Dang v. Maruichi American Corp. CA2/2

Filed 9/1/16 Dang v. Maruichi American Corp. CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

KHANH DANG, B269005

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. BC552668) v.

MARUICHI AMERICAN CORPORATION,

Defendant and Respondent.

APPEAL from an order of the Superior Court of Los Angeles County. Elizabeth R. Feffer, Judge. Reversed and remanded.

Gould & Associates, Michael A. Gould, Aarin A. Zeif for Plaintiff and Appellant.

Cummins & White, Larry M. Arnold, Erick J. Becker, Scott R. Carpenter for Defendant and Respondent.

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Plaintiff and appellant Khanh Dang sued his former employer, defendant and respondent Maruichi American Corporation (Maruichi), for wrongful termination in violation of public policy, claiming that Maruichi discharged him for engaging in concerted activity relating to unionizing efforts. The trial court granted summary judgment in Maruichi’s favor. The court found it lacked jurisdiction because Dang’s claim was preempted by the National Labor Relations Act (NLRA; 29 U.S.C. § 151 et seq.) under San Diego Unions v. Garmon (1959) 359 U.S. 236 (Garmon). On appeal, Dang argues that, as a supervisor, he is not covered under the NLRA, and that the NLRA does not reach his claim. Based on the evidence presented on the motion for summary judgment, we find there is no basis to conclude Dang’s claim is arguably subject to the NLRA. Accordingly, we reverse. BACKGROUND Khanh Dang filed a complaint in July 2014, against Maruichi for wrongful termination in violation of public policy. The complaint contained only cursory allegations, stating that Dang worked as a maintenance supervisor for Maruichi until it terminated his employment because he was involved in concerted activity, including attempts to join a union. Maruichi moved for summary judgment in August 2015, arguing primarily that Dang’s claim was preempted by the NLRA. In support of the motion, Maruichi presented evidence that, in July 2013, it became aware of an effort by the United Steelworkers to organize employees at Dang’s place of employment, Maruichi’s Santa Fe Springs facility. The union won an election among Maruichi employees and was certified as their collective bargaining representative in September 2013. Prior to the election, Dang was discharged because, according to Maruichi’s general manager, Maruichi employees indicated Dang’s mistreatment of them was the reason they wanted to unionize. Dang opposed the motion for summary judgment, arguing that, as a supervisor, his employment was not subject to the NLRA. He asserted that he was fired for engaging in concerted activity related to potential unionizing. According to Dang, the activity he