NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 10 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SEAN LEONARD; MEL MENDIETA, No. 22-15970

Plaintiffs-Appellants, D.C. No. 2:19-cv-00042-MCE-KJN v.

FEDEX FREIGHT, INC., MEMORANDUM*

Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of California Morrison C. England, Jr., District Judge, Presiding

Submitted March 8, 2023** San Francisco, California

Before: FRIEDLAND and R. NELSON, Circuit Judges, and CARDONE,*** District Judge.

Plaintiffs Sean Leonard and Mel Mendieta allege that FedEx Freight

violated Section 923 of the California Labor Code, and California’s Unfair

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Kathleen Cardone, United States District Judge for the Western District of Texas, sitting by designation. Competition Law, when it retaliated against them and the other drivers in their

collective bargaining unit for designating Teamsters Local 439 to negotiate the

terms and conditions of their employment. Plaintiffs appeal from the district

court’s order granting judgment on the pleadings on these claims for lack of

subject matter jurisdiction. We affirm.

The district court did not err in holding that Plaintiffs’ claims against FedEx

Freight are preempted by the National Labor Relations Act (“NLRA”) under San

Diego Building Trades Council, Millmen’s Union, Local 2020 v. Garmon, 359

U.S. 236 (1959), and its progeny. The NLRA arguably prohibited FedEx Freight’s

allegedly unlawful conduct because Plaintiffs’ allegations of retaliation for

unionizing, if proven true, would describe a “textbook NLRA violation.” Moreno

v. UtiliQuest, LLC, 29 F.4th 567, 574 (9th Cir. 2022); see Arc Bridges, Inc. v.

N.L.R.B., 861 F.3d 193, 196–97 (D.C. Cir. 2017); UPS Supply Chain Sols., Inc.,

364 N.L.R.B. 8, 2016 WL 3014415, at *3 (N.L.R.B. 2016) (citing N.L.R.B. v. Katz,

369 U.S. 736, 743 (1962)).

The fact that the National Labor Relations Board (“NLRB”) dismissed an

unfair labor charge based on the same conduct does not preclude Garmon

preemption: That dismissal was for lack of evidence, not because the type of

conduct alleged was not covered by the NLRA. See Hanna Mining Co. v. Dist. 2,

Marine Eng’rs Beneficial Ass’n, 382 U.S. 181, 190–92 (1965). In arguing that

2 Plaintiffs’ claims are preempted by Garmon, FedEx Freight “advance[d] an

interpretation of the [NLRA] that is not plainly contrary to its language and that

has not been authoritatively rejected by the courts or the Board,” and it “put forth

enough evidence,” including a “legal showing,” “to enable the court to find that the

Board reasonably could uphold a claim based on such an interpretation.” Int’l

Longshoremen’s Ass’n v. Davis, 476 U.S. 380, 395, 398 (1986) (quotation marks

omitted); see also Idaho Bldg. and Constr. Trades Council v. Inland Pac. Chapter

of Associated Builders & Contractors, Inc., 801 F.3d 950, 965 (9th Cir. 2015)

(concluding that the party claiming preemption met its burden under Davis by

citing relevant precedent).

The local interest exception to Garmon preemption is inapplicable. That

exception does not “extend to local interests in labor policy,” Idaho Bldg., 801

F.3d at 966 (emphasis in original), and although Section 923 of the California

Labor Code protects workers’ individual rights as well as their collective rights,

see Montalvo v. Zamora, 86 Cal. Rptr. 401, 404 (Cal. Ct. App. 1970), applying it

to Plaintiffs’ concerted union activity would amount to an exercise of local labor

policy. The availability of punitive damages in a state law action does not alone

create a local interest sufficient to avoid Garmon preemption. See Garmon, 359

U.S. at 247; Local 926, Int’l Union of Operating Eng’rs v. Jones, 460 U.S. 669,

684 (1983).

3 Moreover, the controversy presented in the state law claims is functionally

identical to that which was presented to the NLRB: A showing of causation in

Plaintiffs’ state law claims would necessarily demonstrate the anti-union animus

required to prove unlawful discrimination under Section 8 of the NLRA. See

Santillan v. USA Waste of Cal., Inc., 853 F.3d 1035, 1047–48 (9th Cir. 2017); Arc

Bridges, 861 F.3d at 195–96 (citing Wright Line & Lamoureux, 251 N.L.R.B. 1083

(N.L.R.B. 1980)). Adjudicating this state law action would therefore pose a

significant “risk of interference with the unfair labor practice jurisdiction” of the

agency. Sears, Roebuck & Co. v. San Diego Cnty. Dist. Council of Carpenters,

436 U.S. 180, 197 (1978).

AFFIRMED.

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