Petition for Writ of Certiorari — Lastimosa v. Hughes Aircraft Co.

| FILED

87 = 12 63 JAN 28 j996

“PHF. opas

No. _— Ps

Ore = ti

IN THE

Supreme Court of the United States

OCTOBER TERM. 1987

CATALINO LASTIMOSA,

Petitioner,

VS.

HUGHES AIRCRAFT COMPANY

and JACK CURTIS,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

FRED L. WRIGHT

Attorney at Law

Suite D

1515 Crenshaw Boulevard

Torrance, California 90501

(213) 533-5965

Attorney for Petitioner

Lawyers Brief Service / Legal Publishers / (213) 383-4457 / (714) 720-1510

a)

Lo

- if ie. .

v)

(i)

QUESTIONS PRESENTED

In the matter at issue, the Ninth

Circuit Panel refused to consider this

Court's decision in Caterpillar, Inc. v.

Williams (1987) 482 U.S.--, 96 L.Ed.2d

318, 107 S.Ct.--, another Ninth Circuit

Panel decision, Paige v. Henry J. Kaiser

Co., (9th Cir., 1986) 826 F.2d 857, or

other generally applicable principles of

Federal Pre-emption, in holding that

petitioner's claims for damages based on

respondents’ violation of the California

Occupational and Health Safety Act were |

completely pre-empted by Section 301 of

the Labor Management Relations Act

because petitioner may have also had

claims under his CBA. In light of this

holding, the questions presented here

are:

1. Whether claims for damages, based on a

violation of California statutes, man-

(ii)

dating Occupational Health and

Safety, are pre-empted by Section

301 of the Labor Management

Relations Act, where a labor

contract also contains health and

safety regulations.

2. If a federal court accepts jurisdic-

tion on the basis of the well-plead

complaint rule, is it required to

give the plaintiff leave to amend

before dismissing his case on the

basis that the implied claim, in

fact, was not plead?

LIST OF PARTIES

The parties to the proceeding below

were the Petitioner, Catalino Lastimosa,

and the Respondents, Hughes Aircraft

Company and Jack Curtis.

(iii)

TABLE OF CONTENTS

QUESTIONS PRESENTED........ ceccccces

LIST OF PARTIES... cccccccccccscces es

_PETITION FOR WRIT OF CERTIORARI.....

OPINIONS BELOW, ...cccccscccccccsccecs

jt iit «6666 666eeeeee ¢ re ff © © © ed

STATUTES INVOLVED... ccc cccsccccccecs

STATEMENT OF THE CASE.....cceccees oe

REASONS FOR GRANTING THE WRIT.......

l. Lastimosa, as Master of His

Complaint, Was Free to Ignore

Any Federal Remedy He May Have

Had Under the CBA, and Bring

His Claim Based on State Law..

2. If Latimosa Was Required to

Bring a Section 301 Claim as

Opposed to His State Law Claims,

the Ninth Circuit Court of

Appeals Erred By Not Allowing

Him to Assert That Federal

Cameo ececcoeceee 6600066086066 0%

CONCLUSION... cc ccccccccccces a °

APPENDIX A

Memorandum Decision of Ninth

Circuit Court of Appeals,

PEE GULLY 22, 1987. cccccccccece

Order Modifying Memorandum

Decision Judgment, Filed

Dr Oe BOO ls cc ecccceccecece

14

14

(iv)

TABLE OF CONTENTS, CONTINUED

Findings of Fact and Conclu-

sions of Law of District Court,

Filed April 16, 1986...ccccccece

Judgment of Ninth Circuit

Court of Appeals, Filed

November 13, 1987......ccccceseee

APPENDIX B

Portions of California

Occupational Safety and

“~—-—

a UR. a a) os» Pee

(Vv)

TABLE OF AUTHORITIES

Caterpillar v. Williams (1987)

482 U.S.--, 96 L.Ed.2d 318,

Crm Ah Pee T Te TPTTreyrrrrrrrrrrrr?Ts 12,13

14,20,21

26,

Comby v. Shell Oil Co. (1980, 5th Cir.)

OLS F.2d OIG. ccccccccccccccccccccce 24

Foman v. Davis (1962)

371 U.S.178, 9 L.Ed.2d 222,

BS S.C. 227 cccccccscccccccscccccecs 25

Hentzel v. Singer Co. (1982)

138 Cal.App.3d 290, 301.........004. 18

Paige v. Kaiser Co. (9th Cir., 1986)

B26 F.2d Bol ecccccccccccccsccccccces 13,

14,20,

21,

Tameny v. Atlantic Richfield Co.

C2960) 27 Cal. 3G LOZ scccccccccsccccs 17

United Airlines v. Occupational

Health and Safety Appeals Board

C2962) 32 COL. 5G TOdecccccccceesees 18

Vaca v. Sipes (1967)

FOS Gebs Lib g AIPccvsvcssdssesecseses 17

STATUTES

Section 301, Labor Management

RELACIONS AClcccccccceccccecececeses 3,4

10,11,

15,16,

20,21,

TABLE OF AUTHORITIES, CONTINUED

28

29

29

—

2

wv

ad

La

Vv"

a

o-

Wh

20 S667 (EC) cccccccccesccccceees

California Labor Code Sections 6300,

6310, Edll cccccccecesseseeeeseseses

IN THE

SUPREME COURT

OF THE UNITED STATES

CATALINO LASTIMOSA,

HUGHES AIRCRAFT COMPANY

and JACK CURTIS,

PETITION FOR A WRIT OF CERTIORARI!

