Opinion
C095228
01-29-2024
JANE CHURCHON, Plaintiff and Appellant, v. SUTTER VALLEY HOSPITALS, Defendant and Respondent.
NOT TO BE PUBLISHED
Super. Ct. No. 34-2018-00230710-CU-WT-GDS
ROBIE, J.
Defendant Sutter Valley Hospitals (Sutter) terminated plaintiff Jane Churchon's employment for violation of Sutter's policy against disruptive behavior and workplace violence. While plaintiff was on unpaid administrative leave pending the investigation that led to her termination, she filed a charge against Sutter with the National Labor Relations Board (Board). Plaintiff asserted that Sutter placed her on unpaid administrative leave "because [she] engaged in protected concerted activities with other employees concerning [their] working conditions." The Board dismissed plaintiff's charge for lack of sufficient evidence. Plaintiff then filed a complaint against Sutter in the trial court after she was terminated, asserting Labor Code violations and retaliation claims.
The question in this case is whether plaintiff's claims against Sutter are preempted by the National Labor Relations Act (29 U.S.C. § 151 et seq.) (Act). The trial court found that her claims are preempted, and we agree. We thus affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The facts recited below were compiled from the statements of undisputed material facts included in the parties' summary judgment briefs. We also include facts taken from exhibits filed with Sutter's summary judgment motion. Plaintiff did not object to these exhibits. Those exhibits include plaintiff's charge against Sutter and supporting documents, as well as the Board's decision. The other exhibits are the disciplinary documents given to plaintiff by Sutter prompting the present lawsuit.
After Sutter moved its neonatal intensive care unit from one hospital to another, "a number of problems arose in the workplace, among them chronic understaffing, frequent missed breaks for nurses, and unsafe patient assignments and patient ratios." Following the move, plaintiff "immediately noticed and raised concerns she had about understaffing, missed breaks, patient ratios, patient assignments, and the [electronic medical records] rollout." In March 2016, plaintiff "became involved in organizing for unionization in the workplace." "From Summer 2016 through her termination, [plaintiff] persisted in reporting concerns about problems in the workplace." Plaintiff's "concerns about problems in the workplace included understaffing that violated California state patient ratio regulations; understaffing, assignments, and ratios that risked patient safety; understaffing and resulting missed breaks that negatively impacted the health, safety, and well-being of nurses; violations of California state regulations about breaks, missed break premium pay, and overtime pay; other patient safety concerns regarding split assignments, the [neonatal intensive care unit] monitoring system, and inadequate and non-functioning medical equipment; [and] other employee safety concerns regarding insufficient security measures and protections in the [neonatal intensive care unit]."
After Sutter hired a new chief executive officer, it held meetings to introduce him to the staff. Plaintiff attended one such meeting, during which she "made complaints about workplace and patient safety as well as direct accusations to the new [chief executive officer] that [Sutter], including [neonatal intensive care unit] [l]eadership, was intolerant of dissenting opinion and had a 'punitive culture.'" "Immediately following the . . . meeting and [plaintiff's] complaints, [Sutter] accused [plaintiff] of perpetrating workplace violence."
Sutter placed plaintiff on unpaid administrative leave pending an investigation and then terminated her employment on April 26, 2017. In the corrective action notice provided to plaintiff upon her termination, Sutter wrote that plaintiff violated its policy against disruptive behavior and workplace violence when she and two other nurses surrounded an assistant nurse manager, who was backed up against a wall, "in a work area in front of multiple coworkers." Sutter set forth that plaintiff "used her body to physically touch the [assistant nurse manager's] body in an aggressive manner," pointed her finger in the assistant nurse manager's face, spoke to the assistant nurse manager in an "abusive and aggressive" manner in a raised voice, and physically blocked the assistant nurse manager from being able to walk away. It further wrote that an observing employee stepped in between the assistant nurse manager and plaintiff because the assistant nurse manager was "visibly distressed" and plaintiff then followed that employee to the elevator while the assistant nurse manager repeatedly asked her to stop following the employee.
