USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1295
VINCENT R. TAMBURELLO,
Plaintiff - Appellant,
v.
COMM-TRACT CORPORATION, JOHN F. POLMONARI,
EDWARD MENARD, AND STEVEN DICKIE,
Defendants - Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Lynch, Circuit Judge, _____________
and Casellas,* District Judge. ______________
_____________________
Matthew Cobb, with whom Law Office of Matthew Cobb, was on ____________ __________________________
brief for appellant.
Timothy P. Van Dyck, with whom Joshua L. Ditelberg and _____________________ ____________________
Edwards & Angell, were on brief for appellees. ________________
____________________
October 2, 1995
____________________
____________________
* Of the District of Puerto Rico, sitting by designation.
TORRUELLA, Chief Judge. Vincent Tamburello TORRUELLA, Chief Judge. _____________
(Tamburello) appeals the dismissal of his complaint against his
employer, Comm-Tract Corporation (Comm-Tract), and several
individuals who were his supervisors at Comm-Tract. Tamburello
alleges that his supervisors engaged in a course of harassment in
retaliation for his union activities as a union steward, and
seeks damages under, inter alia, the Racketeering Influenced and _____ ____
Corrupt Organizations Act (RICO), 18 U.S.C. 1962(c) (1988), and
the Massachusetts Civil Rights Act (MCRA), Mass. Gen. L. ch. 12,
11I (1988). The district court found that Tamburello's claims
are preempted by the National Labor Relations Act, as amended, 29
U.S.C. 151-161 (1988) (NLRA), and therefore dismissed his
complaint for failure to state a claim upon which relief may be
granted, Fed. R. Civ. P. 12(b)(6). We affirm.
BACKGROUND BACKGROUND
We review the dismissal de novo, considering only those __ ____
facts alleged in the complaint, and drawing all reasonable
inferences therefrom. Lesser v. Little, 857 F.2d 866, 867 (1st ______ ______
Cir. 1988). We will affirm the dismissal "only if it appears
beyond doubt that [Tamburello] can prove no set of facts which
would entitle him to relief." Id. (citing Conley v. Gibson, 355 __ ______ ______
U.S. 41, 45-46 (1957)).
In July 1991, Tamburello became a union steward at
Comm-Tract. He alleges that soon afterwards the individual
defendants -- the president, general manager, and manager of
Comm-Tract -- began harassing, threatening and intimidating him.
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Specifically, Tamburello alleges that they pulled him off
favorable jobs, replacing him with less skilled workers; gave him
menial job assignments; withheld his personnel file from him;
took him off jobs to deny him overtime pay; made him take a
forced vacation or face termination; took away his company
vehicle; and made threatening anti-union statements. Tamburello
alleges that these actions "were solely to harass, embarrass,
coerce, and intimidate [him] into giving up his Steward position
with the Union." As a result of this intimidation, Tamburello
resigned his position with Comm-Tract in May 1993, and
subsequently instituted this action.
DISCUSSION DISCUSSION
Count I of Tamburello's complaint alleges that the
individual defendants conducted the affairs of an enterprise,
Comm-Tract, through a pattern of Hobbs Act extortion of
Tamburello's property rights, in violation of RICO, 18 U.S.C.
1962(c). Count II alleges that the individual defendants
conspired to violate RICO by knowingly joining the enterprise and
by committing, or agreeing to commit at least two acts of
racketeering. Count IV alleges that all defendants violated
Tamburello's rights under the MCRA.1 We address the RICO claims
first.
I. The RICO Claims I. The RICO Claims _______________
____________________
1 Tamburello does not appeal the district court's dismissal of
Counts III and V.
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Tamburello alleges that the actions of his supervisors
at Comm-Tract constituted a pattern of extortion to deprive him
of his rights to speak out on union matters, his rights under the
collective-bargaining agreement, and his right to his job. The
district court held that Tamburello's RICO claims are preempted
by the NLRA, which "pre-empts state and federal court
jurisdiction to remedy conduct that is arguably protected or
prohibited by the Act." Amalgamated Ass'n of Street, Elec. Ry. & ________________________________________
Motor Coach Employees v. Lockridge, 403 U.S. 274, 276 (1971) ______________________ _________
(citing San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, _______________________________ ______
244 (1959)).