OPINIONS BELOW.

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Relations Act. Relevant portions of

Cal-OSHA are reprinted in Appendix "B",

along with Section 301 of the Labor

Management Relations Act.

STATEMENT OF THE CASE

Petitioner, Catalino Lastimosa

("Lastimosa") was an employee of

Respondent Hughes Aircraft Company

("Hughes"), at its Torrance, California,

l/ facility. From November, 1982, to

approximately June 28, 1984, he was

employed as a furnace operator in the

furnace room.

Lastimosa worked with gas furnaces

used to braze electronic circuits. The

external surfaces of the furnaces were

wrapped in asbestos. During the time

Lastimosa worked in the furnace room,

l/ The facts set forth in the instant

petition are supported by the excerpts

of record submitted in Lastimosa v.

Hughes, et al., District Court Case

No. 85-2780, Court of Appeals Case

No. 86-5899.

large amounts of dust during the brazing

process. The dust and abestos caused

Lastimosa respiratory problems.

Beginning in March, 1984, Lastimosa

requested Hughes' approval to wear a

paper dust mask when he was working in—

the furnace room. Hughes issued the mask

to Lastimosa, which he wore without inci-

dent until May 30, 1984. On that date

and in response to the complaints made by

Lastimosa, Cal-Osha inspectors conducted

an inspection of the furnace room at the

Hughes facility. On June 12, 1984,

Hughes, without regard to the fact that

use of the mask was improving Lastimosa's

respiratory problems, informed Lastimosa

that he would no longer be permitted to

wear the dust mask while working.

At all relevant times, Lastimosa was

a member of the Electronic and Space

Technician's Local 1553 of the AFL-CIO

-6-

(the "Union"). Through collective

bargaining, the Union and Hughes had

entered into a contract governing terms

and conditions of Lastimosa's employment

at Hughes. That contract required Hughes

to provide its employees a safe place to

work and required all employees to wear

all issued safety devices. It also pro-

vided that no employee could be ter-

minated without cause and set forth a

grievance mechanism for dispute resolu-

tion. The final step in the grievance

procedure was arbitration, which the

Union was required to initiate.

Initially, in response to Hughes'

order, Lastimosa stopped wearing the

paper mask and filed a grievance,

asserting that he was required and

authorized to wear the paper mask under

the CBA.

While his grievance was pending, and

on June 22, 1984, Hughes began replacing

the abestos on the furnaces with new

abestos, thereby increasing the risk of

asbestos exposure. Lastimosa refused to

work without the paper mask and was

removed from the premises. Hughes

notifed Lastimosa by letter that unless

he returned to work on June 28, 1984, and

agreed to work without the dust mask, he

would be terminated. Lastimosa refused

to agree to work without the mask and was

terminated by Hughes on June 28, 1984.

In October, 1984, Lastimosa's grievance

was denied and his Union refused to take

the matter to arbitration.

Lastimosa dropped his CBA claims and

on February 22, 1985, filed this action

in the Superior Court of California,

County of Los Angeles. He sought damages

from respondents, contending his ter-

Mination violated California Labor Code

Sections 6310 and 6311, which make it

unlawful for an employer to terminate an

employee for filing a complaint with

Cal-OSHA or for refusing to work in an

unsafe work environment. He claimed both

the lost wages authorized by statute and

tort damages under the wrongful discharge

theory recognized by the California

Supreme Court in Tameny v. Atlantic

Richfield Co. (1980) 27 Cal.3d 167.

Respondents Hughes and Curtis were

served with the summons and complaint and

immediately removed the action to federal

court, Claiming federal jurisdiction

under 29 U.S.C.§1441. Respondents

asserted that the action arose under the

laws of the United States because

Lastimosa's claims, although framed under

state law, were required to be brought

under Section 301 of the Labor Management

Relations Act.

After discovery, and on February 20,

1986, respondents moved for summary

judgment, again contending that

petitioner's claims were required to be

brought under the CBA; that said

agreement required arbitration, which the

Union refused to process in petitioner's

case, and therefore, that the case should

be dismissed because it did not allege a

breach of the Union's duty of fair repre-

sentation.

Lastimosa opposed the motion, con-

tending that the district court did not

have jurisdiction to hear his claims

because they were based entirely on state

law and that the case should therefore be

remanded to state court. The district

court found that the California Labor

Code statutes at issue directly impacted

upon the employment relationship by

directing the duties of employers with

a

respect to Occupational Health and

Safety. It concluded that enforcing

these statutes by way of a wrongful

discharge suit would clearly interfere

with the collective bargaining system and

federal labor process. Therefore, the

district court ruled that federal labor

law preempted and prohibited the main-

tenance of both the statutory and public

policy wrongful discharge claims made by

Lastimosa. The court went on to dismiss

the action because Lastimosa had not

alleged that his Union breached its duty

of fair representation in failing to take

his CBA claims to arbitration.

Lastimosa appealed the decision to

the Ninth Circuit Court of Appeals. He

argued that the district court erred in

not allowing him to be the master of his

complaint and in finding that his state

law claims were preempted by Section 301

«ijl.

of the Labor Management Relations Act;

because Congress intended state regula-

tion of Occupational Health and Safety

and the laws at issue were separate from

any claims he may have had under the CBA.