I
Plaintiff's Charge Filed With The Board
On April 14, 2017, after plaintiff was placed on unpaid administrative leave, she filed a charge with the Board. She alleged Sutter "placed [her] on unpaid administrative leave pending investigation because [she] engaged in protected concerted activities with other employees concerning [their] working conditions." In her affidavit accompanying the charge, plaintiff explained that the hospital moved into a new building that made it "impossible to maintain the same quality of care" and patient safety as before the move. She wrote, "The new set-up is dangerous for the babies," and "also unsafe for the babies at the new building because [they] usually have a [three-to-one] baby ratio, with three to four babies for each [registered nurse], but the law says that it's supposed to be a [two-to-one] baby ratio with a maximum of two babies for each [registered nurse]."
Plaintiff explained she and three of her night-shift coworkers discussed the working conditions and each of them discussed their issues with their direct supervisors. Plaintiff suggested that they also raise their issues with the director of the neonatal intensive care unit by collectively writing a letter to her about their concerns and then have a meeting with the director in person. The nurses met and plaintiff wrote the letter to the director discussing their concerns. Plaintiff and one of the nurses met with the director thereafter and discussed their concerns "about safety issues in [their] unit and about [their] patients' safety." After the meeting, plaintiff left a copy of the letter with the director.
Plaintiff next discussed her union-organizing activities, which we do not set forth in detail. She did note, however, that Sutter did not have a union. She further wrote about issues she had flagged with managers at various staff meetings, such as the unsanitary use of pots of water to warm bottles of milk, short staffing, and unsafe patient-to-staff ratios. Plaintiff also wrote of another nurse's inquiry about getting ergonomic desks.
Plaintiff told the director that she had previously "called a charge nurse to tell her that an assignment was unsafe and the charge nurse told [plaintiff] that she didn't have time to deal with it, and she hung up the phone on [plaintiff]." She further complained "that three or four baby assignments were unacceptable and the assistant nurse managers should try dealing with narcotics babies." Another nurse "spoke up and said that the assignments that she was being given were unsafe." The nurses complained "that there were no resources" and charge nurses were not doing anything about their complaints. Other nurses further complained that there were not enough medication dispensing machines, that they had to stand to chart, and the assignment of "babies in different pods . . . was unsafe because there was a wall between the babies in the different pods."
Plaintiff wrote about "a [t]own [h]all meeting," during which most of the management staff was present. The night before the meeting, plaintiff asked coworkers to provide a list of items that they wanted her to bring up during the meeting. They did so. Plaintiff asked the chief executive officer the various questions on the list. Plaintiff then asked about breaks because of staffing issues and why Sutter was not offering parttime positions; raised concerns about the calculation of pay for certain shifts; complained there was no food available for night-shift workers and that there was no help provided regarding the isolation of the pods in the unit; inquired about staffing concerns in the maternity ward, when the unit would get milk warmers, and the timeframe for night-shift nurses to be given day-shift assignments; and said there was inadequate signage, management picked people for leadership roles because they "had the same opinions as them," and she felt like there was a "punitive culture" rather than a "just culture." Another nurse asked about ergonomic desks, Sutter's perspective on the reason for being short-staffed, staff assignments, staffing issues, patient-to-nurse ratios, and patient care. A third nurse asked about a change in benefits. Other nurses also spoke up during the meeting, but no specifics were provided in plaintiff's charge.
Plaintiff wrote that, after she "clocked out," she walked along a hallway and encountered an assistant nurse manager speaking with others while they were discussing where to hang a flip chart. According to plaintiff, the assistant nurse manager got upset during the conversation when they discussed patient-to-nurse ratios and, after the assistant nurse manager said, "Ya, but," with her hand up-which she allegedly frequently did-plaintiff advised the assistant nurse manager that "it wasn't an effective communication strategy." The assistant nurse manager allegedly "burst into tears and ran down the hallway," while yelling," 'I'm only human!'" Plaintiff alleged the assistant nurse manager was the only one to raise her voice, no one touched the assistant nurse manager, and no one pointed a finger "at anybody else." When the assistant nurse manager was leaving, she allegedly told plaintiff, "Stay away from me, Jane!" after plaintiff apologized for "hurt[ing] [her] feelings." The next day, plaintiff was called into a meeting with human resources to discuss the incident; she detailed the discussion during that meeting. After the meeting, Sutter placed plaintiff on unpaid administrative leave to investigate an incident of workplace violence. Plaintiff noted other nurses were also placed on administrative leave due to the incident and thus "everyone is scared now to complain about patient safety."
