Ruscigno

Introduction

Plaintiff Jim Ruscigno appeals from the judgment entered in favor of defendant American National Can Company, Inc., after defendant’s demurrer was sustained without leave to amend. 1 Plaintiff’s suit arose out of the termination of his employment by defendant. Plaintiff alleged he was terminated because he testified unfavorably to defendant during an employee’s grievance proceeding held pursuant to a collective bargaining agreement. The trial court sustained defendant’s demurrer on the ground that plaintiff’s complaint is preempted by the National Labor Relations Act ( 29 U.S.C. § 151 et seq.; hereafter NLRA.) and exclusive primary jurisdiction over the matter is vested in the National Labor Relations Board. We affirm.

Factual and Procedural Background

The facts alleged in plaintiff’s complaint are assumed to be true for the purpose of demurrer. A demurrer admits all facts properly pleaded, but not contentions, deductions, or conclusions of fact or law. (Freis v. Soboroff (2000) 81 Cal.App.4th 1102, 1104 [ 97 Cal.Rptr.2d 429 ].) Plaintiff alleged: Plaintiff began working for defendant in April 1975, pursuant to an employment contract that was part oral,…

I dissent because I believe that appellant can state a cause of action that is not preempted by federal law. I agree that his tort claims are preempted by the National Labor Relations Act ( 29 U.S.C. § 151 et seq.) under the Garmon theory. (San Diego Unions v. Garmon (1959) 359 U.S. 236 [ 79 S.Ct. 773 , 3 L.Ed.2d 775 ].) But that does not end the matter.

Plaintiff has pleaded that his employment arrangement with defendant gave him a right of continued employment, terminable only for cause, and he claims that he was terminated in violation of that arrangement. This sets up a simple suit for breach of contract. The majority takes the position that defendant will claim that plaintiff’s termination was the result of a reduction in work force, and that plaintiff will counter with an assertion that this reason is pretextual, set up to mask the real reason—that he was fired because he testified against the company at an arbitration hearing. Since that hearing was conducted pursuant to a collective bargaining agreement, the majority reasons, the exclusive jurisdiction of the National Labor Relations Board would be invoked.

I suspect that defendant’s principal defense will be that…

CHARLES S. VOGEL, P.J.

Plaintiff Jim Ruscigno appeals from the judgment entered in favor of defendant American National Can Company, Inc., after defendant's demurrer was sustained without leave to amend. [1] Plaintiffs suit arose out of the termination of his employment by defendant. Plaintiff alleged he was terminated because he testified unfavorably to defendant during an employee's grievance proceeding held pursuant to a collective bargaining agreement. The trial court sustained defendant's demurrer on the ground that plaintiffs complaint is preempted by the National Labor Relations Act ( 29 U.S.C. § 151 et seq.; hereafter NLRA) and exclusive primary jurisdiction over the matter is vested in the National Labor Relations Board. We affirm.

The facts alleged in plaintiffs complaint are assumed to be true for the purpose of demurrer. A demurrer admits all facts properly pleaded, but not contentions, deductions, or conclusions of fact or law. ( Freis v. Soboroff (2000) 81 Cal. App.4th 1102, 1104 , 97 Cal.Rptr.2d 429 .)

Plaintiff alleged: Plaintiff began working for defendant in April 1975, pursuant to an employment contract that was part oral, written, implied in fact, and…