He also argued that it was error for the

district court to imply petitioner a

remedy under the CBA to exercise juris-

diction over his claims by virtue of the

well-plead complaint rule, and then to

dismiss the complaint without allowing

him to assert such federal claims.

The Ninth Circuit Court of Appeals

held that the statutes at issue were not

directed at the general public, and the

policies represented by the state causes

of action were not independent of the

employment relation. It found that the

CBA provided Lastimosa no less protection

than the statutes on which he relied, and

held that to uphold the state cause of

ol2=

action would undermine federal labor

policies favoring uniform interpretation

of collective bargaining agreements and

the exclusivity of union-employer

grievance procedures. Accordingly, it

also ruled that Lastimosa's state law

claims were completely preempted by the

Labor Management Relations Act. It also

refused to find that the district court

erred in not allowing petitioner leave to

state a claim to also assert that his

Union violated its duty of fair represen-

tation for not taking his claims to

arbitration.

After the matter was submitted for con-

sideration, this court decided

Caterpillar v. Williams (1987) 482

U.S.°-, 96 L.Ed.2d 318, 107 §.Ct.--,

wherein it recognized that an employee

covered by a CBA may nonetheless have

legal rights arising from the employment

oi 3«

relationship that exist independent of

the CBA, and because the employee is the

master of his complaint, he may assert

those independent rights in the state

court if he chooses. Similarly, after the

decision, another panel of the Ninth

Circuit Court of Appeals decided the case

of Paige v. Henry J. Kaiser Company,

826 F.2d 857 (9th Cir., 1987), holding

that a claim for a wrongful termination,

based on California's public policy as

expressed in Cal-OSHA, was not preempted

by Section 301 of the Labor Management

Relations Act, or the National Labor

Relations Act.

Lastimosa timely petitioned the Ninth

Circuit Panel which decided this case for

a rehearing to reconsider in light of

Caterpillar, Paige, and well established

federal law concerning preemption. The

Panel unanimously refused to rehear or

eléq

otherwise reconsider in light of the

above-cited cases.

WHEREFORE, it is respectfully requested

that this Court grant the writ of certiorari

and order the Ninth Circuit to reconsider in

light of the Caterpillar and Paige deci-

Sions, or otherwise consider the matter

in the first instance.

REASONS FOR GRANTING THE WRIT

l. Lastimosa, As Master of His

Complaint, Was Free to Ignore

Any Federal Remedy He May Have

Had Under The CBA, and Bring His

Claim Based on State Law.

Only a few months ago, this Court in

Caterpillar v. Williams, (1987) 482

U.S.--, 96 L.Ed.2d 318, 107 S.Ct.--,

recognized that it is the plaintiff who

is the master of his complaint and

chooses on which theories he will

proceed. The issue in Caterpillar was

-15-

whether an employee's state law claim for

breach of an individual employment

contract was completely preempted by

Section 301 of the Labor Management

Relations Act of 1947 (and the case

therefore removable to federal court)

because the employee was also governed by

a CBA. In holding that it was not, this

Court reasoned that an employee covered

by a CBA may nonetheless have legal

rights arising from the employment rela-

tionship that exist independent of the

CBA, including state law contract rights,

and because the employee is “the master

of his complaint", he may assert those

independent rights in state court if he

so chooses:

"Section 301 does not, as

Caterpillar suggests, require

that all employment-related

matters involving unionized

. employees be resolved through

collective bargaining and thus

be governed by a federal common

-16-

law created by Section 301.

The Court has stated that not

every dispute concerning employ-

ment or tangentially involving

the provision of a collective

bargaining agreement, is pre-

empted by 301 or other provi-

sions of Federal Labor Law.

(Citations) Claims bearing no

relationship to a collective

bargaining agreement beyond the

fact that they are asserted by

an individual covered by such an

agreement are simply not pre-

empted by Section 301.

(Citation).” Id. 96 L.Ed.2d at

330 Fn. 10.

The graveman of petitioner's state

court complaint in this action was that

he was fired by HUGHES because either he

filed a complaint with the California

Labor Board asserting that unsafe labor

conditions existed at his jobsite; or for

demanding his employer allow him to wear

safety equipment necessary to make his

workplace safe - retaliatory terminations

specifically prohibited by California

Labor Code Sections 6310 and 6311.

-17-

The rights afforded petitioner under

Cal-OSHA, and in particular, the right

protecting him from retaliatory ter-

mination, are rights afforded every

employee in the State of California and

are rights which exist independent of any

CBA to which an employee may be a party.

Similarly, the right of petitioner not to

be terminated for reasons which contra-

vene public policy (Tameny v. Atlantic

Richfield Co. [1980] 27 Cal.3d 167) is

an action in tort and separate from the

employment contract.

Under no circumstances could the

Ninth Circuit properly find preemption

because the termination may also have

violated the CBA. In Vaca v.

Sipes(1967) 386 U.S.171, 179, this Court

recognized that the doctrine of preemp-

tion has absolutely no application where

it cannot be fairly inferred from the

activities of Congress that it intended

exclusive jurisdiction to lie in federal

courts. Concerning matters of

Occupational Health and Safety, the

Congress of these United States has spe-

cifically allowed states to assume

responsibility for the development and

enforcement of standards pursuant to a

plan approved by the Secretary of Labor.

