Adkins v. Mireles

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID ADKINS, 
Plaintiff,
and
BERNARDO ALVAREZ; RAUL
ALVAREZ; DANIEL ATENCIO; ROBERT
AUXIER; ERNESTO BARRAZA; JAMES
BENTSON; DANIEL BLACK; VIRGINIA
BRANDON; BRYANT; ARMANDO
BUSTAMENTE, JR.; EDWARD CESENA,
JR.; ARTHUR CENA; CALLEN
CAMPBELL; LILA DIAZ; DORENE
DORIC; JEFF DUNNE; JOSE ESPINOZA;
ANDREW FINLEY; MICHAEL No. 06-56005
FORNASERI; DANIEL GALLEGOS;
DAVID GARCIA; DARVEY GUIDRY;  D.C. No.
CV-98-00979-AHS
MARTIN GONZALEZ; FERNANDO
GONZALEZ; RICHARD HEITZWEBEL; OPINION
CHARLES HEARN; ROSEMARY JAIME;
PATRICK KING; KENNETH LAMMON;
JACKIE LOPEZ; CECILIA LOZANO;
BARBARA LUTE; FRANCISCO MARIN;
RAUL MATA; KATHARINE MIRANDA;
PETER MILLER; LINDA MORALES;
WILLIAM MUELLER, JR.; MATTHEW
MONTGOMERY, JR.; EARL PEDFORD;
VICTOR PAZ; JOSE PEREZ; SEFO
PURCELL; MARTIN RAMOS; LEO RUIZ
MICHAEL RODRIGUEZ; MARIE RILEY;
BLAINE ROSKELLEY; RITCH SMITH;
SAMUEL SALDANA;

5701
5702 ALVAREZ v. MIRELES
RICHARD SARMAST; THOMAS SERVIA; 
MARTIN SEPULVEDA; KATHY
SEWARD; RICHARD SHERMAN; RITA
SLAGLE; JULIE TOONE; HIRAM
TRAVIS; JOHN VANDYKEN; JOSE
VARGAS; TED WIGHTMAN; DARRYL
WILLIAMS; GERALD WILDERMUTH;
ALBERT ZAMORA, 
Plaintiffs-Appellants,
v.
ED MIRELES; HARRY ASHLEY;
TEAMSTERS LOCAL 952, a labor
organization,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Alicemarie H. Stotler, District Judge, Presiding
Argued and Submitted
February 13, 2008—Pasadena, California
Filed May 16, 2008
Before: Betty B. Fletcher, Daniel M. Friedman,* and
N. Randy Smith, Circuit Judges.
Opinion by Judge B. Fletcher
*The Honorable Daniel M. Friedman, United States Senior Circuit
Judge for the Federal Circuit, sitting by designation.
ALVAREZ v. MIRELES 5705
COUNSEL
Lee A. Wood (argued), Raymond E. Brown, Lee A. Wood &
Associates, P.C., Santa Ana, California, for the plaintiffs-
appellants.
Fern M. Steiner (argued), Thomas Tosdal, Tosdal, Smith,
Steiner & Wax, San Diego, California, for the defendants-
appellees.
OPINION
B. FLETCHER, Circuit Judge:
This appeal arises out of a union-negotiated collective bar-
gaining agreement (“CBA”) governing employees of Lucky
Stores, Inc.’s (“Lucky”) general merchandise warehouse.
David Adkins and other former employees at Lucky’s Fuller-
ton, California warehouse (collectively, “Appellants”), all
members of Teamsters Local 952 (“the Union”), appeal the
district court’s judgment, following a partial summary judg-
ment and jury trial, in favor of the Union, Ed Mireles,
secretary-treasurer of the Union, and Harry Ashley, president
of the Union (collectively, “Appellees”).
5706 ALVAREZ v. MIRELES
Appellants allege breach of the duty of fair representation,
breach of contract, negligent misrepresentation, fraud &
deceit, intentional infliction of emotional distress, violation of
the Racketeer Influenced and Corrupt Organizations Act, 18
U.S.C. §§ 1961-1968 (“RICO”), and conspiracy to commit
RICO violations. The district court granted summary judg-
ment in favor of Appellees on all but one claim, finding the
other claims preempted by federal law. The remaining claim,
for breach of the duty of fair representation, was decided after
an 8-day jury trial.1 Appellants contend the district court erred
by finding preemption as to the dismissed claims and as to the
claim that went to trial by granting a motion in limine to
exclude evidence of a 1985 incident in which two or more of
the Appellants burned their teamster jackets. We have juris-
diction under 28 U.S.C. § 1291. We affirm.
