and/or disability. Count I of plaintiff's Complaint purports to allege the state-law tort of "wrongful discharge" in violation of public policy. Count II asserts that plaintiff had "an implied contract of continued long-term employment," that the discharge decision was made in bad faith, and that the discharge "constituted an unlawful breach by defendant of the contract of employment between defendant and plaintiff."
While plaintiff's counsel has struggled valiantly to find an escape, I am compelled to conclude that settled principles of federal labor law mandate dismissal of this action. Generally speaking, § 301 of the National Labor Relations Act, 29 U.S.C. § 185, provides the exclusive remedy for violations of collective bargaining agreements. No employee protected by a collective bargaining agreement can sue the employer except after pursuing his grievance remedies under the contract, and either obtaining successful judicial review of the arbitration award, or establishing that his right of fair representation was violated. In the present case, there is no contention that plaintiff was not fairly and properly represented in the grievance and arbitration proceedings; moreover, any challenge to the arbitration award was required to be filed within six months after October 4, 1983, when the award was rendered.
There are, it is true, a few narrow exceptions to the general doctrine of federal preemption. For example, covered employees are not limited to § 301 litigation to obtain relief from racial discrimination, Alexander v. Gardner-Denver, 415 U.S. 36, 39 L. Ed. 2d 147, 94 S. Ct. 1011 (1974). And an employee is not precluded from litigating various independent torts under state law. See, e.g., Linn v. U.S. Plant Guard Workers, 383 U.S. 53, 15 L. Ed. 2d 582, 86 S. Ct. 657 (1966) (defamation); Automobile Workers v. Russell, 356 U.S. 634, 78 S. Ct. 932, 2 L. Ed. 2d 1030 (1958) (black-listing); Farmer v. United Brotherhood of Carpenters and Joiners, 430 U.S. 290, 51 L. Ed. 2d 338, 97 S. Ct. 1056 (1977) (intentional infliction of emotional distress).
When, however, the harm sought to be addressed is that stemming from discharge or other disciplinary action, there are few, if any, exceptions to the preemption principle. The case which is perhaps most helpful to plaintiff is Garibaldi v. Lucky Food Stores, Inc., 726 F.2d 1367 (9th Cir. 1984). In that case, plaintiff had been employed as a truck driver delivering milk. He observed that a load of milk he was scheduled to deliver had spoiled. Allegedly, he was told to deliver the milk anyway, but instead complained to the local health authorities--an act of "whistle-blowing" for which, allegedly, he was fired. He unsuccessfully pursued a grievance and, a year or so later brought suit for damages. Treating the case as one of first impression, the Ninth Circuit Court of Appeals held that the action could be maintained. The court reasoned that the state interest in protecting the public health was very strong, and outweighed whatever federal interest there might be in assuring uniform interpretation and implementation of national labor policy. Holding that Garibaldi's state-law claims were not preempted by § 301, the court remanded the action to the state courts.
Soon afterward, however, the same court decided Olguin v. Inspiration Consolidated Copper Co., 740 F.2d 1468 (9th Cir. 1984), in which plaintiff alleged that he was discharged for complaining about violations of mine-safety requirements, and also for "concerted activity" involving such violations. The Olguin court upheld dismissal of the action, noting that mine-safety regulations were a federal matter, and that the issues sought to be raised fell squarely within the employer-employee, collective bargaining, context preempted by § 301.
It is not at all clear that Garibaldi would be followed by the Third Circuit Court of Appeals; but, assuming Garibaldi was correctly decided, I am persuaded that the present case more nearly resembles Olguin than Garibaldi. Plaintiff correctly asserts that the Commonwealth of Pennsylvania has a legitimate interest in upholding the proper enforcement of its workers compensation laws, and thus in providing a remedy against retaliation for filing a compensation claim. But vindication of that interest is not significantly impeded by § 301 preemption. The "public policy" involved is directly related to the employment relationship itself. Plaintiff is attempting to sue his employer for damages for wrongful discharge, a matter governed entirely by the collective bargaining agreement.
Plaintiff seems to argue that the issue of retaliation was not, and could not have been, considered in the grievance proceeding. Indeed, plaintiff's argument can be interpreted as asserting that the collective bargaining agreement provided virtually no protection against wrongful discharge, since, it is contended, the contract empowered the employer to discharge plaintiff at will. I believe this is an unduly strained interpretation of the collective bargaining agreement.
Article 43 of the collective bargaining agreement governs "discharge or suspension". Its language is, concededly, not a model of clarity. The pertinent provisions are as follows:
"The Employer shall not discharge nor suspend any employee without just cause until the case has been discussed with the Business Agent in person, where practical except where the provisions of this Article provide for discharge, but in respect to suspension or discharge shall give at least one warning notice of the complaint against such employee to the employee, in writing, and a copy of the same to the Union and Job Steward affected, except that no warning notice need be given to an employee before he is discharged if the cause of such discharge is . . . proven theft or dishonesty. . . .