(29 U.S.C.§667[c]; Hentzel v. Singer Co.

[1982] i38 Cal.App.3d 290, 391.)

California adopted Cal-OSHA (Labor Code

Sections 6300, et seq.) in response to

the invitation of the Congress that sta-

tes assume jurisdiction in matters of

occupational health and safety. When

California complied with 29 U.S.C.§667,

federal preemption was removed so that

California could exercise its sovereign

powers over occupational safety. United

Airlines v. Occupational Safety and

——_—————

ai Fx

Health Appeals Board (1982) 32 Cal.3d

762.

Therefore, the fact that petitioner

may have had similar rights under the

CBA, which, pursuant to the terms of that

agreement, would have resulted in

arbitration if the Union so desired to

proceed, is not dispositive. The test is

not whether or not the state statutes at

issue are independent of the employment

relationship, as the Ninth Circuit erro-

neously concluded, but whether the state

right sought to be asserted is indepen-

dent of the CBA.

By choosing to exercise jurisdiction

over Occupational Health and Safety, and

by creating standards, penalties and

remedies for the violation of such stan-

dards, California has provided to its

citizens rights independent of any CBA.

See California Labor Code Section 6300.

-20-

In this case, Lastimosa sought to assert

those independent state law rights but

the Ninth Circuit erroneously concluded

that he must rely solely on the CBA. But

as this Court noted in Caterpillar,

Supra, the fact that plaintiff may have

also had substantial rights under the CBA

and could have brought suit under Section

301, is not dispositive, for as master of

his complaint, he was not required to do

so.

Indeed, in a case decided by a dif-

ferent panel of the Ninth Circuit Court

of Appeals after the rendition of this

ease, the court specifically held that

claims for wrongful termination based on

an employer's termination in violation of

OSHA are not preempted by Section 301 of

the Labor Management Relations Act.

Paige v. Henry J. Kaiser Co. 826 F.2d 857

(9th Cir., 19867).

}

This case is not distinguishable from

Paige and therefore an inconcistency of

decision on the isSue exists within the

Ninth Circuit. But since the decision in

Paige is consistent with the Caterpillar

decision, and this case is not, it is

respectfully requested that this Court

issue certiorari and order-~the Ninth

Circuit to reconsider this matter on the

basis of Caterpillar and Paige, or decide

the matter in the first instance.

2. If Lastimosa Was Required to

Bring a Section 301 Claim as

Opposed to His State Law Claims,

the Ninth Circuit Court of

Appeals Erred By Not Allowing

Him to Assert That Federal Claim.

As set forth early in this Petition,

Lastimosa initially filed this case in

state court seeking damages on purely

state law theories. The respondents

-22-

removed the action to federal court, con-

tending that as petitioner had a poten-

tial remedy under his CBA, the state law

claims were completely preempted by

Section 301 of the Labor Management

Relations Act. The district court

accepted jurisdiction on the basis of the

artful pleading and well-plead complaint

rules, finding that a properly plead

complaint would have contained a cause of

action based on Section 301 of the Labor

Management Relations Act.

Throughout the proceedings, Lastimosa

contended that he was not making any CBA

claims, and wanted to rely solely on his

state law claims. However, he requested

that if the court found he was required

to bring claims based on Section 301,

that it allow him to proceed on such a

claim.

After finding that Section 301 of the

=33-

Labor Management Relations Act preempted

his state law claims, the district court

dismissed the case because the complaint

did not contain any allegation that the

Union breached its duty of fair represen-

tation by failing to take the matter to

bitration. In so ruling, the district

Ourt did not specify any reason for not

allowing petitioner to proceed on the

implied 301 claim.

Federal Rule of Civil Procedure 15(a)

states that leave to amend the complaint

shall be freely given when justice so

requires. Since the court implied a 301

claim to accept jurisdiction, justice

required that at a miminum, petitioner be

given the right to prosecute the implied

claim.

It has always been recognized that

controversy should be decided on the

merits whenever practical, and therefore,

o2ia

amendments should be liberally allowed.

Comby v. Shell Oil Co. (1980 Court of

Appeal 5th) 615 F.2d 698.

In its Opinion affirming the district

court decision, the Court of Appeal did

not discuss the district court's refusal

to allow Lastimosa to proceed on a 301

claim. In response to Lastimosa's

request for rehearing on that issue, the

court simply modified the language of its

Opinion, stating: "The district court

did not err by failing to imply an amend-

ment of plaintiff's complaint, to include

a claim of the breach of the duty of fair

representation." In short, neither the

Court of Appeal nor the district court,

gave any justifiable reason for not

allowing petitioner to proceed on the

federal claim which it had determined to

be his remedy. Such a ruling is not an

exercise of discretion, but an abuse of

=96 =

discretion which is inconsistent with the

spirit of the Federal Rules of Civil

Procedure. Foman v. Davis (1962) 371

U.S. 178, 9 L.Ed. 24 222, 83 S.Ct. 227.

Therefore, it is respectfully

requested that this court issue a writ of

certiorari ordering the Ninth Circuit to

reconsider in light of the foregoing

decisions, or alternatively explain why

petitioner is not entitled to prosecute

the federal claim which the court implied

was his remedy. |

CONCLUSION

Petitioner respectfully submits that

Congress intended that the States exer-

cise their sovereign jurisdiction over

Occupational Health and Safety. Once

California complied with the prerequisi-

tes of 29 U.S.C.§667 and created statu-

tory Occupational Health and Safety law,

it provided California citizens new

-26-

rights and remedies independent of any

collective bargaining agreement.

