Screen Extras Guild, Inc. v. Superior Court

EAGLESON, J.

I respectfully dissent. In my view, the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA) ( 29 U.S.C. § 401 et seq.) does not preempt a union employee’s California claim for wrongful discharge and related torts, even where union politics or patronage may be involved. The LMRDA expressly preserves state-law rights and remedies that do not frustrate its purposes. The United States Supreme Court decisions cited by the majority do not state or imply that the LMRDA preempts state-law wrongful-discharge claims. And nothing in California’s carefully circumscribed law of wrongful termination is inconsistent with the LMRDA’s goals and objectives.

Though they differ on the semantical nuances of preemption analysis, Justice Arabian in his dissent (post) and the majority agree in principle about several theories of preemption that are not applicable here. First, as both concede, the LMRDA does not expressly preempt state-law suits for wrongful discharge by a union employee. (Shaw v. Delta Air Lines, Inc. (1983) 463 U.S. 85, 95-100 [ 77 L.Ed.2d 490, 499-503 , 103 S.Ct. 2890 ].) The federal statute contains no preemption clause at all.

Second, the LMRDA does not imply an intent to displace state regulation of the subject matter it addresses. (Rice v. Santa Fe Elevator Corp. (1947) 331 U.S. 218, 230 [ 91 L.Ed. 1447, 1459 , 67 S.Ct. 1146 ].) Indeed, the statute includes several provisions indicating its nonpreemptive intent. (See, *1034 in particular, 29 U.S.C. §§ 413 [LMRDA does not limit other remedies of union members under state or federal law or union constitution and bylaws], 523(a) [preserving all “responsibilities” of union officials, and all remedies of union members, under other federal and state laws].)

Third, state regulation of conduct even “arguably protected or prohibited” by the LMRDA would not interfere with the primary jurisdiction of a federal agency. (San Diego Unions v. Garmon (1959) 359 U.S. 236, 244-245 [ 3 L.Ed.2d 775, 782-783 , 79 S.Ct. 773 ].)

Fourth, California’s enforcement of a union employee’s wrongful-discharge rights would not preclude compliance with the requirements of the LMRDA. (Florida Avocado Growers v. Paul (1963) 373 U.S. 132, 142-143 [ 10 L.Ed.2d 248, 256-257 , 83 S.Ct. 1210 ].)

Justice Arabian and the majority focus instead on a fifth, more nebulous theory of preemption. This holds that preemption of a particular state law, right, or remedy is implied if application of the state’s policy “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” (E.g., Brown v. Hotel Employees (1984) 468 U.S. 491, 501 [ 82 L.Ed.2d 373, 383 , 104 S.Ct. 3179 ]; Hines v. Davidowitz (1941) 312 U.S. 52, 67 [ 85 L.Ed. 581, 586-587 , 61 S.Ct. 399 ].) The majority say the LMRDA establishes a broad policy of “democratic union government” that “actually protects” the near-absolute right of elected union officials to fire appointed staff aides at will. Justice Arabian concedes a more limited federal protection of “patronage” or “political” discharges. I find neither premise persuasive.

The LMRDA was a limited response to antidemocratic abuses by union leaders against the membership. By its terms, the statute places certain reporting requirements on unions and unionized employers; imposes standards for union financial transactions, elections, and trusteeships; and includes a “Bill of Rights” for union members. ( 29 U.S.C. § 411 et seq.) The statute was undoubtedly intended to discourage corrupt and arbitrary union governance, but it did not attack that problem by addressing the relationship between elected union officials and appointed employees of the union.

Cases concluding that the “democratic” policies of the LMRDA protect a union’s relations with its high-level appointees from state regulation all rely primarily on Finnegan v. Leu (1982) 456 U.S. 431 [ 72 L.Ed.2d 239 , 102 S.Ct. 1867 ] (hereafter Finnegan). However, Finnegan is not a preemption case. It holds only that an appointed union employee has no wrongful-discharge remedy under the LMRDA. Neither Finnegan nor any other United States Supreme Court decision has intimated that the LMRDA has *1035 a preemptive effect on state-law protections against wrongful discharge from employment.

Several lower-court decisions have found varying degrees of implicit preemption in Finnegan's suggestion that the freedom of an elected union officer to maintain a politically compatible staff is “an integral part” of the responsive union democracy which is the “overriding objective” of the LMRDA. ( 456 U.S. at p. 441 [ 72 L.Ed.2d at p. 247 ]; see, e.g., Bloom v. General Truck Drivers (9th Cir. 1986) 783 F.2d 1356, 1361-1363 ; Tyra v. Kearney (1984) 153 Cal.App.3d 921, 925-926 [ 200 Cal.Rptr. 716 ]; Montoya v. Local Union III of I.B.E.W. (Colo.Ct.App. 1988) 755 P.2d 1221, 1224 .) However, by taking Finnegan's analysis out of context, these courts accord it too broad a meaning. My colleagues perpetuate the error here.

