Friday, September 23, 2016

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C.A. Revives Wrongful Firing Suit Against Local Company

Federal Labor Law Does Not Preempt Action by Supervisor Allegedly Fired for Talking About Union, Panel Says

By KENNETH OFGANG, Staff Writer

A former supervisor who claims he was fired for discussing the potential unionization of his company can sue the employer for wrongful termination in violation of public policy, the Court of Appeal for this district has ruled.

Div. Two yesterday certified for publication its Sept. 1 opinion reviving the suit by Khanh Dang against Maruichi American Corporation. Dang said the company fired him for engaging in concerted activity related to potential unionization, but Los Angeles Superior Court Judge Elizabeth Feffer granted summary judgment on the ground the suit was preempted by the National Labor Relations Act.

Presiding Justice Roger Boren, writing for the Court of Appeal, said the trial judge erred because it is beyond dispute that supervisors are not protected by the NLRA with respect to the activity Dang claims to have engaged in.

Local Subsidiary

Maruichi is a Santa Fe Springs-based subsidiary of a Japanese company, and sells steel tubing. In support of its summary judgment motion, it said it fired Dang prior to a unionization election held in September 2013, and did so because Dang, a maintenance supervisor, had mistreated employees, leading to the successful organizing bid.

Dang responded that he was fired for engaging in such activity as asking employees about the status of organizing efforts, and talking to the workers about what he saw as advantages and disadvantages of union representation. While he argued that he was not protected by the NLRA, Feffer ruled that only the National Labor Relations Board could decide that issue.

Boren explained, however, that under San Diego Unions v. Garmon (1959) 359 U.S. 236, preemption would apply only if the claim were “arguably subject to” §7 or §8 of the NLRA. Section 7 protects the rights to organize, join a union, bargain collectively, and engage in other concerted activity, while §8, among other things, bars employers from interfering with employees’ exercise of their §7 rights.

High Court Authority

Under U.S. Supreme Court authority, Boren added, it is for the state court, not the NLRB, to determine in the first instance whether the claim of preemption is arguable, and the burden of proving that is on the party making the claim.

Here, he went on to say, the employer presented no evidence to support a preemption argument. Because an employer may insist on the loyalty of its supervisors, and thus bar them from engaging in activity that their subordinates have a right to engage in under the NLRA, the firing of a supervisor for engaging in such activities does not violate §8 unless the supervisor’s firing “directly interferes” with the employees’ exercise of their own rights, Boren explained.

“Based on the evidence presented on the motion for summary judgment, there are no grounds to find that the discharge of Dang may have interfered with Maruichi employees’ section 7 rights,” he said.

NLRB Ruling Distinguished

This was not, Boren elaborated, a case involving termination of a supervisor for testifying adversely to an employer’s interest, refusing to commit an unfair labor practice, or failing to prevent unionization, all of which the NLRB have held to violate the statute.

“Indeed, Maruichi’s stated reason for terminating Dang’s employment—that he mistreated employees, spurring them to consider unionizing—was not arguably likely to impact its employees’ ability to engage in activity protected by section 7,” the presiding justice wrote. “And Dang’s explanation for his discharge—that he asked benign questions relating to potential unionization and expressed no opinion to employees regarding the union—could (at most, and only under a very liberal view of the evidence) possibly constitute a supervisor’s participation in concerted activity, termination for which is not a basis for finding a section 7 or 8 violation.”

Attorneys on appeal in Dang v. Maruichi American Corporation, 16 S.O.S. 4782, were Michael A. Gould and Aarin A. Zeif of Gould & Associates for the plaintiff, and Cummins & White’s Larry M. Arnold, Erick J. Becker and Scott R. Carpenter for the defendant.