The Board dismissed plaintiff's charge that Sutter "violated [s]ection 8(a)(1) of the Act by placing [her] on administrative leave in retaliation for [her] protected concerted activities because there [wa]s insufficient evidence to establish a violation of the Act." Plaintiff appealed the decision.
In its letter denying plaintiff's appeal, the Board wrote: "The [r]egional [o]ffice [i]nvestigation disclosed insufficient evidence to establish that the [e]mployer violated the [Act] by placing you on administrative leave in retaliation for your protected concerted activities. Rather, the [e]mployer conducted a good-faith investigation into the matter and there was nothing to suggest the investigation was improper or that the [e]mployer relied upon any inappropriate evidence in reaching its decision to place you on administrative leave."
II
Plaintiff's Complaint Against Sutter
Following her termination, plaintiff filed a verified complaint against Sutter alleging five causes of action for violation of Labor Code section 1102.5, violation of Labor Code section 6310, failure to provide adequate meal and rest periods, wrongful termination in violation of public policy, and patient safety whistleblower retaliation in violation of Health and Safety Code section 1278.5.
In her first verified amended complaint, plaintiff detailed her concerns about patient safety in the new neonatal intensive care unit, her concerns about workplace conditions, and her discussions with various managers regarding her concerns. She further alleged that she attended staff meetings during which she "raised concerns including but not limited to assigned patient ratios, patient placement and lack of breaks for staff nurses." She also discussed her attendance at union meetings and discussions "regarding her concerns over Sutter's patient safety issues, employee health and safety issues, general workplace issues, and Sutter management's lack of responsiveness."
Plaintiff laid out in detail what happened at the" 'town hall' style meeting," where the new chief executive officer heard concerns from staff. She explained that she "recited several common concerns she gathered from coworkers the night before," and specifically: "nurses could not safely take breaks entitled to them and avoid fatigue without leaving infants inadequately monitored; when they could safely take breaks, nurses did not have access to food during [12]-hour night shifts; assignment ratios above [one-to-two] endangered infant health and safety because of the subdivided pod layout of the [neonatal intensive care unit]; nurses could not safely and sanitarily warm up milk because Sutter did not provide them with milk warmers; Sutter management failed to follow through on promises to numerous nurses that they would be transitioned to day shift and/or fewer weekend shifts; Sutter management structured payroll so as to deprive weekend-shift nurses [of] overtime pay; Sutter management did not seriously consider the concerns and complaints of [neonatal intensive care unit] staff; [and] Sutter management created a retaliatory culture in which staff felt scared raising workplace complaints and concerns." Plaintiff also laid out her perception of the discussion that occurred after that meeting, which led to her being placed on unpaid administrative leave pending an investigation and ultimately led to her termination.
In her first cause of action for violation of Labor Code section 1102.5, plaintiff alleges she "made numerous protected complaints to persons with authority over her at [Sutter] including, but not limited to, the unsafe working environment at [Sutter] with regards to the lack of proper ratios of nurses to babies, retaliatory behavior by management, overdosing baby patients with medication, and other patient safety issues." She claims Sutter "violated Labor Code section 1102.5 when it unlawfully retaliated against [her] by taking adverse employment actions . . ., including but not limited to making unfavorable changes to her work schedule, denying him/her/them reasonable accommodation, and wrongfully terminating her employment."
In her second cause of action for violation of Labor Code section 6310, plaintiff alleges Sutter violated the statute "by retaliating against [her] for her protected complaints regarding the unsafe workplace, unsafe work practices, and her working conditions." We do not discuss the allegations asserted in the third cause of action for failure to provide adequate meal and rest periods because, as explained post, the cause of action is not at issue in this appeal.
