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Court of Appeal, First District, Division 1, California.

Leonard L. MEYERS, Plaintiff and Appellant, v. WILLIG FREIGHT LINES, INC. et al., Defendants and Appellants.

No. AO35653.

Decided: December 15, 1987

Arthur J. Pollock, San Carlos, for plaintiff and appellant. Eric C. Kastner, James J. Der, Jr., Newton & Kastner, Mountain View, for defendants and appellants.

On February 17, 1984, appellant, Leonard L. Meyers (hereafter Meyers) filed a complaint seeking damages for wrongful discharge in violation of his union contract.   An amended complaint, seeking damages for intentional infliction of emotional distress and violation of Labor Code section 432.7 was filed on January 18, 1985.

On December 13, 1985, appellant, Willig Freight Lines, Inc. (hereafter Willig) filed a motion for summary judgment which was granted on May 22, 1986.

The facts pertinent to this appeal are summarized as follows.   On February 18, 1982, Meyers left San Francisco driving Willig's tractor/trailer en route to Los Angeles.   After reaching Los Angeles, he completed some paperwork and walked to his car carrying an overnight bag.

Based on an informant's tip that Meyers would be carrying drugs, the Los Angeles County Sheriff's Department executed a search warrant and found cocaine, a loaded pistol and other contraband in Meyers' overnight bag.   Willig's terminal manager spoke with a member of the sheriff's department who told him the facts surrounding the incident.

Article 46, section 1 of the union contract provides that “[N]o warning notice need be given to an employee before he is suspended or discharged if the cause of such suspension or discharge is:  ․ [s]elling, transporting or use of illegal narcotics while in the employment of the Employer;  ․” Meyers' manager in San Francisco was also apprised of the situation and fired Meyer for violating article 46.

Under the union contract, Meyers filed a timely grievance which was heard by the Cal–Bay Area Committee on March 15, 1982.   The committee heard evidence from both sides, including Meyers, but was unable to agree on a decision.   In such instances, the union contract provides that the grievance is to be appealed to the next level.   On May 11, 1982, the committee, composed of two people representing the union and two people representing Willig, unanimously sustained Meyers' discharge.

On June 15, 1982, Meyers pleaded guilty to possession of a concealed handgun and was fined.   The remaining drug charges against him were dismissed on condition that he successfully complete a drug diversion program pursuant to Penal Code section 1000 et seq.

Meyers contends that he was fired on the basis of his arrest in violation of Labor Code section 432.7, which provides in pertinent part:  “(a) No employer ․ shall ask an applicant for employment to disclose ․ information concerning an arrest or detention which did not result in conviction, or information concerning a referral to and participation in any pretrial or posttrial diversion program, nor shall any employer ․ utilize, as a factor in determining any condition of employment including hiring, promotion, termination, or any apprenticeship training program or any other training program leading to employment, any record of arrest or detention which did not result in conviction, or any record regarding a referral to and participation in any pretrial or posttrial diversion program.   As used in this section, a conviction shall include a plea, verdict, or finding of guilt ․ by the court.   Nothing in this section shall prevent an employer from asking an employee or applicant for employment about an arrest for which the employee or applicant is out on bail or on his or her own recogniznance pending trial.”

Willlig, however, contends that section 432.7 is preempted by section 301 1 of the Labor–Management Relations Act which provides that “[s]uits for violation of [labor] contracts ․ may be brought in any district court․”  (29 U.S.C. § 185(a).)   Any state law which purports to define the meaning or scope of a contractual provision is preempted by federal labor law.  (Teamsters Local v. Lucas Flour Co. (1962) 369 U.S. 95, 104, 82 S.Ct. 571, 577, 7 L.Ed.2d 593.)