We hold that the district court did not err in holding that
federal law preempts Appellants’ breach of contract, breach
of covenant of good faith and fair dealing, misrepresentation,
and intentional infliction of emotional distress claims because
each implicates the duty of fair representation. See Ford
Motor Co. v. Huffman, 345 U.S. 330, 338 (1953) (holding that
a union acting in its representative capacity owes a duty of
fair representation to those on whose behalf it acts). The dis-
trict court did not err in finding that the Labor Management
Relations Act (“LMRA”) § 301, 29 U.S.C. § 185 preempts
Appellants’ fraud and deceit claim, because the claim cannot
be maintained without the court interpreting the provisions of
the CBA. The Appellants’ RICO claims are preempted under
San Diego Building Trades Council v. Garmon, 359 U.S. 236,
244-45 (1959), because Appellants alleged an unfair labor
practice—bargaining in bad faith—which is prohibited by the
National Labor Relations Act (“NLRA”) §§ 7 and 8, 29
U.S.C. §§ 157 and 158, and thus under the exclusive jurisdic-
tion of the National Labor Relations Board (“NLRB”). Lastly,
1
This claim too is governed by federal law but may be tried in federal
court. See Vaca v. Snipes, 386 U.S. 171, 179 (1967).
ALVAREZ v. MIRELES 5707
the Appellants failed to perfect their challenge to the district
court’s evidentiary decision to exclude evidence regarding the
jacket-burning incident: while Appellants proffered this evi-
dence in limine, they did not attempt to introduce the evidence
at trial.
I. Factual Background and Procedural History
In 1985, a strike by Lucky employees, including members
of the Union, led to a settlement which left some warehouse
employees unsatisfied. In response to the settlement of that
strike, some employees at the Fullerton warehouse, including
at least two of the Appellants in this case, burned their team-
ster jackets in protest on national television. Appellants allege
that as a result of this incident, Mireles harbored animosity
toward the Fullerton warehouse employees for the next
decade, then exacted revenge during a September 1994
Union-initiated negotiation with Lucky over the terms of a
CBA, which was to cover the Fullerton warehouse, as well as
others in Buena Park and Irvine, for the years 1994 to 1998.
Appellants sought protective language in the CBA that
would allow them to “follow their product,” that is, to obtain
an assurance from Lucky that if the Fullerton warehouse was
closed and the product transferred, Appellants would continue
to be employed by Lucky and transferred to the warehouse
that received the transferred product. Mireles negotiated with
Lucky—in the absence of other Union business agents who
were present at prior negotiations—and secured this protec-
tive language in the CBA for employees of the Buena Park
and Irvine warehouses but not for employees of the Fullerton
warehouse. Lucky planned to close down the Fullerton facil-
ity in 1998 without allowing transfers to the larger planned
replacement warehouse. Lucky gave the Union jurisdiction
over this new warehouse, which opened in La Habra, near the
old Fullerton facility, in 1996. Appellants claim Mireles rep-
resented to them, contrary to the actual terms of the CBA, that
they could follow their product, and that when Appellants
5708 ALVAREZ v. MIRELES
were terminated from their employment at the Lucky ware-
house in Fullerton in September 1998, Mireles refused to pur-
sue their grievances. In October 1998, Appellants filed the
present complaint in Orange County Superior Court; it was
later removed to federal district court.
Appellants alleged that Appellees colluded with Lucky to
persuade the Appellants to accept a CBA that was substan-
tially less protective of Appellants’ rights than was repre-
sented to them. Appellants further maintained that Appellees
were motivated by the Union’s desire to secure Lucky’s pro-
spective cooperation in becoming the labor representative of
a larger number of Lucky’s employees, and by Mireles’s
long-harbored animosity toward Appellants. Appellants con-
tended that the Union negotiated a secret deal with Lucky,
which was not disclosed to them; that they ratified the 1994-
98 CBA because they relied on material misrepresentations by
the Union that Fullerton workers would be allowed to follow
their product; and that the Union failed to properly represent
them both in the 1994 CBA negotiations and 1998 negotia-
tions about Lucky’s closure of the Fullerton facility at which
they worked.
