Metropolitan News-Enterprise


Wednesday, July 2, 2003


Page 1


Court of Appeal Rules:

U.S. Law Does Not Bar Employee of Union From Suing for Bias


By KENNETH OFGANG, Staff Writer/Appellate Courts


Federal labor law does not preempt claims by a labor union employee that he was fired on the basis of age and disability, the Court of Appeal for this district has ruled.

The justices of Div. Seven Monday reinstated Fair Employment and Housing Act and common-law wrongful termination claims by Donald C. Smith against International Brotherhood of Electrical Workers Local 11, of which Smith is a longtime member. They also reinstated his claims for intentional and negligent infliction of emotional distress.

In an opinion by Justice Earl Johnson Jr., the court said that the Labor-Management Reporting and Disclosure Act, a law passed by Congress to promote democratic unionism, does not bar claims based on discrimination. “[N]ot in this century; not in this court,” Johnson wrote.

Compliance Officer

Smith is a former compliance officer—a person who makes certain that prevailing wages are being paid on local construction projects—for the union. He was named to that position after supporting Marvin Kropke for business manager, and claims that Kropke promised him he could have the job for as long as Kropke remained in office.

But after Smith was seriously injured in an automobile accident in 1998 and was out of work for two months, Kropke told him that if he wanted to remain employed, it would have to be as an organizer—a job involving more stress, much longer hours, and field work that Smith said was difficult to perform in view of his continuing injuries.

Three weeks after Smith began work as an organizer, he was called into Kropke’s office and asked about rumors that he was planning to challenge the business manager at the next union election. Kropke, Smith claims, demanded that Smith endorse his candidacy for re-election and make a campaign contribution.

Smith said he balked at making the contribution because he had been out of work, and in fact had returned to work against medical advice because he needed the money. The next day, he claims, he was told that the long hours required of an organizer would be detrimental to his health, that he wasn’t “getting any younger,” and that his employment was being terminated “for your own good.”

Los Angeles Superior Court Judge J. Michael Byrne threw out Smith’s claims against the union, holding that the emotional distress claims were subject to workers’ compensation exclusivity, that Smith could not sue for bad-faith termination independent of his breach-of-contract claim, and that his breach-of-contract and anti-discrimination causes of action were preempted by LMRDA.

The Court of Appeal, however, said that only the breach-of-contract claim, and the bad-faith claim with it, was preempted. It concluded that Smith failed to present enough evidence to support the age-bias claim, but said he could sue for disability discrimination and infliction of emotional distress.

Ruling Distinguished

Johnson distinguished a Court of Appeal ruling holding that LMRDA preempted a wrongful termination suit by a union employee who claimed she was fired for supporting Proposition 226, a failed ballot measure that would have barred unions from using dues money for political campaigns.

That decision, the justice said, does not establish “a broad rule all employment-related tort claims against a union and its elected officials are preempted by the LMRDA in order to ensure union democracy.”

Instead, Johnson reasoned, LMRDA preempts state-law claims only when the state law directly conflicts with the union’s ability to carry out the purposes for which LMRDA was enacted. “Nothing in the LMRDA even remotely condones the practice of age or disability discrimination on the part of elected union officials nor does Kropke contend he was elected to carry out a policy of discrimination against employees who are over the age of 40 or disabled,” the justice wrote.

Attorneys on appeal were Helena Sunny Wise for Smith and Hope J. Singer, Robert Kropp Jr. and Renee E. Jacobs of Geffner & Bush for the union.

The case is Smith v. International Brotherhood of Electrical Workers, Local Union 11, 03 S.O.S. 3482.


Copyright 2003, Metropolitan News Company