Petitioner, as master of his complaint,

was entitled to bring his Occupational

Health and Safety claims under state law

and ignore any claims he may have had

under a collective bargaining agreement.

Since the Ninth Circuit, in reaching a

contrary conclusion did not follow the

recent decision of this Court in

Caterpillar v. Williams, or the decision

of another Panel of the Ninth Circuit in

Paige v. Henry J. Kaiser Co., it is

respectfully requested that this Court

issue the Writ and order the Ninth

Circuit to reconsider in view of those

cases.

Alternatively, the irreconciliable

disagreement between the courts on the

preemption issue reflects the need for

resolution of these issues by this

-~ »

Honorable Court, and it is therefore

alternatively requested that this Court

hear the matter in the first instance.

DATED: January 28, 1988 Respectfully Submitted

FRED L. WRIGHT

APPENDIX A

A-1

NOT FOR PUBLICATION

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CATALINO LASTIMOS,

plaintiff-Appeliant.

y

HUGHES AIRCRAFT COMPANY,

JACK CURTIS,

pefendants-Appellees:

Appeal from the United States District

Court for the Central District of

California

Honorable Richard A. Gadbois,

District Judge, presiding

Argued and Submitted December <<, 1986

pasadena, CA

BEFORE: ANDERSON, TANG ** AND CANBY

CIRCUIT JUDGES.

Catalino Lastimosa appeals the District

Court's grant of removal under the artful

A-2

pleading doctrine and subsequent

dismissal of his wrongful discharge claim

against Hughes Aircraft. We Affirm.

I.

We review the district court's ruling

on removal jurisdiction de novo. Bright

v. Bechtel Petroleum, Inc., 780 F.2d

766, 768 (9th Cir.1986).

. This disposition is not appropriate for

publication and may not be cited to or by

the courts of this circuit except as pro-

vided by Ninth Cir. R.2l.

**x Following the death of Judge Solomon,

Judge Tang was randomly selected to

replace him.

Hughes allegedly fired appellant in

violation of company safety rules which

were incorporated into the union's

collective bargaining agreement. Before

bringing his state court action,

Lastimosa challenged the discharge

A~-3

through the labor contract's grievance

process. The district court properly

looked beyond the face of Lastimosa's

state-court complaint to determine that

the discharge involved his assertion of

rights under the collective bargaining

agreement. See, e.g., Williams v.

Caterpillar Tractor Co., 786 F.2d 928,931

N.1 (9th Cir. 1986), affirmed, 55

U.S.L.W. 4804 (Jun. 9, 1987); Bright, 780

F.2d at 769; Olguin v. Inspiration

Consolidated Copper Co. 740 F.2d 1468,

1472-75 (9th Cir. 1984); Fristoe v.

Reynolds Metals Co., 615 F.2d 1209, 1212

(9th Cir. 1980).

Although framed as a state-law tort

and contract action, plaintiff's claim is

actually grounded in the collective

bargaining agreement. See Olguin, 740

F.2d 1468. Appellant's rights in his

state wrongful discharge action substan-

A-4

tially depend on analysis of the terms

of the labor contract and "resolution of

federal question(s) must play a

Significant role in the proceedings."

Williams, 786 F.2d at 931 (quoting Hunter

v. United Van Lines, 746 F.2d 635, 646

(9th Cir. 1984), cert. denied, 106 S. Ct.

180 (1985)); see International

Brotherhood of Electrical Workers v.

Hechler, 55 U.S.L.W. 4694, 4696 (May 26,

1987); Allis-Chalmers Corp. v. Lueck, 471

U.S. 202, 218 (1985).

The California Labor Code Sections

relied on by Lastimosa establish the

duties of employers and provide remedies

for their violation. The statutes are

not directed at the general public and

the policies represented by the state

cause of action are not independent of

the employment relation. E.G., Garibaldi

v. Lucky Food Stores, Inc., 726 F.2s

A-5

1367, 1373-75 (9th Cir. 1984), cert.

denied, 105 S.Ct. 2319 (1985); Friday v.

Hughes Aircraft Co., 188 Cal.App.3d oe

123-24, 225 Cal.Rptr. 89, 93-94 (Cal.Ct.

App. 1986), appeal dismissed as improvi-

dently granted, 236 Cal.Rptr. 290, 735

P.2d 117 (Cal.1987) (distinguishing

Garibaldi). The labor contract provided

Lastimosa no less protection than the

statutes he seeks to rely upon to main-

tain his state cause of action. Id.; see

Harper v. San Diego Transit Corp., 764

F.2d 663, 668-69 (9th Cir. 1985);

Costello v. United Parcel Service, Inc.,

Sh) pames gee, 429-25 (D.C. Pa. 1984)

(interpreting Ninth Circuit Garibaldi and

Olguin cases, court finds §301 of the

Labor Management Relations Act vindicates

same interests as state wrongful

discharge action based on retaliation for

filing workers compensation claim) aff'd

A-6

without published opinion, 774 F.2d 1150

(3d Cir.1985). To uphold plaintiff's

state cause of action would undermine

federal labor policies favoring uniform

interpretation of collective bargaining

agreements and exclusivity of union-

employer grievance procedures. Hechler,

supra; Allis-Chalmers, 471 S.Ct. at

216-18. The wrongful discharge claim is

completely preempted by the Labor

Management Relations Act. See Franchise

Tax Board v. Construction Laborers

Vacation Trust, 463 U.S. 1, 23-24 (1983);

Carter v. Smith Food King, 765 F.2d 916,

921i (9th Cig. i963).