In Finnegan , a newly elected union president fired business agents who, as members of the union, had campaigned for the incumbent. The agents claimed the discharges were a prohibited form of “discipline” ( 29 U.S.C. § 529 [LMRDA, tit. VI, § 609]) for their exercise of membership political rights guaranteed by section 101(a)(1) and (2) of title I of the LMRDA. ( 29 U.S.C. § 411 (a)(1), (2).) The court answered that the LMRDA does not protect a union member’s status as an employee of the union, so as to “restrict the freedom of an elected union leader to choose a staff whose views are compatible with his own. [Fn. omitted.]” ( Finnegan, supra, 456 U.S. at pp. 440-441 [ 72 L.Ed.2d at p. 247 ], italics added.) This “ability of an elected union president to select his own administrators,” said the court, is consistent with the “overriding” federal goal of union governments which are responsive to popular will. {Ibid.)

Finnegan did not suggest, however, that the LMRDA protects or guarantees such freedom against all regulation by the states. On the contrary, the opinion concluded that the LMRDA simply has no effect on the “traditional” and “longstanding” employment practices of unions as set forth in their constitutions and bylaws. (456 U.S. at pp. 441-442, & fn. 12 [72 L.Ed.2d at pp. 247-248].) As the court observed, “neither the language nor the legislative history of the [LMRDA] suggests that it was intended even to address the issue of union patronage. [Fn. omitted.] . . . []}] . . . Nothing in the [LMRDA] evinces a congressional intent to alter the traditional pattern which would permit a [newly elected] union president under \the\ circumstances [presented by this case] to appoint agents of his choice to carry out his policies.” (Id., at pp. 441-442 [72 L.Ed.2d at pp. 247-248], italics added.)

Finnegan suggested at most that the “traditional” plenary patronage power of elected union officials over appointed aides often promotes union democracy, and does not violate the LMRDA. There was no inference that *1036 the LMRDA mandates at-will employment for high-level union aides, even where the union itself has decided in good faith to offer more secure employment. Nor did the court imply that state enforcement of good-faith employment agreements between unions and their high-level employees would frustrate or obstruct federal goals. 1

Sheet Metal Workers v. Lynn (1989) 488 U.S. 347 [ 102 L.Ed.2d 700 , 109 S.Ct. 639 ] adds nothing of significance to an argument for preemption. Like Finnegan, Lynn was solely concerned with an employee-member’s rights and remedies under federal law. Lynn held that when an elected union official is dismissed for expressing his views to his fellow members, he may state a free-speech claim under the LMRDA. In the Lynn majority’s view, the chilling effect of such a dismissal on the LMRDA’s “basic objective” of responsive union democracy outweighed the usual federal policy of deference to union employment practices. (488 U.S. at pp. 353-355 [102 L.Ed.2d at pp. 708-710].) In effect, Lynn limits any implication in Finnegan that the sanctity of union employment practices is a federal policy which takes precedence over individual rights.

Justice Arabian correctly observes that “although state law may be preempted ... if it frustrates the specific objectives underlying a federal enactment, a ‘general tension’ with the broad or abstract goals of federal laws or programs will not result in preemption. (See Commonwealth Edison Co. v. Montana (1981) 453 U.S. 609, 633-634 [ 69 L.Ed.2d 884, 904-905 , 101 S.Ct. 2946 ].) . . . [S]tate law should not be displaced unless there is a significant conflict between the operation of the local law and concretely identifiable federal interests. (Boyle v. United Technologies Corp. (1988) 487 U.S. 500 [ 101 L.Ed.2d 442 , 108 S.Ct. 2510 ].)” (Dis. opn. of Arabian, J., post, at pp. 1042-1043.) The majority agree in principle, and that concession should be dispositive. Though the LMRDA takes some steps designed to encourage democracy in unions, it simply does not embrace unfettered union patronage as a “concretely identifiable” means of achieving that abstract goal. 2

*1037 In any event, California employment law does not interfere or conflict with any legitimate federal interest in the freedom of elected union officials to choose their own aides. In California, the employment relationship is presumptively “at-will.” (Lab. Code, § 2922.) Our state provides a remedy for discharge from employment only if the termination contravened a valid express or implied agreement for job security (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 677 [ 254 Cal.Rptr. 211 , 765 P.2d 373 ]), stemmed from a pernicious form of discrimination (e.g., Gov. Code, § 12940 et seq.), or violated some other clear and fundamental public policy (Foley, supra, at pp. 665-670 ; Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 172-179 [ 164 Cal.Rptr. 839 , 610 P.2d 1330 , 9 A.L.R.4th 314 ]).