The NLRA "is a comprehensive code passed by Congress to
regulate labor relations in activities affecting interstate and
foreign commerce." Nash v. Florida Indus. Comm'n, 389 U.S. 235, ____ _____________________
238 (1967). The NLRA reflects congressional intent to create a
uniform, nationwide body of labor law interpreted by a
centralized expert agency -- the National Labor Relations Board
(NLRB). Accordingly, the NLRA vests the NLRB with primary
jurisdiction over unfair labor practices. See 29 U.S.C. 158. ___
Applying these principles, the Garmon Court held that "[w]hen an ______
activity is arguably subject to 7 or 8 of the [NLRA], the
States as well as the federal courts must defer to the exclusive
competence of the National Labor Relations Board if the danger of
state interference with national policy is to be averted."
Garmon, 359 U.S. at 245. The Court has interpreted this to mean ______
that, "as a general rule, neither state nor federal courts have ____
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jurisdiction over suits directly involving 'activity [which] is ____________
arguably subject to 7 or 8 of the Act.'" Vaca v. Sipes, 386 ____ _____
U.S. 171, (1967) (emphasis added; and quoting Garmon, 359 U.S. at ______
245). See also Morgan v. Massachusetts General Hosp., 901 F.2d ________ ______ ___________________________
186, 194 (1st Cir. 1990) ("as a general rule, the [NLRB] has
'exclusive jurisdiction to find, prevent, and rectify unfair
labor practices'") (quoting New Mexico Dist. Council of _________________________________
Carpenters, AFL-CIO v. Mayhew Co., 664 F.2d 215 (10th Cir. 1981); ___________________ __________
and collecting cases)). A primary justification of the
preemption doctrine is "the need to avoid conflicting rules of
substantive law in the labor relations area and the desirability
of leaving the development of such rules to the administrative
agency created by Congress for that purpose . . . ." Vaca, 386 ____
U.S. at 180-81.2
The alleged wrongful conduct in this case is arguably
prohibited by the NLRA. Section 8(a)(3) of the NLRA makes it
____________________
2 Although the Garmon doctrine, which is rooted in the Supremacy ______
Clause of the United States Constitution, U.S. Const. art. VI,
cl. 2, was originally concerned only with federal supremacy over
conflicting state laws, it has been extended to cover the _____
relationship between the NLRA and other federal statutes. See ___
Connell Co. v. Plumbers & Steamfitters, 421 U.S. 616, 626 (1974); __________ _______________________
Morgan, 901 F.2d at 194; New Bedford Fishermen's Welf. Fund v. ______ ___________________________________
Baltic Ent., 813 F.2d 503, 504-05 (1st Cir. 1987). But see ___________ ________
United States v. Boffa, 688 F.2d 919, 931-33 (3d Cir. 1982) ______________ _____
(concluding that Garmon does not apply to conflicts between the ______
NLRA and federal statutes), cert. denied, 460 U.S. 1022 (1983). _____ ______
Because the NLRA's relationship with a state statute implicates
the Supremacy Clause, and its relationship with a federal statute
does not, some courts hold that the analysis in the former
situation should be stricter than in the latter. See Britt v. ___ _____
Grocers Supply Co., Inc., 978 F.2d 1441, 1446-47 (5th Cir. 1992); ________________________
Boffa, 688 F.2d at 931-33. The facts of this case are such that _____
we need not at this time decide whether, or to what extent, we
agree with this proposition.
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unlawful for an employer "by discrimination in regard to hire or
tenure of employment to encourage or discourage membership in any
labor organization." 29 U.S.C. 158(a)(3). The ultimate
question presented by Tamburello's claims is whether his
supervisors at Comm-Tract intimidated, coerced, threatened, and
harassed him into quitting his job in retaliation for his union
activities as a union steward. It is beyond dispute that these
allegations, if found to be true, would constitute a violation of
the NLRA. See Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 894 (1983) ___ ______________ ____
(an employer violates 8(a) (3) "when, for the purposes of
discouraging union activity, . . . it purposefully creates
working conditions so intolerable that the employee has no option
but to resign").3 Unless an exception applies, therefore,
Tamburello's RICO claims are subject to the NLRB's primary
jurisdiction.
There are three generally recognized exceptions to the
NLRB's primary jurisdiction. The first is where Congress has
expressly carved out an exception to the NLRB's primary
jurisdiction. Vaca, 386 U.S. at 179-80 (citing cases); Brennan ____ _______
v. Chestnut, 973 F.2d 644, 646 (8th Cir. 1992). Congress has not ________
____________________
3 Tamburello's claims are also arguably subject to 8(a)(1) of
the NLRA, which makes it an unfair labor practice for an employer
to "interfere with, restrain, or coerce employees in the exercise
of the rights guaranteed in [ 7 of the NLRA]." 29 U.S.C. 158
(a)(1). Section 7 provides, in pertinent part, that employees
shall have the right to "self-organization, to form, to 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.
