The U.S. Court of Appeals for the Ninth Circuit, on March 18, 2022, applying de novo review, affirmed the district court’s dismissal of plaintiff Cesar Moreno’s wrongful termination claims against his former employer, UtiliQuest, LLC, as preempted by the National Labor Relations Act (NLRA). Additionally, Moreno’s wage-and-hour claims were dismissed as preempted because of a class action settlement reached in California Superior Court, that Moreno did not opt out of, during the pendency of his appeal. The court held the state law claims raised by Moreno, including intentional misrepresentation, fraud and deceit, whistleblowing retaliation, and wrongful termination in violation of public policy, potentially implicated the NLRA sections 7 and 8, and were subject to Garmon preemption. San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236 (1959).

Background

Moreno, who had the role of lead field technician at the time of his termination, alleged that UtiliQuest promised him that if he could convince all of his fellow coworkers to “sign away” their union rights, they would each receive a 10% raise. However, once Moreno obtained the signatures from his coworkers releasing their union rights, UtiliQuest provided only Moreno with a 10% raise, and did not give a raise to Moreno’s fellow employees. Moreno alleged he was terminated after confronting his supervisors about UtiliQuest’s failure to follow through on its promise. Moreno asserted multiple state law claims in connection with his termination, along with wage-and-hour-related claims against UtiliQuest.

NLRA Garmon Preemption

While the NLRA does not contain express preemption provisions, the U.S. Supreme Court has held that “two categories of state action are implicitly preempted: (1) laws that regulate conduct that is either protected or prohibited by the NLRA (Garmon preemption), and (2) laws that regulate in an area Congress intended to leave unregulated or ‘controlled by the free play of economic forces’ (Machinists preemption).”

On appeal, Moreno raised three arguments, each rejected by the court, as to why his state law claims were not subject to Garmon preemption:

1. First, Moreno argued that even if his termination-based claims implicated the NLRA, preemption was inappropriate because of the compelling local interest underlying his claims. The court did not apply the local interest exception to Garmon, instead finding that the National Labor Relations Board’s (NLRB) ability to adjudicate the controversy outweighed the state’s interest in protecting its citizens in this instance. In determining whether adjudication of a state claim risks interference with the NLRB’s jurisdiction, the court looks to whether “the controversy presented to the state court is identical with that which could be presented to the Board.” The court noted the key focus was not whether the claims were identical to what would be brought before the NLRB, but instead whether the “controversy presented” was identical to that which could be presented to the NLRB. A finding of Garmon preemption does not require “that a plaintiff have a certain remedy before the Board, or even that the Board will hear the claim in the first place.”
2. Second, Moreno argued that his claims lacked the element of “concerted activity” needed for an NLRA violation because his grievances with UtiliQuest were personal in nature. The court rejected this argument and instead noted that the NLRB would still be entitled to find that “individual actions were concerted to the extent they involved a ‘logical outgrowth’ of prior concerted activity.” The court reasoned that when Moreno received a raise and other employees did not, the NLRB could consider Moreno’s advocacy for his fellow coworkers to be “concerted activity.”
3. Third, Moreno argued that as a lead field technician, he was a supervisor responsible for “assigning all work to the field technicians and managing all of the work orders.” Although the court found that the district court erred in its reasoning for setting aside this argument, it affirmed the decision based on other grounds supported by the record. Namely, the court pointed to notices of election from the NLRB, which are public records subject to judicial notice. The notices revealed that in two prior California union elections involving UtiliQuest’s workforce, the NLRB determined that lead technicians were within the collective bargaining unit.

Full Faith and Credit

While Moreno’s case was proceeding in federal court, other employees of UtiliQuest were pursuing wage-and-hour claims in California state court on behalf of a class of employees that included Moreno. The state law class action was settled during the time Moreno’s federal case was appeal before the Ninth Circuit. On November 29, 2021, the California Superior Court entered an order approving the settlement. Moreno admitted that he received notice of the settlement, but he did not exercise his right to opt out of that case or protest the settlement. Therefore, when the appeal period expired, that settlement was binding on him as a member of that class.

Applying the principles of claim preclusion, the Ninth Circuit affirmed the district court’s dismissal of Moreno’s wage-and-hour claims.

In California, claim preclusion applies when the following three elements are present:

1. The decision in the prior proceeding is final and on the merits;
2. The present proceeding is on the same cause of action as the prior proceeding; and
3. The parties in the present proceeding, or parties in privity with them, were parties to the prior proceeding.

As part of the settlement agreement, the parties in the wage-and-hour class action agreed to waive any appeals unless the California Superior Court entered an order that materially altered the settlement’s terms. The Superior Court subsequently entered a final judgment “in accordance with terms of the Settlement.” Moreno did not opt out of the settlement and the court rejected his argument that he implicitly opted out of the state settlement by maintaining this federal litigation.

The court ruled that the settlement judgment in the California Superior Court was entitled to full faith and credit. Therefore, Moreno was bound by the state court settlement and unable to pursue a separate wage-and-hour action in federal court.

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