Finnegan may well have been correct in its assertion that patronage is a wise and important traditional component of democratic union government. If so, high-level union appointees like Barbara Smith, the complainant in this case, will be hard pressed to prove in California that they had express or implied guarantees against arbitrary removal. Where, as here, only an implied contract is alleged, crucial considerations include “ ‘the personnel policies or practices of the employer . . . and the practices of the industry in which the employee is engaged.’. . .” (Foley v. Interactive Data Corp., supra, 47 Cal.3d at p. 680 , quoting Pugh v. See's Candies, Inc. (1981) 116 Cal.App.3d 311, 327 [ 171 Cal.Rptr. 917 ].) Thus, long service, regular raises, and consistent praise from supervisors will not prove an implied contract where all parties must reasonably have understood that the particular relationship was personal, confidential, and subject to discretionary termination. 3

On the other hand, a particular union might decide in good faith that it wishes to abandon at-will employment, and to develop some form of express or implied “merit” system for its high-level appointees. If it accomplishes that goal by appropriate means, I see absolutely nothing in federal policy which would prevent state enforcement of the remedies thereby created. 4

*1038 For all these reasons, I can accept neither the majority’s analysis nor Justice Arabian’s. I find no preemption, and I would disapprove the Court of Appeal’s holding in Tyra v. Kearney, supra, 153 Cal.App.3d 921 , to the extent it suggests the contrary. For this reason, and because I cannot say on the record before us that Smith’s claims are absolutely precluded as a matter of state law, 5 I would affirm the judgment of the Court of Appeal.

Broussard, J., concurred.

I am not persuaded otherwise by footnote 12 of Finnegan . There the court proposed that if Congress had contemplated interfering with union patronage, the unions’ “substantial resistance” would likely have produced “some express accommodation to the needs of union employers to appoint and remove policymaking officials . . . .” ( 456 U.S. at p. 441 [ 72 L.Ed.2d at p. 247 ].) I read this passage only as emphasizing that in its actual form, the LMRDA was not intended to regulate such practices.

Contrary to the majority, Justice Arabian suggests that we can distinguish between “garden-variety” and “patronage” discharges, deeming only the former to be within the preemptive concerns of the LMRDA. (Dis. opn. of Arabian, J., post, at pp. 1048-1055; see also Bloom v. General Truck Drivers, supra, 783 F.2d at pp. 1361-1363.) Even the majority imply that the LMRDA may not preempt claims based on fundamental state statutory policies. (Maj. opn., ante, at p. 1026, fns. 6 & 7.) I am not persuaded. As the majority suggest, the true motives for a discharge are often obscure and indirect. That leaves room for artful drafting of *1037 complaints, and for endless litigation about the “real” reasons why a particular employee was fired.

Even where the claim is based on an express oral or written agreement, the employee cannot prevail under state contract law where there was no actual or apparent authority for the promise. When an organization’s leaders are democratically elected for fixed terms, their promises to high-level subordinates, unless made in compliance with authority granted by the membership, may well not be binding on their successors in office. (Cf. Burke v. Bevona (2d Cir. 1989) 866 F.2d 532, 537 .)

In this case, the union also claims the LMRDA furthers the right guaranteed workers by section 7 of the National Labor Relations Act (NLRA) ( 29 U.S.C. § 141 et seq.) to “bargain collectively through representatives of their own choosing.” ( 29 U.S.C. § 157 ; see also 29 U.S.C. § 401 [LMRDA, § 2].) This right, the union observes, includes the workers’ “full freedom,” unhindered by local regulation, to select the officials and agents through whom the chosen representative acts. (Hill v. Florida (1945) 325 U.S. 538 , 541 [ 89 L.Ed. 1782, 1784 , 65 *1038 S.Ct. 1373 ], but see Brown v. Hotel Employees, supra, 468 U.S. 491, 509 [ 82 L.Ed.2d at p. 388 ].) Thus, the union concludes, one elected by the members to conduct the union’s affairs inherits their “full” and unhindered freedom to hire and fire subordinate agents. However, in the exercise of its “full freedom,” the membership can decide, or designate representatives to decide, what personnel practices the union will employ. Often the choice will be that subordinate agents should serve solely at the pleasure of the elected leadership. On the other hand, if the union’s rules or policies, validly adopted, create state-law expectations of more secure employment, I see nothing in section 7 of the NLRA that precludes resort to appropriate state remedies.

Smith makes the usual claims of longevity, salary increases, and praise for her performance. As noted above, however, these factors may have little bearing on reasonable expectations in democratically governed organizations such as unions. Of greater interest are the union’s constitution, bylaws, and published personnel policies. Smith’s removal was accomplished, as the union constitution and bylaws require, by a majority vote of the elected board of directors. (Art. V, § 7(b).) The union’s personnel manual, however, contains conflicting statements of the circumstances under which removal of an appointed employee may occur. Article IX, titled “Termination,” declares that “[t]he Guild may terminate employment at will” and that “[t]he employer expressly has not granted any employee any vested right or contract as to any guarantee or length of employment.” However, article VIII, titled “Job Performance,” provides that when an employee’s performance is considered “below standard,” he or she is entitled to warning and a “reasonable opportunity for correction;” if “no improvement is [thereafter] noted,” the national executive secretary may recommend to the board that the employee be dismissed. Smith asserts she received no adequate warning of perceived deficiencies. Moreover, there appears to be a dispute whether Smith was fired, or whether she simply was not rehired after taking temporary “retirement.”