Filed 9/1/16 Certified for Publication 9/22/16 (order attached)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  SECOND APPELLATE DISTRICT

                                               DIVISION TWO


KHANH DANG,                                                       B269005

         Plaintiff and Appellant,                                 (Los Angeles County
                                                                  Super. Ct. No. BC552668)
         v.

MARUICHI AMERICAN
CORPORATION,

         Defendant and Respondent.



         APPEAL from an order of the Superior Court of Los Angeles County.
Elizabeth R. Feffer, Judge. Reversed and remanded.


         Gould & Associates, Michael A. Gould, Aarin A. Zeif for Plaintiff and Appellant.


         Cummins & White, Larry M. Arnold, Erick J. Becker, Scott R. Carpenter for
Defendant and Respondent.


                 ___________________________________________________
       Plaintiff and appellant Khanh Dang sued his former employer, defendant and
respondent Maruichi American Corporation (Maruichi), for wrongful termination in
violation of public policy, claiming that Maruichi discharged him for engaging in
concerted activity relating to unionizing efforts. The trial court granted summary
judgment in Maruichi‟s favor. The court found it lacked jurisdiction because Dang‟s
claim was preempted by the National Labor Relations Act (NLRA; 29 U.S.C. § 151
et seq.) under San Diego Unions v. Garmon (1959) 359 U.S. 236 (Garmon).
       On appeal, Dang argues that, as a supervisor, he is not covered under the NLRA,
and that the NLRA does not reach his claim. Based on the evidence presented on the
motion for summary judgment, we find there is no basis to conclude Dang‟s claim is
arguably subject to the NLRA. Accordingly, we reverse.
                                    BACKGROUND
       Khanh Dang filed a complaint in July 2014, against Maruichi for wrongful
termination in violation of public policy. The complaint contained only cursory
allegations, stating that Dang worked as a maintenance supervisor for Maruichi until it
terminated his employment because he was involved in concerted activity, including
attempts to join a union.
       Maruichi moved for summary judgment in August 2015, arguing primarily that
Dang‟s claim was preempted by the NLRA. In support of the motion, Maruichi
presented evidence that, in July 2013, it became aware of an effort by the United
Steelworkers to organize employees at Dang‟s place of employment, Maruichi‟s Santa Fe
Springs facility. The union won an election among Maruichi employees and was
certified as their collective bargaining representative in September 2013. Prior to the
election, Dang was discharged because, according to Maruichi‟s general manager,
Maruichi employees indicated Dang‟s mistreatment of them was the reason they wanted
to unionize.
       Dang opposed the motion for summary judgment, arguing that, as a supervisor, his
employment was not subject to the NLRA. He asserted that he was fired for engaging in
concerted activity related to potential unionizing. According to Dang, the activity he

                                             2
engaged in included: discussing the organization of the union with several employees;
asking an employee how meetings about the union went; asking an employee “How[‟s]
the union deal going”; asking what certain employees thought about unionizing; telling
an employee that, as a supervisor, he could not give advice relating to the union; talking
with an employee about the good points and bad points of a union; and telling a fellow
supervisor that the union might make their jobs as supervisors more difficult. When
talking to employees, Dang tried not to express an opinion for or against the union.
       In deciding Maruichi‟s motion for summary judgment, the trial court found that it
lacked authority to determine whether the NLRA applied to plaintiff‟s claim, and that this
was a decision that should be left to the National Labor Relations Board (NLRB). Based
on its determination that state court jurisdiction was preempted, the court granted
summary judgment.
       Dang appealed.1
                                      DISCUSSION
       The NLRA preempts a putative state law claim based on activity subject to
section 7 (section 7; 29 U.S.C. § 157) or 8 (section 8; 29 U.S.C. § 158) of the NLRA.
(Garmon, supra, 359 U.S. 236, 244-245.) Section 7 of the NLRA guarantees the right of
employees to organize, join labor organizations, bargain collectively, and engage in other
concerted activities. (29 U.S.C. § 157; Garmon, at p. 241.) Section 8, as pertinent here,
prohibits employer interference with employees‟ exercise of section 7 rights. (29 U.S.C.
§ 158, subd. (a)(1); Garmon, at p. 241.)
       The NLRB, and not a state court, has exclusive authority to determine whether a
claim “arguably subject to” section 7 or 8 of the NLRA is preempted. (Garmon, supra,
359 U.S. 236, 244-245.) “[W]hen an activity is arguably prohibited or protected by



1      An order granting summary judgment is not appealable. In the interests of justice
and efficiency, we construe the order granting summary judgment as an appealable
judgment. (H.N. & Frances C. Berger Foundation v. City of Escondido (2005) 127
Cal.App.4th 1, 6-7, fn. 5.)


