB affirmed the order but deleted the administrative law judge's finding that the employer's refusal to reinstate the employees was motivated by their filing of workers' compensation claims. The order against the employer was, in effect, rested on a finding that the employees had been dismissed because of their union activities.

¶5 While the employer's appeal to the NLRB stood pending, the employees brought a state-court action against the employer for wrongful discharge in violation of 85 O.S. 1981 §§ 5-7 .



¶6 The Supremacy Clause in Art. VI of the United States Constitution mandates that in some instances state regulation stand preempted by national legislation.

¶7 The federal court of last resort has dealt with the outer limit of NLRA's preemption on many occasions. Its penultimate case addressing the doctrine's application is San Diego Building Trades Council, Etc v. Garmon.

¶8 As with most legal gauges, the Garmon test is much easier to articulate than to apply. The very Court that sired it has candidly stated that confusion in charting the boundary of the NLRA preemption sweep might be the result of its own pronouncements which apply the Garmon fashioned criteria.

¶9 Most recent decisions appear to clad the Garmon test in functional terms. A presumption of preemption will arise if the conduct which a state undertakes to regulate is arguably protected or prohibited by the NLRA.

¶10 The present case calls for such a functional inquiry. We can assume here, without deciding, that the conduct prohibited by Oklahoma's retaliatory discharge statute is either actually or arguably prohibited by the NLRA.

¶11 Peabody identified the factors to be balanced. It listed several of the NLRA's objectives: the promotion of labor peace, the stimulation of productivity and the elimination of unqualified employees from an employer's work force.



¶12 The employees have been awarded reinstatement and backpay as a result of administrative proceedings before the NLRA. The employer appears

¶13 The Restatement (Second) of Judgments

¶14 The U.S. Supreme Court has repeatedly recognized that the scheme of remedies provided by the NLRA would not be violated by a supplemental state remedy.

¶15 The trial court's prejudgment dismissal for want of subject-matter cognizance is reversed and the cause is remanded with directions to reinstate the action and to proceed further in a manner not inconsistent with this pronouncement.


¶17 SUMMERS, J., disqualified.


1 29 U.S.C. §§ 141 et seq.

2 The terms of 85 O.S. 1981 §§ 5-7 provide: § 5 . "No person, firm, partnership or corporation may discharge any because the employee has in good faith filed a claim, or has retained a lawyer to represent him in said claim, instituted or caused to be instituted, in good faith, any proceeding under the provisions of Title 85 of the Oklahoma Statutes, or has testified or is about to testify in any such proceeding. Provided no employer shall be required to rehire or retain any employee who is determined physically unable to perform his assigned duties."

§ 6. "A person, firm, partnership or corporation who violates any provision of Section 5 of this title shall be liable for reasonable damages suffered by an employee as a result of the violation. An employee discharged in violation of the Workers' Compensation Act shall be entitled to be reinstated to his former position. The burden of proof shall be upon the employee." § 7. "The district courts of the state shall have jurisdiction, for cause shown, to restrain violations of this act."

3 Both parties appear to view federal preemption as the sole issue for decision on appeal. Because the employer contends it is shielded from the retaliatory discharge action by the grievance procedure finally concluded under the NLRA, the second issue also must be reached for decision.

4 See footnote 2 supra for the text of 85 O.S. 1981 §§ 5-7 .

5 Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 105 S. Ct. 1904, 1909-1910, 85 L. Ed. 2d 206 [1985].

6 Allis-Chalmers Corp. v. Lueck, supra note 5.

7 New York Telephone Company v. New York State Department of Labor, 440 U.S. 519, 528, 99 S. Ct. 1328, 1334, 59 L. Ed. 2d 553 [1979].

8 Farmer v. United Brotherhood of Carpenters and Joiners of America, 430 U.S. 290, 297, 97 S. Ct. 1056, 1061, 51 L. Ed. 2d 338 [1977].

9 359 U.S. 236, 79 S. Ct. 773, 3 L. Ed. 2d 775 [1959].

10 See footnote 9 supra, 359 U.S. at 244-247, 79 S. Ct. at 779-781.

11 See footnote 9 supra, 359 U.S. at 244, 79 S. Ct. at 779.

12 Amalgamated Ass'n of St., E.R. & M.C. Emp. v. Lockridge, 403 U.S. 274, 286, 91 S. Ct. 1909 1917, 29 L. Ed. 2d 473 [1971].