In her fourth cause of action for wrongful termination in violation of public policy, plaintiff alleges that Sutter's violation of several statutes and regulations "were substantial motivating reasons for [p]laintiff's termination. During [p]laintiff's employment with [Sutter], [p]laintiff reported and/or made complaints to [Sutter] regarding hostile work environment harassment, and retaliation. Plaintiff performed her job duties well. [Sutter] subjected [her] to adverse employment actions, including but not limited to termination, because [she] complained about hostile work environment harassment, and retaliation."
And finally, in her fifth cause of action for violation of Health and Safety Code section 1278.5 regarding patient safety whistleblower retaliation, plaintiff asserts Sutter "harassed, and retaliated against [her] because she reported concerns about patient care, services, and hospital conditions." Plaintiff prays for compensatory damages, punitive damages, attorney fees and costs, "cost of suit incurred," prejudgment interest, and "such other and further relief as the court may deem proper."
Sutter moved for summary judgment or, in the alternative, summary adjudication. The trial court granted Sutter's motion for summary judgment. The trial court found that Sutter was entitled to judgment on the third cause of action for failure to provide adequate meal and rest periods because plaintiff did not oppose the motion as to that cause of action and agreed to dismiss it. The trial court further found that Sutter was entitled to judgment on the remaining causes of action because plaintiff's claims are preempted under the Act.
Plaintiff appeals.
Plaintiff does not challenge the trial court's grant of summary judgment as to her third cause of action for failure to provide adequate meal and rest periods.
Summary judgment should be granted "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).)" 'Because this case comes before us after the trial court granted a motion for summary judgment, we take the facts from the record that was before the trial court when it ruled on that motion. [Citation.]" 'We review the trial court's decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained.'" [Citation.] We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.'" (LaBarbera v. Security National Ins. Co. (2022) 86 Cal.App.5th 1329, 13381339.) We owe no deference to the trial court's reasoning; our task is to review the trial court's decision, not its rationale. (Murchison v. County of Tehama (2021) 69 Cal.App.5th 867, 882.)
Plaintiff argues the motion for summary judgment should have been denied because her claims are not preempted by the Act, Sutter's motion suffered from fatal procedural defects, the motion should have been denied on the merits, and the motion should have been denied as to her punitive damages allegations. Because we conclude plaintiff's claims are preempted and Sutter's motion did not suffer from fatal procedural defects, we do not consider the remainder of her arguments.
Initially, plaintiff argues Sutter's motion for summary judgment should have been denied because its motion failed to completely dispose of a cause of action in accordance with Code of Civil Procedure section 437c, subdivision (f)(1), because: (1) Sutter focused on her termination and failed to address other adverse employment actions; and (2) Sutter did not address numerous issues of material fact and improperly incorporated its separate statement of undisputed material facts. We find no merit in plaintiff's initial argument. Sutter moved for summary judgment as to all of plaintiff's causes of action on the ground of preemption, which was decisive despite the adverse action at issue or disputed facts concerning the merits of plaintiff's suit.
Turning to the issue of preemption, "Congress intended the [Act] to serve as a comprehensive law governing labor relations; accordingly, 'the [Board] has exclusive jurisdiction over disputes involving unfair labor practices, and "state jurisdiction must yield" when state action would regulate conduct governed by the [Act].'" (Doe v. Google, Inc. (2020) 54 Cal.App.5th 948, 957.)
"Section 7 of the [Act] guarantees employees 'the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection ....' (29 U.S.C. § 157.)
Section 8 of the [Act] makes it an unfair labor practice for an employer 'to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in' section 7 [of the Act]. (29 U.S.C. § 158(a)(1).)" (Luke v. Collotype Labels USA, Inc. (2008) 159 Cal.App.4th 1463, 1469-1470.) "Because it is for the [Board] to determine, in the first instance, whether conduct is in fact governed by the [Act], the Act's preemptive effect may extend beyond conduct that the [Act] directly governs to 'activities which "arguably" constitute unfair labor practices under the Act.'" (Doe v. Google, Inc., supra, 54 Cal.App.5th at p. 957.) State law claims are thus preempted if they concern conduct that is "arguably" protected by section 7 or "arguably" prohibited by section 8 of the Act. (San Diego Unions v. Garmon (1959) 359 U.S. 236, 245 (Garmon).)