Thus, the district court correctly

characterized the claim as an action for

violation of labor contract under §301 of

the Labor Management Relations Act. 29

U.S.C.§185. Section 301 claims are

within the concurrent jurisdicton of

A-7

state and federal courts. Charles Dowd

Box Co. v Courtney, 368 U.S. 502 (1968).

Removal jurisdiction was appropriate. 28

U.S.C.§1441 (a).

Ads

In the district court, Lastimosa did

not claim that the union breached its

duty of fair representation, as he now

contends on appeal. Although plaintiff

earlier lodged formal charges of union

discrimination with the National Labor

Relations Board, in the district court he

asserted that "no breach of the duty of

fair representation is alleged."

Opposition to Motion for Summary Judgment

at 10. The district court did not err by

refusing to find a breach of fair repre-

sentation on plaintiff's behalf.

Without alleging that the union

breached its duty of fair representation,

Lastimosa's sole remedies were through

A-8

the arbitration and grievance procedures

in the labor contract. Vaca v. Sipes,

386 U.S. 171, 184 (1967); Olguin, 740 F.d

1472 (citating Republic Steel Co. v

Maddox, 379 U.S. 650 (1965)); see also

Fountain v. Safeway Stores, Inc., 555

F.2d 753, 756 n.2 (90h Caies 277s, &h

light of his unsuccessful grievance, the

union's decision not to arbitrate, and

the federal policy of finality in labor

arbitration, the district court properly

dismissed Lastimosa's action.

The district court's decision

upholding jurisdiction under §1441l(a) and

dismissing appellant's action is

AFFIRMED.

A-9

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CA NO. 86-5899

DC NO. 85-2780RG

CATALINO LASTIMOS,

Plaintiff-Appellant,

Vv

ORDER

FILED

October 30,1987

Cathy A. Cat-

terson, Clerk

U.S. Court of

Appeals

HUGHES AIRCRAFT COMPANY,

JACK CURTIS,

Defendants-Appellees.

eee ee

BEFORE: ANDERSON, TANG

QR

CANBY, CIRCUIT

JUDGE

The memorandum disposition previously

filed in this case is amended as follows:

The last sentence in the first

paragraph of Section II of the memorandum

is deleted and the following is substi-

cuted therefor:

"The district court did not err by

failing to imply an amendment of plaintiff's

complaint, to include a claim of breach of

the duty of fair representation."

A-10

The panel has voted unanimously to

deny the petition for rehearing and

Suggestion for rehearing en banc.

The full court has been advised of

the suggestion for rehearing en banc and

no judge of the court has requested a

vote to rehear the matter en banc.

The petition for rehearing is hereby

denied and the suggested for rehearing en

banc is rejected.

A-11

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CATALINO LASTIMOSA, ) Filed Apr.

) 16, 1986

Plaintiff, ) Clerk, U.S.

) District

) Court

vs. ) CASE NO. CV

85-2780-SVW

HUGHES AIRCRAFT COMPANY,

a corporation; JACK CURTIS,

DOES I through 50, Inclusive,

FINDINGS OF

FACT AND CON-

CLUSIONS OF

Defendants. LAW

Se Oe eae

Defendants Hughes Aircraft Company's

and John J. Curtis' motion for summary

judgment came on regularly for hearing on

March 24, 1986 before the Honorable

Stephen V. Wilson, District Judge. Upon

consideration of the oral arguments of

counsel and the papers filed herein, the

Court granted defendants' motion on the

ground that plaintiff's wrongful

discharge claim is preempted by federal

labor law and his sole remedy is under

A-12

the collective bargaining agreement.

Plaintiff Lastimosa wsa an employee

of Hughes Aircraft Company ("Hughes")

covered by the terms of a collective

bargaining agreement (CBA) between Hughes

and Electronic and Space Technicians,

Local 1553 of the AFL-CIO. Lastimosa was

discharged after he refused to work

without a mask due to his concern about

the presence of abestos in his working

environment. Hughes insisted that

Lasimosa work without the mask after an

internal investigation and an investiga-

tion by Cal-OSHA, both prompted by

Lastimosa's complaints, indicated there

was no significant abestos danger.

Subsequent to his discharge,

Lastimosa pursued a grievance against the

company according to the grievance mecha-

nisms established by the CBA, and also

filed an unfair labor practice charge

A-13

with the National Labor Relations Board.

After losing in both forums, Lastimosa

brought the current action for wrongful

discharge under California law.

In opposing this motion, Lastimosa

first argues that the case was removed

improperly to federal court. The

complaint here does not refer to the

union or the collective bargaining

agreement but does state that plaintiff

was discharged without good cause and in

violation of the company's written satiety

rules. Deposition testimony makes clear

that plaintiff's claim in reality is

essentially that he was discharged in

violation of the provisions of the CBA

pertaining to safety and discharge.