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made an exception to the NLRB's primary jurisdiction for claims
alleging extortion. Indeed, the only labor-related
"racketeering" activity expressly listed as predicates to
liability under RICO are actions concerning restrictions of
payments and loans to labor organizations, or those relating to
embezzlement from labor funds. See 18 U.S.C. 1961(1)(C); 29 ___
U.S.C. 186, 501(c). The specific exceptions carved out in
186 and 501(c) support the conclusion that Congress intended that
"violations of labor laws other than 186 [or 501(c)] alleged
as predicate acts are preempted." Brennan, 973 F.2d at 647 _______
(citing Butchers' Union, Local No. 498 v. SDC Inv., Inc., 631 F. ______________________________ ______________
Supp. 1001 (E.D.Cal. 1986)). This exception therefore does not
apply.
The second exception applies when the regulated
activity touches "interests so deeply rooted in local feeling and
responsibility that, in the absence of compelling congressional
direction," courts "could not infer that Congress had deprived
the States of the power to act." Sears, Roebuck & Co. v. ______________________
Carpenters, 436 U.S. 180, 195 (1977) (quoting Garmon 359 U.S. at __________ ______
244). This exception is inapplicable to plaintiff's RICO claims
because they involve the relationship between two federal laws,
as opposed to a state and a federal law.
The third exception holds that the NLRB's exclusive
jurisdiction does not apply if the regulated activity is merely a
peripheral or collateral concern of the labor laws. Vaca, 386 ____
U.S. at 179-80; Brennan, 973 F.2d at 646. Under this exception, _______
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federal courts may decide labor questions that emerge as
collateral issues in suits brought under statutes providing for
independent federal remedies. Connell Construction, 421 U.S. at ____________________
626; Britt v. Grocers Supply Co., Inc., 978 F.2d 1441, 1446 (5th _____ ________________________
Cir. 1992).
Plaintiff's allegations arguably establish violations
of both RICO and the NLRA -- extortion on the one hand, and
unfair labor practices on the other. We must determine whether
the issues raised by Tamburello's potential unfair labor practice
claims are merely collateral to the issues raised by his RICO
extortion claims. In making this determination, several federal
courts take the position that courts must defer to the primary
jurisdiction of the NLRB if the underlying conduct of the RICO
claim is wrongful only by virtue of, or reference to, the labor
laws. See Brennan, 973 F.2d at 646; Talbot, 961 F.2d at 662; ___ _______ ______
Mann v. Air Line Pilots Assoc., 848 F. Supp. 990, 993 (S.D.Fla. ____ _______________________
1994); McDonough v. Gencorp, Inc., 750 F. Supp. 368, 370 _________ ______________
(S.D.Ill. 1990). One federal court has framed the issue as
follows:
RICO should be read as limited by the
exclusive jurisdiction of the NLRA only
when the Court would be forced to
determine whether some portion of the
defendant's conduct violated labor law
before a RICO predicate act would be
established. So long as the predicate
act exists independent of any unfair
labor practice resolutions, the NLRB's
exclusive jurisdiction is not violated
since the Court will not be forced to
interpret labor law except as a
collateral matter. However, if the
existence of the predicate acts depends
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wholly upon a determination that a
violation of federal labor law occurred,
jurisdiction is preempted.
MHC v. Intern. Union, United Mine Wkrs. of Am., 685 F. Supp. ___ __________________________________________
1370, 1376-77 (E.D.Ky. 1988). Similarly, we have held, in the
context of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
2000e et seq., that the NLRA is the exclusive remedy for claims
"which hinge on an unfair labor practice having occurred."
Morgan, 901 F.2d at 194. ______
Like Tamburello, the plaintiff in Brennan alleged _______
extortion as a predicate RICO act. In holding that the
plaintiff's RICO extortion claim was "preempted" (see supra n.2) ___ _____
by the NLRA, the Eighth Circuit court noted that 18 U.S.C. 1951
(1988) is a generic law prohibiting extortion,4 and reasoned
that the court was therefore forced to look to the labor laws to
define the alleged illegal conduct. Because the defendant's
conduct was illegal, if at all, only by virtue of the NLRA, the
____________________
4 18 U.S.C. 1951 provides:
(a) Whoever in any way or degree
obstructs, delays, or affects commerce or
the movement of any article or commodity
in commerce, by robbery or extortion or
attempts or conspires so to do, or
commits or threatens physical violence to
any person or property in furtherance of
a plan or purpose to do anything in
violation of this section shall be fined
not more than $10,000 or imprisoned not
more than twenty years, or both.
RICO defines "extortion" as "the obtaining of property from
another, with his consent, induced by wrongful use of actual or
threatened force, violence, or fear, or under color of official
right." 18 U.S.C. 1951(b)(2).