"The scope of preemption based on conduct that is arguably protected by the [Act] does not[, however,] extend to state law claims where the activity regulated (1) is a 'merely peripheral concern' of the [Act] [citation] or (2) 'touches on interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, it could not be inferred that Congress intended to deprive the [s]tate of the power to act.'" (Haney v. Aramark Uniform Services, Inc. (2004) 121 Cal.App.4th 623, 633.) "[T]he local interest exception is founded upon a recognition that certain conduct can be the basis for state court action even though the same conduct might constitute an unfair labor practice under the [Act]." (Hillhaven Oakland Nursing Etc. Center v. Health Care Workers Union (1996) 41 Cal.App.4th 846, 859.) "Whether the [Act] preempts a cause of action is an issue of law we review de novo." (Wal-Mart Stores, Inc. v. United Food &Commercial Workers Internat. Union (2016) 4 Cal.App.5th 194, 201.)
Before delving into the issue, we note that we do not address plaintiff's claim that Sutter failed to demonstrate the alleged conduct did not constitute concerted activity, as required for it to fall within the jurisdiction of the Board. Plaintiff did not raise that argument in the trial court, nor did she raise it in her opening brief. Instead plaintiff raised the argument in her reply brief and she thus did not give Sutter an opportunity to respond to the argument. We do not consider arguments raised for the first time in a reply brief. (American Indian Model Schools v. Oakland Unified School Dist. (2014) 227 Cal.App.4th 258, 275-276.)
Plaintiff argues the conduct alleged in her complaint is not arguably protected conduct under the Act because the Board "itself has declared 'authoritatively' that the [Act] inarguably does not protect whistleblowing about patient care," citing Doe v. Google, Inc., supra, 54 Cal.App.5th at page 948. She asserts her whistleblower allegations pertain to "patient care concerns, including pod layout and split assignments, which prevented nurses from having a direct line of sight to their patients, functionality of medical equipment, patient ratios, and [Sutter's] electronic medical record system, which was rolled out at the same time as the move to the new [neonatal intensive care unit] layout and [which] distracted staff from patient care." She further argues the conduct alleged in her complaint does not fall within the provisions of the Act because she raised her whistleblower complaints and concerns with management and did not merely discuss them with her peers. We conclude the conduct was arguably protected under the Act.
" '[T]he policy of the Act [is] to protect the right of workers to act together to better their working conditions.'" (Eastex, Inc. v. NLRB (1978) 437 U.S. 556, 567.) "Employee protests to improve working conditions have long been held protected activity" (PHT, Inc. v. NLRB (D.C. Cir. 1990) 920 F.2d 71, 73) and the Board "has jurisdiction to investigate unfair labor practices, which include discharges based on protected activity such as voicing safety complaints" (Zurn Industries, Inc. v. NLRB (9th Cir. 1982) 680 F.2d 683, 694). It is true that "[t]he Board has held repeatedly that employee concerns for the 'quality of care' and the 'welfare' of their patients are not interests 'encompassed by the "mutual aid or protection" clause'" of section 7 of the Act. (Orchard Park Health Care Ctr. (2004) 341 N.L.R.B. 642, 643; see Good Samaritan Hosp. (1982) 265 N.L.R.B. 618, 626 [employees' criticisms of the quality of care and the welfare of the children were not directed to improve their lot as employees and thus fell outside the mutual aid and protection provisions of section 7 of the Act].) Nevertheless, plaintiff's protests regarding inadequate nurse-to-patient ratios, understaffing, et cetera, in her unit arguably constitute protected activity because they related not only to patient safety, but also to the working conditions of the nurses. Indeed, in the health care field issues of employee working conditions and patient welfare "often appear to be inextricably intertwined." (Misericordia Hospital Medical Center v. NLRB (2d Cir. 1980) 623 F.2d 808, 813; see Washington State Nurses Ass'n v. NLRB (9th Cir. 2008) 526 F.3d 577, 582 ["the courts and the Board have long recognized that nurses' working conditions are directly related to patient care and safety"].)