                                             3
section 7 or section 8 . . . the state courts must defer to the exclusive competence of the
NLRB in order to avoid state interference with national labor policy.” (Kelecheva v.
Multivision Cable T.V. Corp. (1993) 18 Cal.App.4th 521, 527-528, citing Garmon, at
p. 245.) State jurisdiction is “extinguished” when there is preemption under Garmon.
(Longshoremen v. Davis (1986) 476 U.S. 380, 391 (Davis).) Matters that are only a
“peripheral concern” of the NLRA, however, or that are “deeply rooted in local feeling
and responsibility,” are not subject to Garmon preemption. (Garmon, at pp. 243-244.)
       Despite the NLRB‟s broad authority, state courts still have a role in the
preemption analysis. “A claim of Garmon pre-emption is a claim that the state court has
no power to adjudicate the subject matter of the case, and when a claim of Garmon pre-
emption is raised, it must be considered and resolved by the state court.” (Davis, supra,
476 U.S. 380, 393.) The requirement that conduct “„arguably‟” be subject to section 7
or 8 of the NLRA for preemption to apply “is not without substance.” (Davis, at p. 394.)
The party claiming preemption “must carry the burden of showing at least an arguable
case before the jurisdiction of a state court will be ousted.” (Id. at p. 396.)
       Arguable preemption under Garmon is not a given in this matter. Evidence
presented on the motion for summary judgment showed that Dang was a supervisor at
Maruichi.2 Supervisors are explicitly excluded from the definition of “employee” under
the NLRA and therefore are not entitled to the protections afforded by section 7. (29
U.S.C. 152(3); Operating Engineers v. Jones (1983) 460 U.S. 669, 671, fn. 1.)
       Nevertheless, discharge of a supervisor may constitute an unfair labor practice
under section 8, subdivision (a)(1), and therefore be subject to the NLRA, “if it infringes
on the [section] 7 rights of the employer‟s nonsupervisory employees.” (Davis, supra,


2       On appeal, Maruichi asserts that Dang may not have been a supervisor and that his
status should be determined by the NLRB. This assertion is contrary to evidence
presented by Maruichi below, in which its general manager, in deposition testimony,
referred to Dang as a “supervisor.” In any event, Maruichi bore the burden of submitting
evidence sufficient to support a finding that Dang was an employee, not a supervisor.
(Davis, supra, 476 U.S. 380, 395.) Maruichi did not carry this burden.


                                               4
476 U.S. 380, 385, fn. 4.) The “post-1982 standard” for finding NLRA violations in
disciplinary actions against supervisors was explained in Parker-Robb Chevrolet, Inc.
(1982) 262 NLRB 402 (Parker-Robb), affd. Automobile Salesmen’s Union v. N.L.R.B.
(D.C. Cir. 1983) 711 F.2d 383 (Automobile Salesmen). (Davis, at p. 385, fn. 4.) Parker-
Robb held that discharge of a supervisor may violate section 8 “in certain circumstances,”
including when an employer discharges a supervisor “for giving testimony adverse to an
employer‟s interest either at an NLRB proceeding or during the processing of an
employee‟s grievance under the collective-bargaining agreement,” “for refusing to
commit unfair labor practices,” or “because the supervisor fails to prevent unionization.”
(262 NLRB at pp. 402-403.) Termination of a supervisor‟s employment in these
situations is unlawful because “it interferes with the right of employees to exercise their
rights under Section 7.” (Id. at p. 404.)
       Discharge of supervisors merely because of their participation in union or
concerted activity is not unlawful, however, because supervisors (unlike employees) are
not protected by section 7. (Parker-Robb, supra, 262 NLRB 402, 404.) An employer
may insist on the loyalty of its supervisors, who are “not free to engage in activity which,
if engaged in by a rank-and-file employee, would be protected.” (Automobile Salesmen,
supra, 711 F.2d 383, 386.) Thus, even when the termination of a supervisor is part of “„a
pattern of conduct aimed at coercing employees in the exercise of their section 7 rights‟”
(id. at p. 385), there will be no violation unless the discharge “directly interferes with the
section 7 rights of the statutorily protected employees.” (Id. at pp. 387-388.)
       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. None of the circumstances that Parker-Robb held may
constitute a violation of section 8 because they interfere with section 7 protections
(termination for testifying adversely to an employer‟s interest, refusing to commit an
unfair labor practice, or failing to prevent unionization) (262 NLRB 402, 402-403) is
present. Indeed, Maruichi‟s stated reason for terminating Dang‟s employment—that he
mistreated employees, spurring them to consider unionizing—was not arguably likely to