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court concluded that the NLRB had exclusive jurisdiction to
resolve what was, at its essence, an unfair labor practice claim.
See Brennan, 973 F.2d at 647. ___ _______
For reasons similar to those expressed in Brennan, we _______
conclude that the unfair labor practice issues implicated by
Tamburello's complaint are not merely collateral to his RICO
claims.5 Tamburello alleges that his supervisors placed him on
the less desirable work assignments, reduced his chances for
overtime pay, made him take a forced vacation or face
termination, took away his company vehicle, and made threatening
anti-union activities, all to coerce him into giving up his union
steward position, and, eventually, to resign his position with
Comm-Tract. The problem is that none of this alleged conduct is
illegal without reference to the NLRA. It is the NLRA that
prohibits employers from creating intolerable working conditions
to discourage union activities, see 29 U.S.C. 158(a)(3); Sure- ___ _____
Tan, 467 U.S. 894, and it is the NLRA that prohibits an employer ___
from interfering with an employee's right to join a union and
engage in concerted activities for mutual aid and protection.
See 29 U.S.C. 158(a)(1), 157. Indeed, one would presume that ___
Congress passed the NLRA, at least in part, precisely because
____________________
5 We note also that, in a general sense, claims alleging
employer retaliation for protected union activities are not
merely a peripheral concern of the NLRA. As indicated above, the
conduct alleged in this case would, if true, constitute an unfair
labor practice under the NLRA. The authority of the NLRB to
remedy unfair labor practices is central to its purpose. NLRB v. ____
State of Illinois Dept. of Employment Security, 988 F.2d 735, 739 ______________________________________________
(7th Cir. 1993).
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conduct such as that complained of by Tamburello was not
theretofore prohibited. We thus agree with the district court's
conclusion that "the alleged conduct that led to [Tamburello's]
termination of employment is illegal only by reference to union
activities."
In order to determine whether plaintiff has established
a RICO predicate act, a reviewing court would be forced to decide
whether some portion of the defendant's conduct violated the
federal labor laws. Because plaintiff's claim hinges upon a
determination of whether an unfair labor practice has occurred,
we conclude that his RICO claims are subject to the primary
jurisdiction of the NLRB.6
As a final matter, we will briefly address two
additional arguments proffered by the plaintiff. First,
Tamburello contends that the NLRA does not apply to his
allegations at all because his RICO claims are asserted against
the individual defendants, and not the "employer" within the
meaning of the NLRA. The NLRA expressly provides, however, that
"[t]he term 'employer' includes any person acting as an agent of
an employer, directly or indirectly." 29 U.S.C. 152(2). The
____________________
6 We note that the question of whether a labor law issue is
collateral to issues raised by a claim under another statute is
an intensely fact driven inquiry. The focus must be on the
particular allegations of the plaintiff's complaint to determine
whether any or all of the claims may be resolved without
determination of questions of federal labor law. In addition,
"[i]t is the conduct being regulated, not the formal description
of governing legal standards, that is the proper focus of
concern." Motor Coach Employees v. Lockridge, 403 U.S. 274, 292 _____________________ _________
(1971).
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district court's finding that the individual defendants -- the
president, general manager, and manager of Comm-Tract -- acted as
the agents of the company is supported by the record,
particularly since Tamburello's complaint alleged that the
individual defendants controlled Comm-Tract. See American Press, ___ _______________
Inc. v. NLRB, 833 F.3d 621, 625 (6th Cir. 1987) (the test to be ____ ____
applied is "whether, under all the circumstances, the employees
could reasonably believe that an employee was reflecting company
policy, and speaking and acting for management") (quoting
Aircraft Plating Co., 213 N.L.R.B. 664 (1974)). We therefore _____________________
reject Tamburello's argument that the NLRA does not apply to his
RICO claims.
Second, Tamburello strains to fit his case within the
exception to Garmon granted suits alleging a breach of the duty ______
of fair representation under 9(a) of the NLRA. See Breininger ___ __________
v. Sheet Metal Workers Int'l Assoc. Local Union No. 6, 493 U.S. ____________________________________________________
67, 74 (1989) (reiterating rule that Garmon preemption does not ______
apply to suits alleging a breach of the duty of fair
representation) (citing Vaca, 386 U.S. at 181). Tamburello did ____
not sue his union directly, but rather brought his fair
representation allegations as part of a "hybrid" action under
301, which provides federal jurisdiction for employees to sue
their employer for breach of a collective bargaining agreement,
and their union for breach of its duty of fair representation.