Where issues of employee working conditions, employee health and safety, and patient care or welfare are inextricably intertwined, as here, the alleged conduct constitutes arguably protected conduct under the Act, regardless of whether an employee has reported concerns to management or merely voiced them to colleagues. (Zurn Industries, Inc. v. NLRB, supra, 680 F.2d at p. 694 [the Board's jurisdiction to investigate unfair labor practices includes discharges based on protected activity such as voicing safety complaints]; Misericordia Hospital Medical Center v. NLRB, supra, 623 F.2d at p. 813.) While the Board "has authoritatively rejected the argument that whistleblowing about employer conduct unrelated to working conditions is protected activity [and] the [Act] does not protect an employee reporting concerns about patient care in a nursing home," here plaintiff's whistleblowing was related to working conditions. (Doe v. Google, Inc., supra, 54 Cal.App.5th at p. 960, italics added.)
"In the case before us, . . . the preemption question turns not on the characterization of the action but the nature of the activity called into question: is it arguably protected by the [Act]? This is not a matter that can be manipulated by the selection of a state or federal cause of action." (Rodriguez v. Yellow Cab Coop. (1988) 206 Cal.App.3d 668, 680.) The "proper focus of concern" is on "the conduct being regulated, not a formal description of governing legal standards." (Motor Coach Employees v. Lockridge (1971) 403 U.S. 274, 292.) Here, the alleged conduct concerning patient safety is based on working conditions, and thus is arguably protected under section 7 of the Act.
Because we have found the conduct to be arguably protected under section 7 of the Act, we do not address whether the conduct also constitutes conduct arguably prohibited under section 8 of the Act. (See Machinists Auto. Trades Dist. Lodge v. Peterbilt Motors Co. (1990) 220 Cal.App.3d 1402, 1407 [conduct should be either arguably protected or arguably prohibited under the Act].) We next consider whether the peripheral concern or local interest exception applies. (Garmon, supra, 359 U.S. at pp. 243-244; see also Doe v. Google, Inc., supra, 54 Cal.App.5th at p. 957 ["Although framed as separate exceptions, these two factors are often analyzed together].) We conclude they do not.
"To determine whether regulated conduct touches interests deeply rooted in local feeling and responsibility such that state law is not preempted, a court must first consider whether there is 'a significant state interest in protecting the [employee] from the challenged conduct.' [Citation.] Second, it must consider the level of 'risk of interference with the regulatory jurisdiction of the . . . Board.' [Citation.] Once those two considerations have been measured, the court must balance them against each other before ultimately concluding whether the state law is preempted." (Pia v. URS Energy &Construction, Inc. (S.D. Iowa 2017) 227 F.Supp.3d 999, 1003; see Kaufman v. Allied Pilots Ass'n (5th Cir. 2001) 274 F.3d 197, 201 ["The [United States Supreme] Court has explicitly rejected a formalistic implementation of Garmon, and invited a balancing of state interests and federal regulatory interests in analyzing the preemption question"]; Allis-Chalmers Corp. v. Lueck (1985) 471 U.S. 202, 213-214, fn. 9 ["So-called Garmon pre-emption involves protecting the primary jurisdiction of the [Board], and requires a balancing of state and federal interests"]; Operating Engineers v. Jones (1983) 460 U.S. 669, 676 ["The question of whether [state] regulation should be allowed because of the deeply rooted nature of the local interest involves a sensitive balancing of any harm to the regulatory scheme established by Congress, either in terms of negating the Board's exclusive jurisdiction or in terms of conflicting substantive rules, and the importance of the asserted cause of action to the State as a protection to its citizens"].)
There is no question that California has a significant interest in protecting hospital employees from being discharged in retaliation for complaining about nurse-to-patient ratios that allegedly violate state regulations and threaten patient safety, or employee occupational health and safety issues. There is further no question that patient safety and occupational health and safety concerns are only peripheral concerns of the Act.
