My Photo

Twitter Updates

    follow me on Twitter

    September 2016

    Sun Mon Tue Wed Thu Fri Sat
            1 2 3
    4 5 6 7 8 9 10
    11 12 13 14 15 16 17
    18 19 20 21 22 23 24
    25 26 27 28 29 30  

    « Happy [Belated] Anniversary, Justice Thomas | Main | Review Denied: Lewis v. Robinson Ford Sales, Inc. »


    Barbara Adams


    There are really two parts to your question about Grant Burton and about the viability of 923, 232.5 and 232 cases.

    1. After Luke, is there now a conflict between appellate decisions? Even though Grant-Burton didn't address preemption, as a practical matter there really has to be. The conduct in question in Grant-Burton (everybody sitting around in a circle "disclosing" information about their "wages") was really clearly protected activity under the NLRA. So if you buy Luke, then the application of 232 to Grant-Burton is preempted. But the situation is muddy enough I'm not sure the Supremes would take this on.

    2. But does Luke mean that all 232 and 232.5 actions are preempted? Clearly not. The statutes protect "disclosure" to anyone, not just in connection with concerted action. And Luke suggests that whether or not the case is preempted is a case by case determination.

    I blogged about this on our employment blog a few days ago:

    Also, I argued an appeal dealing with 232 and 232.5 at the First District Court of Appeal last Thursday, and expect we'll see a decision on these in the next couple of weeks. In our case (Harvey v. Sybase) the disclosures were not concerted action, but were up-stream, from employee to company vice-president. Preemption wasn't briefed by the parties, although defense counsel did call Luke to the Court's attention.

    Based upon the new realty that many 232.5 claims my be preimpted, I believe that we have to study up on NLRA Section 7 and 8 as well as the procedure for making NLRB claims (a one page form). Significantly, the statute of limitations for making such claim is only 6 months from the adverse action. The predominant remedy is reinstatement, coupled with back pay. Mitigation of damages is apparently a real issue as to back pay.

    Question: if our facts show a grey area as whether Sections 7 and 8 would cover our Labor Code 232.5 facts, it may be reasonable and proper to file the NLRB claim within the 6 month period to preserve the rights under that Act. I understand there may be a downside to that: defense attonrey in the state court action under 232.5 would argue that filing the NLRB claim represents an admission or grounds for judicial estoppel that the complained of activities were "concerted" within the meaning of Section 7 and 8 (and thus preempted). However, I think we may be able to avoid that by taking the position that we are engaging in a form of alternative pleading. That is, the NLRB Claim should allege a caveat stating that we are UNCERTAIN whether the protected conduct our client engaged in qualifies as "concerted action" within the meaning of NLRA, but because of preemption law, we must file the NLRB claim in an abundance of caution and as an "alternative theory of liability." What do you think?

    K Merrill

    The comments to this entry are closed.

    Become a Fan

    AddThis Social Bookmark Button