Under the doctrine of “artful

pleading", removal is proper where the

actual facts underlying the complaint

indicate that plaintiff actually must

hits

A-14

rely on federal law and a federal remedy

to state a claim. A court is permitted to

look at facts outside of the complaint to

support removal. Olguin v. Inspiration

Consolidated Copper, 740 F.2d 1468, 72-73

(9th C. 1984). Here, although Lastimosa

avoided reference to the CBA in his

complaint, the surrounding facts do indi-

cate that the complaint is making a claim

for breach of the CBA arising under

federal labor law. Thus, removal was

proper.

Under California law, Lastimosa's

wrongful discharge claim can assert any

of three theories: (1) breach of an

implied-in-fact promise not to discharge

without good cause, Pugh v. See's

Candies, Inc., 116 Cal.App.3d 311 (1981);

(2) breach of the covenant of good faith

and fair dealing, Cleary v. American

Airlines, Inc. 11l Cal.App.3d 443 (1980);

A-15

and (3) discharge in violation of public

policy, Tameny v. Atlantic Richfield Co.

27 Cal.3d 167 (1980).

There appears to be no dispute that a

wrongful discharge action based on the

first and second of these theories

clearly is preempted by federal labor

law, specificaiiy §301 of the

Labor-Management Relations Act. Olguin,

supra; Buscemi v. McDonnell Douglas Corp.

736 F.2d 1348 (9th Cir. 1984); Firstoe v.

Reynolds Metal Co., 615 F.2d 1209 (9th

Cir. 1980). Where an employee is covered

by a CBA, state contract actions and

actions for tortious breach of contract

are preempted because the entire contrac-

tual relationship is contained in the CBA

and federal labor law governs all aspects

of the collective bargaining relations.

The Court further finds that

Lastimosa's public policy claim also is

A-16

preempted. Lastimosa contends that he

was discharged for complaining about

safety conditions and filing a complaint

with Cal-OSHA. He argues that his

discharge was in violation of the public

policy expressed in Cal. Labor Code

§6400, which requires an employer to

maintain a safe working place, and Labor

Code §6310, which prohibits the discharge

of an employee due his making safety

complaints.

In Garibaldi v. Lucky Food Stores,

726 F.2d 1367, (9th Cir. 1984), the Court

found that a wrongful termination action

based on public policy was not preempted

where the state statute was important for

general public health and safety and did

not pose any significant threat to the

collective bargaining process. Whether

the current action can avoid preempted

thus depends on whether:

A=-1/

(a) the statutes cited advance a

state interest in protecting the general

public, an interest which is "extrinsic

to" or which "transcends" the employment

relationship; See, Olguin, supra, and

Garibaldi, supra; and

(b) the exercise of state

authority does not frustrate effective

implementation of federal labor processes

Or interfere with or regulate the collec-

tive bargaining process. See New York

Telephone v. New York State Dept. of

Labor, 440 U.S. 519, 99 S.Ct. 1328

(1979); Garibaldi, supra.

With respect to the first element,

the statutes here are not extrinsic to

the employment relationship. Rather,

they directly address and impact upon the

employment relationship by directing the

duties of employers and providing reme-

dies for violations. Unlike the statute

A-18

in Garibaldi, the statutes here are not

directed at the general public or some

non-employment-related problem.

With respect to the second element,

enforcing these statutes by way of a

wrongful discharge suit would clearly

interfere with the collective bargaining

system and federal labor processes. The

CBA here specifically dealt with the

safety responsibilities of management and

the procedure for handling safety

complaints. It also detailed who had the

responsibility and discretion for these

matters, and set out a detailed grievance

procedure which was to be the exclusive

mechanism for handling employee

complaints about violations of the CBA.

Finally, the CBA established the stan-

dards and procedures for termination.

Since all of these provisions were the

result of collective bargaining, enfor-

A-19

cement of the statutes by way of this

wrongful discharge claim would interfere

with the primacy of collective bargaining

as the means for setting the terms of

employment and could undercut the effec-

tiveness of the grievance procedures.

Consequently, the Court finds that

federal labor law preempts and prohibits

the maintenance of this public policy

wrongful discharge action.

Due to the preemption of plaintiff's

wrongful discharge claim, Lastimosa's

sole recourse would be to bring a §301

Suit for breach of the CBA. Since the

CBA provides that the grievance and

arbitration procedures are his sole

remedy for breach, Lastimosa can only

bring a §301 suit against Hughes if he

also makes a claim that the union

breached its duty of fair representation

with respect to the handling of his

A-20

grievance. Since no such claim has been

made against the union, an action cannot

be maintained against Hughes. Thus, sum-

mary judgment in favor of defendants is

appropriate.

DATED: April 16, 1986

STEPHEN V. WILSON

United States District

Judge

A-21

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CATALINO LASTIMOSA,

Plaintiff-Appellant, FILED

HUGHES AIRCRAFT COMPANY, Clerk, U.S.

District ct.

)

)

)

)

V8. ) Nov. 13, 1967

)

)

JACK CURTIS, )

)

)

Defendants-Appellees

No. 86-5899

CV 85-2780 RG

APPEAL from the United States

District Court for the

District of 5

THIS CAUSE came on to be heard on the

Transcript of the Record from the United

States District Court for the Central

District of California and was duly sub-

mitted.