"Next, this [c]ourt must determine the level of the 'risk of interference with the regulatory jurisdiction' of the . . . Board . . . if the state-law claim were to proceed. [Citation.] Because the level of risk is highly case-dependent, this determination 'requires a more fact-sensitive approach.'" (Pia v. URS Energy &Construction, Inc., supra, 227 F.Supp.3d at p. 1004.) In that regard, the United States Supreme Court has said, "The critical inquiry . . . is not whether the [s]tate is enforcing a law relating specifically to labor relations or one of general application but whether the controversy presented to the state court is identical to . . . or different from . . . that which could have been, but was not, presented to the . . . Board. For it is only in the former situation that a state court's exercise of jurisdiction necessarily involves a risk of interference with the unfair labor practice jurisdiction of the Board which the arguably prohibited branch of the Garmon [preemption] doctrine was designed to avoid." (Sears v. San Diego County Dist. Council of Carpenters (1978) 436 U.S. 180, 197.)
Here, plaintiff presented her charge to the Board and based that charge on the same conduct and controversy alleged in the complaint-i.e., that Sutter retaliated against her because she raised concerns about the nurses' working conditions, which she believed impacted patient care. As explained in her charge to the Board and her first amended verified complaint, plaintiff's unpaid administrative leave and termination arose out of the same alleged conduct. The Board found there was no evidence that Sutter retaliated against plaintiff or that Sutter's investigation was improper. The Board further found that Sutter had conducted a good-faith investigation into the incident that led to Sutter placing plaintiff on administrative leave (and ultimately terminating her employment). We thus disagree with plaintiff's assertion that the Board's decision did not constitute a finding of fact because it merely "found there was insufficient evidence to support the assertion that [her] administrative leave was retaliation for her concerted activities, and the employer conducted a good faith investigation." Plaintiff's attempt to recast the question of retaliation into state law claims based on the same facts considered and upon which the Board made a determination risks interference with the unfair labor practice jurisdiction of the Board.
Plaintiff's reliance on Paige and Inter-Modal is misplaced. It is true Paige held the wrongful discharge claims in that case, which were based on violations of California's Occupational Health and Safety Act provisions, were pled merely as state law claims with the plaintiffs foregoing claims it could raise to the Board. Thus, the claims were not preempted, and jurisdiction did not exclusively reside with the Board. (Paige v. Henry J. Kaiser Co. (9th Cir. 1987) 826 F.2d 857, 862-865.) But, the plaintiffs in Paige did not first file a charge with the Board (id. at pp. 859-860); neither did the plaintiffs in Inter-Modal Rail Employees Assn. v. Burlington Northern &Santa Fe Ry. Co. (1999) 73 Cal.App.4th 918, 921-924). In contrast, the plaintiff in Platt did file a charge with the Board before filing his complaint. (Platt v. Jack Cooper Transport Co., supra, 959 F.2d at p. 95.)
The Platt court determined it was "highly relevant that Platt unsuccessfully sought relief through the grievance process, and directly from the [Board], before commencing [his] lawsuit." (Platt v. Jack Cooper Transport Co., supra, 959 F.2d at p. 95.) It explained," 'The risk of interference with the Board's jurisdiction is . . . obvious and substantial' when an unsuccessful charge to the Board is recast as a state law claim." (Ibid., quoting Operating Engineers v. Jones, supra, 460 U.S. at p. 683.) The Eighth Circuit Court of Appeals agreed with the Eleventh Circuit Court of Appeals that the Garmon preemption" 'rationale has the greatest validity when a party has sought redress for his claims from the [Board] and in the face of an adverse decision the claims are restructured as state law claims and pursued in state court.'" (Platt, at p. 95; quoting Parker v. Connors Steel Co. (11th Cir. 1988) 855 F.2d 1510, 1517.) The Platt court thus disagreed with Paige "to the extent Paige holds that plaintiffs may avoid Garmon preemption simply by choosing 'to plead their action as a state claim.'" (Platt, at p. 95, fn. 7, underscoring omitted, italics added.) At least one California appellate court has agreed in dicta that "Paige erroneously suggests that artful pleading will save a cause of action from Garmon preemption." (Rodriguez v. Yellow Cab Coop., supra, 206 Cal.App.3d at p. 680; see also Mayes v. Kaiser Foundation Hospitals (E.D. Cal. 2013) 917 F.Supp.2d 1074, 1084-1085 [Paige has questionable "precedential effect" because it concerned wrongful discharge claims under the Labor Management Relations Act and was more concerned about "removal jurisdiction than Garmon preemption"].)
