Carole Lopez v. Continental Can Company Incorporated Shell Oil Company T. Salter Incorporated

Carole Lopez sued her former employer, Continental Can, Inc., for fraudulently concealing the cause of her illness. The district court granted Continental Can’s motion for summary judgment on the ground that Lopez’s claim was preempted by section 301 of the Labor Management Relations Act. Lopez appeals.

We have jurisdiction pursuant to 28 U.S.C. § 1291 . We review de novo the district court’s grant of summary judgment. T. W Elec. Serv. Inc. v. Pacific Elec. Contractors Ass’n., 809 F.2d 626, 629 (9th Cir.1987). We reverse.

Carole Lopez worked for Continental Can, Inc., cleaning floors and machinery at its Van Nuys, California plant. 1 Lopez made daily use of cleaning solvents containing Methyl Ethyl Ketone and other toxic chemicals. After long-term exposure to the solvents, Lopez became ill. Her illness covered the period from 1984 to 1987, and was marked by a progressive deterioration of her physical condition. By 1987, Lopez, was physically unable to continue working. Lopez’s claim against Continental Can does not stem from her initial job related injury which was covered by California Workers’ Compensation law. Cal.Lab.Code § 3600(a). Rather, Lopez’s claim is that her injuries…

dissenting:

I would affirm the summary judgment entered by Judge Kenyon because he correctly found that Lopez’s claim for fraudulent concealment would necessarily entail reference to, and interpretation of, the health and safety provisions contained in Article 17 of the Master Agreement.

Article 17 begins with an acknowledgment by Continental Can and the Union that “high standards of safety and health are necessary to prevent industrial injury and illness,” and reflects their agreement to cooperate to that end. Section 17.1 requires Continental Can to “continue to make reasonable provisions ... for the safety and health of its employees at the plant during the hours of their employment.” The Master Agreement further establishes a Joint Safety and Health Committee to assist the company in carrying *150 out its accident prevention and health program, and Continental Can is required to furnish safety and accident reports to the Committee. See §§ 17.2, 17.6. Section 17.9 imposes on the company the obligation to assure that “[c]hemicals, solvents and compounds which are generally known to pose a hazard to safety or health will be properly labeled where stored.” Finally, § 17.7 allows…

961 F.2d 147 140 L.R.R.M. (BNA) 2246 , 121 Lab.Cas. P 10,096 , 7 IER Cases 734 Carole LOPEZ, Plaintiff-Appellant, v. CONTINENTAL CAN COMPANY INCORPORATED; Shell Oil Company; T. Salter Incorporated, Defendants-Appellees. No. 90-56346. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 4, 1991. Decided April 7, 1992. Baret C. Fink, Perelman & Fink, Los Angeles, Cal., for plaintiff-appellant. R. Gus Lehouck, Gibson, Dunn & Crutcher, Los Angeles, Cal., for defendants-appellees. Appeal from the United States District Court for the Central District of California. Before: PREGERSON, CANBY and RYMER, Circuit Judges. PREGERSON, Circuit Judge: 1 Carole Lopez sued her former employer, Continental Can, Inc., for fraudulently concealing the cause of her illness. The district court granted Continental Can's motion for summary judgment on the ground that Lopez's claim was preempted by section 301 of the Labor Management Relations Act. Lopez appeals. 2 We have jurisdiction pursuant to 28 U.S.C. § 1291 . We review de novo the district court's grant of summary judgment. T.W. Elec. Serv. Inc. v. Pacific Elec. Contractors Ass'n., 809 F.2d 626 , 629 (9th Cir.1987).…