In Allis–Chalmers Corp. v. Lueck (1985) 471 U.S. 202 105 S.Ct. 1904, 85 L.Ed.2d 206, our nation's high court was called upon to consider whether the bad faith handling of an insurance claim, which involved the terms of a collective bargaining agreement, was preempted by the Labor–Management Relations Act section 301.   The court held that when the resolution of a state law claim is substantially dependent upon an analysis of a collective bargaining agreement, the claim must either be treated as a section 301 claim or dismissed as preempted by federal labor-contract law.  (Id. 105 S.Ct. at p. 1916.)   In so holding, the court expressly recognized that it could not limit preemption solely to suits involving an alleged breach of contract since plaintiffs would merely relabel their claims to avoid preemption, stating:  “[Q]uestions relating to what the parties to a labor agreement agreed, and what legal consequences were intended to flow from breaches of that agreement must be resolved by reference to uniform federal law, whether such questions arise in the context of a suit for breach of contract or in a suit alleging liability in tort.   Any other result would elevate form over substance and allow parties to evade the requirements of § 301 by re-labeling their contract claims as claims for tortious breach of contract.”  (Id. 105 S.Ct. at p. 1911.)

Willig correctly observes that it is impossible to consider Meyers' tort claim without reference to the collective bargaining agreement which specifically gave Willig the right to summarily discharge Meyers if he were found to be selling, transporting or using drugs while in Willig's employ.   And when “evaluation of the tort claim is inextricably intertwined with consideration of the terms of the labor contract,” preemption is established.  (Allis–Chalmers Corp. v. Lueck, supra, 105 S.Ct. at p. 1912.)

Meyers, however, contends that when a right exists under state law, independent of the labor contract, preemption does not occur.   In so contending, he relies on the following language found in Allis–Chalmers:  “Clearly, § 301 does not grant the parties to a collective-bargaining agreement the ability to contract for what is illegal under state law.   In extending the pre-emptive effect of § 301 beyond suits for breach of contract, it would be inconsistent with congressional intent ․ to pre-empt state rules that proscribe conduct, or establish rights and obligations, independent of a labor contract.  [¶] Therefore, state-law rights and obligations that do not exist independently of private agreements, and that as a result can be waived or altered by agreement of private parties, are pre-empted by those agreements.   [Citation.]”  (Id. 105 S.Ct. at p. 1912, fn. omitted.)

Thus, Meyers asserts that section 432.7, which prohibits employers from discharging employees on the basis of an arrest, is independent of the collective bargaining agreement, and cites Garibaldi v. Lucky Food Stores, Inc. (9th Cir.1984) 726 F.2d 1367, in support of that contention.   There, plaintiff contended that he was discharged in retaliation for reporting a load of spoiled milk.   State law required that such a report be made and plaintiff asserted that he was discharged in violation of that public policy.   The court rejected the defendant's contention that the suit was preempted by federal law and held that the preemption doctrine does not bar claims which rest directly upon a claimed violation of state public policy.  (Id. at pp. 1373–1375.)

Meyers asserts by parity of reasoning that preemption does not bar this action since his complaint alleges that he was terminated in violation of the public policy articulated in Labor Code section 432.7.   While his argument has superficial appeal, an examination of the purpose behind section 432.7 reveals that on the facts of this case no violation of public policy has occurred.

A legislative counsel's opinion to the author of Labor Code section 432.7, supports our conclusion.   That opinion addressed the question of whether a city employee who engages in conduct which leads to his arrest may be discharged by the city through the use of testimony of percipient witnesses of the misconduct.   The legislative counsel opined that discipline could be imposed by utilizing information other than the arrest record standing alone, concluding that an employer could use the arrest record to obtain witnesses whose testimony could establish the misconduct.

Here, Willig's Los Angeles terminal manager spoke with a sheriff's deputy who informed him about the contraband found in Meyers' possession, thereby establishing the latter's misconduct.   The facts in the instant case thus fall squarely within the situation envisioned in the legislative counsel's opinion which concluded that arrest records may be utilized to identify witnesses who would establish the employee's misconduct.   We hence conclude that the dismissal of Meyers did not violate Labor Code section 432.7 and that, accordingly, the trial court did not err by granting Willig's motion for summary judgment.2

The judgment below is affirmed.   Costs to Willig.


1.   Section 301 has since been repealed and can now be found in 29 U.S.C. § 185(a).   Because case law discussing the subject consistently refers to section 301, we will continue to do so throughout the opinion.

2.   In its appeal, Willig challenges the propriety of certain pretrial rulings, contending that the trial court erred by granting Meyers' motion to quash the subpoena duces tecum of the police records.   Because Meyers' cause of action was properly dismissed on the basis of preemption, these questions need not be addressed.

NEWSOM, Associate Justice.

ELKINGTON, Acting P.J., and HOLMDAHL, J., concur.