Richard B. Luke v. Collotype Labels USA, Inc.,
Filed February 14, 2008,
SC CT No.: 26-33214

Complaint for Wrongful Termination Pre Empted by the NLRA

Luke was employed by Collotype as a maintenance Engineer in 2003. Collotype was a manufacturer of premium wine and liquor labels.

On September 6, 2005, Collotype suspended Luke for three days based on the allegation that Luke was not honest about having his position covered during a planned absence.

This allegation was disputed by Luke asserting he had been available by cell phone.

In the meantime, on September 8th, Luke sent an e-mail to Nigel Vinecombe, the group managing director for Collotype’s office in Australia, titled “trouble brewing.” In it, Luke stated: “Sorry to bother you. I usually go through my chain of command, but this will not work here at this plant. Would you please call me?”

On September 9th, Collotype terminated Luke’s employment.

A termination memorandum was sent by the employer to Luke to that effect. Along with other grounds for termination, the memorandum stated to the effect that employment of Luke at Collotype is being terminated for blatant insubordination and conduct detrimental to the team, effective today-immediately.

In that instance, Luke filed a complaint against Collotype in which he alleged two causes of action: namely,

1. for wrongful termination in violation of public policy, one based on Labor Code section 923,


2. and the other on section 232.5.

Collotype filed a motion for summary judgment, based on the sole ground that both causes of action were pre-empted by the NLRA.

The trial court granted the motion and entered judgment in Collotype’s favor, finding that the complaint alleged “nothing more than unfair labor practices that are pre-empted by federal law and, therefore, are not properly heard in this tribunal.”- being premature.

This timely appeal followed.

The only issue, then, is whether Luke’s cause of action for wrongful termination, in violation of a public policy of this state, is pre-empted by the NRLA.

The court ruled, following the ruling by the court in (Linn v. Plant Guard Workers. (1966) 383 U.S. 53, 60 (Linn). While the NLRA contains no express pre-emption provision, the Supreme Court mandates that state courts “must defer to the exclusive competence of the National Labor Relations Board in cases in which the activity that is the subject matter of the litigation is arguably subject to the protections of [section] 7 or the prohibitions of [section] 8 of the [NLRA].”

In the matter of Luke contention that that his cause of action for wrongful termination in violation of California public policy falls within an exception to the general rule of NLRA pre-emption.

The Supreme Court has articulated two distinct exceptions to the broad pre-emptive effect of the NLRA.

1. First, where the regulated conduct touched interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act. (San Diego Unions v. Garmon (1959) 359 U.S. 236 (Garmon).


2. Second, the state laws and state causes of action are pre-empted when they concern conduct that Congress intended to leave unregulated. (Machinists v. Wisconsin Emp. Rel. Com’m. (1976) 427 U.S. 132,)

The Appellate court has found that Luke’s causes of action do not fall within the above exceptions.

Further, the court stated, that despite the broad language in Paige, Garibaldi, and other cases cited, there is no blanket exception to NLRA pre-emption for all causes of action for wrongful termination in violation of state public policy.

Accordingly, the court has ruled that Luke’s complaint for wrongful termination in violation of California public policy is pre-empted by the NLRA.