                                              5
impact its employees‟ ability to engage in activity protected by section 7. 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. (Parker-Robb, at p. 404.)3
       Thus, based on the evidence presented, there was no reasonable basis to find that
Dang‟s discharge was arguably prohibited by the NLRA, and the trial court erred by
finding preemption. (Davis, supra, 476 U.S. 380, 394 [“no dispute” that if the plaintiff
was a supervisor he was legally fired “and there is no pre-emption”]; Balog v. LRJV, Inc.
(1988) 204 Cal.App.3d 1295, 1302 [“The Parker-Robb board specifically differentiated
between the unlawful (and thus preempted) discharge of supervisors who refuse to
commit unfair labor practices and the lawful (and therefore not preempted) discharge of
supervisors for their participation in union or concerted activities.”].) As held by the
Davis court, in finding that the state court properly found no preemption, “a party
asserting pre-emption must put forth enough evidence to enable a court to conclude that
the activity is arguably subject to the [NLRA].” (Davis, at p. 398.) The evidence here
was insufficient to support such a conclusion.
       Prior California decisions applying Garmon preemption do not assist Maruichi.
Henry v. Intercontinental Radio, Inc. (1984) 155 Cal.App.3d 707, in which the discharge
of a supervisor was found to arguably fall within the jurisdiction of the NLRB, was
decided prior to Davis and relied on authority predating Parker-Robb and Automobile
Salesmen. Because Henry did not consider potential preemption under the “post-1982
standard” summarized in these decisions (Davis, supra, 476 U.S. 380, 384, fn. 4), it
provides no guidance here. In Bassett v. Attebery (1986) 180 Cal.App.3d 288, a


3      We make no determination whether, based on the evidence, Dang can actually
prove his claim for wrongful termination in violation of public policy under California
law.


                                              6
supervisor‟s claim was the “functional equivalent” of discharge based on testimony
before the NLRB. (Id. at p. 295.) There are no allegations in this matter that Dang was
fired for giving testimony or its equivalent. Similarly, in Kelecheva v. Multivision Cable
T.V. Corp., supra, 18 Cal.App.4th 521, 528-529, the plaintiff supervisor was discharged
because he refused to engage in union-busting activity. Such a termination would likely
fall within Parker-Robb‟s exception for supervisor discharge based on “refusing to
commit unfair labor practices” (262 NLRB 402, 402-403). Again, no similar allegations
or evidence are present in this case.
       In summary, the evidence presented on the motion for summary judgment does
not show that Dang‟s discharge was arguably subject to section 7 or 8 of the NLRA. A
finding of preemption was therefore not warranted and the motion should have been
denied.
                                        DISPOSITION
       The judgment is reversed. The order granting summary judgment is vacated and
the case is remanded for trial proceedings.
       Dang is awarded his costs on appeal.




                                           BOREN, P.J.
We concur:


       ASHMANN-GERST, J.


       CHAVEZ, J.




                                              7
Filed 9/22/16
                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            SECOND APPELLATE DISTRICT

                                      DIVISION TWO


KHANH DANG,                                          B269005

        Plaintiff and Appellant,                     (Los Angeles County
                                                     Super. Ct. No. BC552668)
        v.
                                                     ORDER CERTIFYING OPINION
MARUICHI AMERICAN                                    FOR PUBLICATION
CORPORATION,

        Defendant and Respondent.



THE COURT:
        The opinion in the above entitled matter filed on September 1, 2016, was not
certified for publication in the Official Reports.
        For good cause it now appears that the opinion should be published in the Official
Reports and it is so ordered.