Plaintiff asserts her "case is strikingly similar" to Google, "where a former employee sued his employer for various violations of the Labor Code's Private Attorney [sic] General Act . . ., and filed claims for unfair labor practices with the [Board]." She argues, "[L]ike in Google there is no risk of any contrary finding of fact." We disagree.
In Google, the plaintiffs sued their employers under the Labor Code Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.), "alleging the employers' confidentiality policies restricted their employees' speech in violation of California law" (Doe v. Google, Inc., supra, 54 Cal.App.5th at pp. 951-952). One of the plaintiffs also filed an unfair labor practice charge with the Board, alleging "Google's confidentiality rules violated section 8 of the [Act] by prohibiting employees from exercising their rights under section 7 of the Act, which entitles employees to engage in 'concerted activities for the purpose of collective bargaining and other mutual aid or protection.'" (Google, at pp. 955-956.) "On the same day that [the] plaintiffs filed their third amended complaint . . ., the regional director of the [Board] issued a complaint against Google based on [the] unfair labor practice charge. However, the regional director's complaint did not include certain allegations from [one of the plaintiffs'] charge[s], including the allegation relating to [that plaintiff's] termination, because the regional director determined [that plaintiff] had been a supervisor and therefore was not protected by the [Act]. [That plaintiff] appealed that decision, but the [Board's] general counsel denied the appeal." (Id. at p. 956.) The Board's regional director and Google ultimately reached an informal settlement on the Board's complaint, wherein Google did not admit liability but agreed "to post for 60 days a notice informing its employees of their rights under 'FEDERAL LAW.'" (Id. at pp. 961-962.)
The Court of Appeal reversed the trial court's order sustaining the employers' demurrers without leave to amend on the ground of preemption under the Act. (Doe v. Google, Inc., supra, 54 Cal.App.5th at p. 952.) The Court of Appeal concluded that, although "many of [the] plaintiffs' claims relate[d] to conduct that [wa]s arguably within the scope of the [Act]," "the claims f[e]ll within the local interest exception to Garmon preemption and [could] therefore go forward." (Ibid.) The Court of Appeal reasoned that the eventual state court outcome would not conflict with the settlement between the Board and Google because the settlement expressly implicated only federal law and expressly left open the possibility of court proceedings adjudicating matters involving the same conduct addressed in the settlement agreement. (Id. at p. 962.) Further, the court reasoned that Google would not face duplicative or punitive punishment because the settlement agreement punished Google for its prohibition on employees communicating with each other and the state court claims sought to punish Google for its prohibition on employees communicating with everyone else. (Id. at pp. 960-961, 963-964.) In other words, because the state law claims did not depend on a violation of the Act, they did not threaten the jurisdiction of the Board. (Id. at pp. 963-964.)
Unlike the facts of Google, the Board here made findings of fault, in that there was none, and did not preserve the possibility of other legal proceedings. Further, plaintiff's claims implicate only her workplace, in that Sutter's adverse actions were motivated by her complaints of poor workplace conditions. Whereas Google's conduct touched upon its employees' conduct outside the workplace and unrelated to organizing, Sutter's conduct implicated plaintiff's work relations and ability to complain about conditions of employment. This conduct is at the center of the Act. We thus disagree with plaintiff's assertion that Google "is strikingly similar" to her case.
Having found the alleged conduct of which plaintiff complains is arguably protected under the Act and neither the peripheral concern nor local interest exceptions apply, we conclude plaintiff's claims are preempted.
DISPOSITION
The judgment is affirmed. Plaintiff shall pay costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1)-(2).)
We concur: EARL, P.J., HULL, J.