See 29 U.S.C. 185(a); Vaca, 386 U.S. at 186. The Breininger ___ ____ __________
Court implied that Garmon would not apply to hybrid 301/fair ______
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representation claims because of the important interest of having
the same entity adjudicate a joint claim against both the
employer and the union. See Breininger, 493 U.S. at 80-84. ___ __________
Tamburello argues that the reasoning of Breininger applies to him __________
because he brought both a RICO claim and a fair representation
claim.
Breininger concerned hybrid actions against the __________
employer for breach of a collective bargaining agreement, and
against the union for breach of the duty of fair representation.
Tamburello's argument fails because his duty of fair
representation claim (Count III) was dismissed by the district
court, and is not prosecuted on appeal, and his RICO claims
implicate none of the concerns underlying Breininger and Vaca for __________ ____
exempting fair representation claims from the Garmon doctrine. ______
Vaca and Breininger exempted fair representation claims from the ____ __________
reach of Garmon for two related reasons. First, the Court noted ______
that the duty of fair representation has judicially evolved, and
that it predated the prohibitions against unfair labor practices.
Breininger, 493 U.S. at 74-79 (citing Vaca, 386 U.S. at 181). __________ ____
Second, noting that fair representation claims often involve
matters outside the NLRB's unfair labor practice jurisdiction,
the Court expressed its doubt that the NLRB brought any greater
degree of expertise to such claims than courts. Id. Because __
Tamburello has no viable duty of fair representation claim before
the court, and his RICO claims do not implicate the concerns
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underlying Breininger, his claims remain subject to the primary __________
jurisdiction of the NLRB.
II. The State Law Claims II. The State Law Claims ____________________
In Count IV, Tamburello alleges that the conduct of his
supervisors violated his rights under the MCRA, Mass. Gen. L. ch.
12 11, which provides a remedy for the interference "by threat,
intimidation, or coercion" with an individual's "exercise or
enjoyment of rights secured by the constitution or laws of the
United States, or of rights secured by the constitution or laws
of the commonwealth." Mass. Gen. L. ch. 12, 11I; Bally v. _____
Northeastern University, 403 Mass. 713, 717 (1989). As explained _______________________
above, the alleged conduct of Tamburello's supervisors is
arguably subject to 8(a)(3) of the NLRA, which prohibits an
employer from discriminating against an employee on the basis of
union status, and also to 8(a)(1). As with the RICO claim,
therefore, the question is whether any of the three exceptions to
Garmon preemption apply. The first and third exceptions do ______
not;7 we address the second exception below.
Garmon preemption does not apply when the underlying ______
regulated activity touches "interests so deeply rooted in local
feeling and responsibility that, in the absence of compelling
____________________
7 The first exception -- whether Congress has explicitly carved
out an exception to the NLRB's exclusive jurisdiction -- is
inapplicable to Tamburello's state law claims. With respect to
the third exception, we concluded above that the unfair labor
practice issues implicated by Tamburello's complaint are not
merely collateral to his RICO claims. For the same reasons, they
are not merely collateral to his MCRA claims. The third
exception therefore does not apply.
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congressional direction," courts "could not infer that Congress
had deprived the States of the power to act." Sears, Roebuck, _______________
436 U.S. at 195 (quoting Garmon 359 U.S. at 244). In cases ______
where, as here, the underlying conduct is arguably prohibited by __________
the NLRA, the Court has identified two prerequisites to
application of the "local interests" exception. First, the state
must have a significant interest in protecting the citizen from
the challenged conduct. Second, the controversy which could be
presented to the state court must be different from that which
could have been presented to the NLRB. Sears, Roebuck, 436 U.S. ______________
at 196-97. As the Court explained:
The critical inquiry, therefore, is
not whether the State 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 Labor
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 doctrine was designed to ______
avoid.
Id. at 197. __
We assume, arguendo, that the state has a significant ________
interest in protecting an employee from the harassment of his
supervisors in retaliation for his union activities. We agree
with the district court, however, that "Plaintiff's [MCRA] claims
raise the same question as would be asked in an unfair labor
practice proceeding, namely, whether [his supervisors] placed
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plaintiff on less desirable work assignments, reduced his chances
for overtime pay, and harassed him in retaliation for his union
activities."
Because the controversy which would be presented to a state court
is identical to that which would be presented to the NLRB, there
is a significant risk of state interference with the unfair labor
practice of the NLRB. Under Garmon and Sears, Roebuck, ______ _______________
Tamburello's MCRA claims are therefore preempted by the NLRA.
CONCLUSION CONCLUSION
For the foregoing reasons, the judgment of the district
court is affirmed. affirmed ________
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