13 Belknap, Inc. v. Hale, 463 U.S. 491, 498-499, 103 S. Ct. 3172, 3177, 77 L. Ed. 2d 798 [1983] and Brown v. Hotel & Restaurant Employees & Bartenders, 468 U.S. 491, 501, 104 S. Ct. 3179, 3186, 82 L. Ed. 2d 373 [1984].

14 Brown v. Hotel & Restaurant Employees & Bartenders, supra note 13, 468 U.S. at 503, 104 S. Ct. at 3187.

15 Brown v. Hotel & Restaurant Employees & Bartenders, supra note 13.

16 Farmer v. United Brotherhood of Carpenters and Joiners of America, supra note 8, 43 U.S. at 301, 97 S. Ct. at 1063.

17 The NLRB has held that the filing of a workers' compensation claim is "concerted activity" within the meaning of the NLRA. See Krispy Kreme Doughnut Corp., 245 NLRB 1053, 1061 [1979]: An employer who discriminates against an employee for filing a workers' compensation claim would be deemed engaged in a prohibited unfair labor practice. The employer places great emphasis on the cited NLRB decision and argues that it brings this case squarely within the Garmon test. As we note in Part I of this opinion's text, an activity actually prohibited by the NLRA is but presumptively preempted. The weight to be accorded the NLRB's decision in Krispy Kreme is in doubt. This is so because the 4th Circuit, on review of the cited decision by the NLRB, rejected that agency's expansive definition of "concerted activity" and declined to allow its enforcement. See Krispy Kreme Doughnut Corp. v. National Labor Relations Board, 635 F.2d 304, 309 [4th Cir. 1980].

The NLRB's construction of the NLRA is entitled to deference from the courts if it is found reasonable. National Labor Relations Board v. Transportation Management, Corp., 462 U.S. 393, 402-403, 103 S. Ct. 2469, 2474-2475, 76 L. Ed. 2d 667 [1983]. At least one other court has failed to follow the NLRB's "concerted activity" construction in the agency's Krispy Kreme order. Flick v. General Host Corp., 573 F. Supp. 1086, 1087-1088 [N.D.Ill. 1983]. Flick, coupled with the 4th Circuit's refusal to enforce the Krispy Kreme order, injects serious doubt into the viability of NLRB's administrative interpretation.

18 666 F.2d 1309 [10th Cir. 1982]. In Peabody Galion v. Dollar the plaintiffs brought an action under the provisions of 85 O.S. 1981 §§ 5-7 (supra note 2), alleging that they were wrongfully discharged. The employees belonged to a union that had entered into a collective bargaining agreement with the employer, which provided for arbitration of disputes that arose under its terms. The agreement contained some guidelines for the treatment of workers who had filed compensation claims. Two of the plaintiffs had unsuccessfully pursued redress under the agreement's grievance procedure before they filed a diversity action in federal district court. The 10th Circuit held that [1] a retaliatory discharge action under the terms of 85 O.S. 1981 §§ 5-7 is not preempted by the NLRA and [2] neither the federal policy in favor of arbitration nor the exclusivity of remedies doctrine operates to bar the employees' Oklahoma-based suit.

The employer argues that the presence of a collective bargaining agreement in Peabody, supra, distinguishes it from the instant case. It is asserted that the agreement, which provided for mandatory grievance procedures, served to remove Peabody from the scope of the preemption doctrine. We disagree. The 10th Circuit's preemption-issue analysis did not depend upon the presence or absence of a collective bargaining agreement. Because the agreement existed, an additional issue was tendered - the effect of the federal policy in favor of arbitration on maintenance of the suit. The prudential concerns of that issue did not affect the 10th Circuit's preemption analysis.

19 Peabody Galion v. Dollar, supra note 18 at 1316-1317.

20 Peabody Galion v. Dollar, supra note 18 at 1316.

21 Peabody Galion v. Dollar, supra note 18 at 1317.

The Oklahoma legislature obviously considered the state's interests in the integrity of the workers' compensation system and the health of its workers when it created a statutory cause of action cognizable in ordinary courts. See WRG Construction Company v. Hoebel, Okl., 600 P.2d 334 [1979].