ON CONSIDERATION WHEREOF, It is now

here ordered and adjudged by this Court,

that the judgment of said District Court

in this Cause, be, and hereby is

AFFIRMED.

A TRUE COPY

ATTEST

Cathy A. Catterson

Clerk of Court

By:

Deputy Clerk

Filed and entered July 22, 1987

APPENDIX B

B-1

§6300. PURPOSE

The California Occupational Safety

and Health Act of 1973 is hereby enacted

for the purpose of assuring safe and

healthful working conditions for all

California working men and women by

authorizing the enforcement of effective

standards, assisting and encouraging

employers to maintain safe and healthful

working conditions, and by providing for

research, information, education,

training and enforcement in the field of

occupational safety and health.

§6310. RETALIATION FOR FILING

COMPLAINT PROHIBITED;

OFFENSES

(a) No person shall discharge or in

any manner discriminate against any

employee because such employee has * * *

either (1) made any oral or written

complaint to the division, other govern-

B-2

mental agencies having statutory respon-

sibility for or assisting the division

with reference to employee safety or

health, his employer, or his represen-

tative, or (2) instituted or caused to

be instituted any proceeding under or

relating to his rights or has testified

Or is about to testify in any such pro-

ceeding or because of the exercise by

such employee on behalf of himself or

others of any rights afforded him.

(b) Any employee who is discharged,

threatened with discharge, demoted,

suspended, or in any other manner discri-

mMinated against in the terms and con-

ditions of such employment by his

employer because such employee has made a

bona fide oral or written complaint to

the division, other governmental agencies

having statutory responsibility for or

assisting the division with reference to

B-3

employee safety or health, his employer,

or his representative, of unsafe working

conditions, or work practices, in his

employment or place of employment shall

be entitled to reinstatement and reimbur-

sement for lost wages and work benefits

caused by such acts of the employer. Any

employer who willfully refuses to rehire,

promote, or otherwise restore an employee

or former employee who has been deter-

mined to be eligible for such rehiring or

promotion by a grievance procedure,

arbitration, or hearing authorized by

law, is guilty of a misdemeanor.

§6311. RETALIATION FOR REFUSAL TO

WORK IN VIOLATION OF HEALTH

AND SAFETY STANDARDS; ACTION

FOR WAGES

No employee shall be laid off or

discharged for refusing to perform work

in the performance of which this code,

B-4

including Section 6400, any occupational

safety or health standard or any safety

order of the division or standards board

will be violated, where the violation

would create a real and apparent hazard

to the employee or his or her fellow

employees. Any employee who is laid off

or discharged in violation of this sec-

tion or is otherwise not paid because he

or she refused to perform work in the

performance of which this code, any occu-

pational safety or health standard or any

safety order of the division or standards

board will be violated and where the

violation would create a real and

apparent hazard to the employee or his or

her fellow employees shall have a right

of action for wages for the time the

employee is without work as a result of

the layoff or discharge * * *.

B-5

§6400. SAFE AND HEALTHFUL EMPLOYMENT

AND PLACE OF EMPLOYMENT.

Every employer shall furnish

employment and a place of employment

which are safe and healthful for the

employees therein.

§6401. DUTY TO FURNISH SAFETY

DEVICES AND ADOPT SAFE

PRACTICES AND PROCEDURES

Every employer shall furnish and use

safety devices and safeguards, and shall

adopt and use practices, means, methods,

operations, and processes which are

reasonably adequate to render such

employment and place of employment safe

and healthful. Every employer shall do

every other thing reasonably necessary to

protect the lift, safety, and health of

employees.

B-6

§6403. FAILURE TO FURNISH SAFETY

DEVICES OR ADOPT SAFE

PRACTICES AND PROCEDURES

No employer shall fail or neglect to

do any of the following:

(a) To provide and use safety devi-

ces and safeguards resaonably adequate to

render the employment and place of

employment safe.

(b) To adopt and use methods and

“processes reasonably adequate to render

the employment and place of employment

safe.

(c) To do every other thing reaso-

nably necessary to protect the life,

safety, and health of employees.

§6404. OCCUPANCY OR MAINTENANCE OF

UNSAFE OR UNHEALTHFUL PLACE

OF EMPLOYMENT

No employer shall occupy or maintain

any place of employment that is not safe

B-7

and healthful.

§6406. UNLAWFUL ACTS

No person shall do any of the

following:

(a) Remove, displace, damage,

destroy or carry off any safety device,

safeguard, notice, or warning, furnished

for use in any employment or piece of

employment.

(b) Interfere in any way with the

use thereof by any other person.

(c) Interfere with the use of any

method or process adopted for the protec-

tion of any employee, including himself,

in such employment, or place of

employment.

(d) Fail or neglect to do every

other thing reasonably necessary to pro-

tect the life, safety, and health of

employees.

B-8

§6407. COMPLIANCE WITH STANDARDS,

REGULATIONS, ETC.

Every employer and every employee

shall comply with occupational safety and

health standards, with Section 25910 of

the Health and Safety Codes, and with all

rules, regulations, and orders pursuant

tc this division which are applicable to

his own actions and conduct.

B-9

§6407. COMPLIANCE WITH STANDARDS,

REGULATIONS, ETC.

Every employer and every employee

shall comply with occupational safety and

health standards, with Section 25910 of

the Health and Safety Codes, and with all

rules, regulations, and orders pursuant

to this division which are applicable to

his own actions and conduct.