22 Peabody Galion v. Dollar, supra note 18 at 1317-1318.

23 Although Peabody, supra note 18, did not explicitly mention the functional approach to the preemption problem, its analysis clearly followed that test. In the Peabody text it is stated that ". . . even assuming that there exists a basis for a preliminary finding of preemption, still this statute would stand up under analysis and would fit within the `state concern' exceptions to the preemption requirement. * * *" 666 F.2d at 1317.

24 While an inferior federal court's pronouncement on a federal-law question has no binding force on a state court of last resort, it is indeed highly persuasive. Phillips v. Williams, Okl., 608 P.2d 1131, 1135 [1980].

25 The analysis of the 9th Circuit in Garibaldi v. Lucky Food Stores, Inc., 726 F.2d 1367 [9th Cir. 1984] is in accord. Our conclusion is also reinforced by Messenger v. Volkswagen of America, Inc., 585 F. Supp. 565 [S.D.W.Va. 1984]; Ruiz v. Miller Curtain Co., Inc., 702 S.W.2d 183, 185 [Tex. 1986] and Vaughn v. Pacific Northwest Bell Tel. Co., 289 Or. 73, 611 P.2d 281, 286-287 [1980], which hold that statutes very similar to 85 O.S. 1981 §§ 5-7 are not preempted by federal labor law.

The U.S. Supreme Court has recently dealt with federal preemption in Allis-Chalmers Corp. v. Lueck, supra note 5. Lueck was a bad-faith claim against the employer's risk carrier of a disability insurance plan provided under the terms of a collective bargaining agreement. There the Court spelled out the importance of the distinction between an action founded on the collective bargaining agreement and other types of tort claims. Lueck in essence holds that a breach of the collective bargaining agreement cannot be converted into a state cause of action by an assertion that the breach was committed in bad faith. Because the present action is not predicated upon a breach of the collective bargaining agreement, the teaching of Lueck is not applicable here. For other interpretations of Lueck, see Lingle v. Norge Div. of Magic Chef, Inc., 618 F. Supp. 1448 [S.D.Ill. 1985] and Edwards v. Western Manufacturing, 641 F. Supp. 616 [D.C.Kan. 1986].

In the case at bar the district court's dismissal was grounded on Viestenz v. Fleming Companies, Inc., 681 F.2d 699 [10th Cir. 1982]. Viestenz did not overrule Peabody, supra note 18; in fact, Peabody was not even mentioned there. The balancing test merely yielded a different result. In Viestenz the employee brought an intentional infliction of mental distress suit against the employer. The U.S. Supreme Court had held that, for such conduct to be of enough magnitude to justify the "local concern" exception to preemption, the conduct had to be "outrageous." Farmer v. United Brotherhood of Carpenters and Joiners of America, supra note 8, 430 U.S. at 297, 97 S. Ct. at 1061. Viestenz merely held that the employee had failed to prove that the employer's conduct was "outrageous" and thus his suit stood preempted. The result is consistent with the Peabody analysis.

26 See footnote 3 supra.

27 Restatement (Second) of Judgments § 83 (3) [1982].

28 Restatement (Second) of Judgments § 83 (3) comment g [1982].

29 International Union, Etc. v. Russell, 356 U.S. 634, 644-646, 78 S. Ct. 932, 938-939, 2 L. Ed. 2d 1030 [1958]; International Ass'n. of Machinists v. Gonzales, 356 U.S. 617, 621, 78 S. Ct. 923, 925, 2 L. Ed. 2d 1018 [1958] and Linn v. United Plant Guard Workers of America, Local 114, 383 U.S. 53, 63-64, 86 S. Ct. 657, 644-665, 15 L. Ed. 2d 582 [1966].

30 See cases cited in footnote 29 supra.

31 Alexander v. Gardner-Denver Company, 415 U.S. 36, 48-49, 94 S. Ct. 1011, 1019-1020, 39 L. Ed. 2d 147 [1974] and Barrentine v. Arkansas Best Freight System, Inc., 450 U.S. 728, 740-741, 101 S. Ct. 1437, 1444, 67 L. Ed. 2d 641 [1981].

32 In International Union, Etc. v. Russell, supra note 29, 356 U.S. at 646, 78 S. Ct. at 939 the Court stated: "* * * Of course, [an employee] . . . could not collect duplicate compensation for lost pay from the state courts and the Board. * * *" [Emphasis supplied.]