In response to Appellees’ motion for summary judgment,
the district court dismissed with prejudice the breach of the
duty of fair representation claim to the extent it was asserted
against individual Appellees. It reasoned that LMRA § 301
exempts union agents from claims of any nature related to the
CBA and the collective bargaining process.2 Atkinson v. Sin-
clair Refining Co., 370 U.S. 238, 249 (1962). Appellants do
not challenge this portion of the district court’s order. The dis-
trict court held that the other claims save one were preempted
by federal labor laws and dismissed them with prejudice.
Appellants appeal these rulings.
2
LMRA § 301 provides that “Suits for violation of contracts between an
employer and a labor organization representing employees in an industry
affecting commerce . . . may be brought in any district court of the United
States having jurisdiction of the parties[.]” 29 U.S.C. § 185.
ALVAREZ v. MIRELES 5709
The case proceeded to jury trial on Appellants’ remaining
claim that the Union breached its duty of fair representation
by acting in an arbitrary, discriminatory, or bad faith manner
towards the Appellants. The jury returned a verdict for Appel-
lees, finding that they did not breach their duty of fair repre-
sentation.
Appellants allege that their jury trial was prejudiced by the
district court’s grant of a motion in limine to exclude evidence
regarding the 1985 jacket-burning incident. In arguing against
the motion in limine, Appellants’ counsel represented to the
court that a number of Appellants were going to testify that
Mireles thought that this incident, which was shown nation-
ally on television, set back the Union’s effort and was a major
embarrassment to him. Appellants allege that this incident
along with others in the early 1990s motivated Mireles and
the Union to act against them. Unpersuaded by Appellants’
argument, the court granted the motion without prejudice,
prohibiting reference to the jacket burning incident without
further leave of the court, but allowing Appellants to develop
a written offer of proof, outside the presence of the jury, to
include evidence regarding the incident. Appellants did not
make an offer of proof. Appellants timely appealed this evi-
dentiary ruling and the partial summary judgment.
II. Preemption
A ruling on a motion for partial summary judgment merges
with the final judgment and is reviewable on appeal from the
final judgment. Stewart Title & Trust of Phoenix v. Ordean,
528 F.2d 894, 897, fn.1 (9th Cir. 1976). We review an order
granting summary judgment de novo. See Universal Health
Servs., Inc. v. Thompson, 363 F.3d 1013, 1019 (9th Cir.
2004). On review, we must determine, viewing the evidence
in the light most favorable to the nonmoving party, whether
there are any genuine issues of material fact and whether the
district court correctly applied the relevant substantive law.
5710 ALVAREZ v. MIRELES
See Olsen v. Idaho State Bd. of Medicine, 363 F.3d 916, 922
(9th Cir. 2004).
In Garmon, the Court held that states may not regulate
activity that is actually or arguably protected or prohibited by
the NLRA: “When it is clear or may fairly be assumed that
the activities which a State purports to regulate are protected
by § 7 of the [NLRA], or constitute an unfair labor practice
under § 8, due regard for the federal enactment requires that
state jurisdiction must yield.” Garmon, 359 U.S. at 244. The
Garmon doctrine holds that the national interest in having a
consistent body of labor law requires that the NLRB have
exclusive jurisdiction to regulate activity that could arguably
constitute unfair labor practices.3
The district court explained, however, that in cases where
it cannot be fairly inferred that Congress intended exclusive
jurisdiction to lie with the NLRB, the Garmon doctrine has
not been rigidly applied. Vaca v. Snipes, 386 U.S. 171, 179
(1967). Some causes of action have been found cognizable in
court despite technically implicating NLRA § 7 or § 8, includ-
ing actions under LMRA § 301 for breach of collective bar-
gaining agreements and actions by workers against their
unions for breach of duty. However, both of these recognized
exceptions also implicate separate preemption principles
because they displace state law by federal law.
[1] LMRA § 301 preempts state-law claims that are “sub-
stantially dependent upon analysis of the terms of an agree-
ment made between the parties in a labor contract[.]” Allis-
Chalmers Corp. v. Luack, 471 U.S. 202, 220 (1985). More
3
As the district court observed, among the several types of preemption
commonly found in the labor-law arena, the preemption of state and fed-
eral judicial power to adjudicate claims arguably encompassed by § 7 or
§ 8 of the NLRA is even more “dramatic” than the routine displacement
of state law by federal law through the operation of the Supremacy clause.
Dist. Ct. Op. at 3-4.
ALVAREZ v. MIRELES 5711
specifically, LMRA § 301 will operate to preempt a state-law
claim whose resolution depends upon the meaning of a CBA.
Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 405-
406 (1988) (“If the resolution of a state-law claim depends
upon the meaning of a [CBA], the application of state law . . .
is pre-empted and federal labor-law principles—necessarily
uniform throughout the Nation—must be employed to resolve
the dispute.”) LMRA § 301 extends not only to “claims
founded directly on rights created by collective bargaining
agreements, [but] also [to] claims which are substantially
dependent on analysis of a collective bargaining agreement.”
Hyles v. Mensing, 849 F.2d 1213, 1215-16 (9th Cir. 1988)
(internal citations omitted). This interpretation minimizes the
danger that contract terms “might have different meanings
under state and federal law[,] . . . inevitably exert[ing] a dis-
ruptive influence upon both the negotiation and administra-
tion of collective agreements.” Allis-Chalmers 471 U.S. at
210-11.
[2] The federal statutory duty which unions owe their mem-
bers to represent them fairly also displaces state law that
would impose duties upon unions by virtue of their status as
the workers’ exclusive collective bargaining representative.
State law may “constitute an impermissible obstacle to the
accomplishment of purposes of Congress by regulating con-
duct that federal law has chosen to leave unregulated.” Con-
don v. United Steelworkers of Am., 683 F.2d 590, 594 (1st
Cir. 1982). The doctrine of fair representation serves both as
a limited check on the arbitrary exercise of union power and,
through its limitations, allows unions wide latitude in effec-
tively serving the interests of the bargaining unit. See United
Steel Workers of Am. v. Rawson, 495 U.S. 362, 374 (1990).
To bring a successful state law action, aggrieved workers
must make a showing of additional duties, if they exist,
beyond the normal incidents of the union-employee relation-
ship. Id. Such duties must derive from sources other than the
union’s status as its members’ exclusive collective bargaining
5712 ALVAREZ v. MIRELES
representative, such as an express provision of the collective
bargaining agreement or a collateral contract. Id.In challenging the district court’s holding that their claims
were preempted by federal labor laws,4 Appellants maintain
that because the Union secretly entered into a side-deal with
Lucky, it infringed substantive rights which gave rise to sev-
eral state law claims. We address each claim in turn.
1) BREACH OF CONTRACT CLAIM
[3] The district court held that the breach of contract claim
was preempted as it implicated the statutory duty of fair repre-
sentation. It concluded that Appellants sought to enforce
duties that Appellees owed as union representatives, namely
the duty to represent them in good faith as their exclusive bar-
gaining representative. Appellants’ complaint was indeed that
Appellees breached their promise, as expressed in the Team-
sters International Constitution and in Union by-laws, to rep-
resent them in good faith as their exclusive bargaining
representative. Appellants made no showing of additional
duties beyond the normal incidents of the union-employee
relationship. United Steel Workers, 495 U.S. at 374. They did
not show, for example, an express provision of the CBA or a
collateral contract that imposed additional enforceable duties
upon the Union. Id. Accordingly, we conclude that the district
4
Appellants also argue, relying on Lingle, 486 US at 405-6, that these
claims are not preempted because they can be resolved without interpreta-
tion of the labor contract itself. They assert that the Union breached its
duty of fair representation because those actions were so far outside the
“wide range of reasonableness” generally afforded to a union’s collective
bargaining performance that they are wholly “arbitrary, discriminatory, or
in bad faith.” Air Line Pilots Ass’n Int’l v. O’Neill, 499 U.S. 65, 67 (1991)
(internal quotation omitted). We do not reach this argument because we
conclude that each one of Appellants’ claims is directly preempted
because each implicates the duty of fair representation or is preempted by
statute. Appellants may not escape federal labor law preemption by “art-
fully” pleading their claims, avoiding references to preemptive federal
law. See Hyles v. Mensing, 849 F.2d 1213, 1215 (9th Cir. 1988).
ALVAREZ v. MIRELES 5713
court did not err in finding that the statutory duty of fair repre-
sentation displaces state law that would impose duties upon
unions by virtue of their status as the workers’ exclusive col-
lective bargaining representative. Id.
2) BREACH OF IMPLIED COVENANT OF GOOD
FAITH AND FAIR DEALING CLAIM
[4] Appellants claim that Appellees tortiously breached
their contractual obligation to represent them fairly by failing
to exercise their discretion with complete good faith and hon-
esty. The district court concluded that this claim was in effect
a claim for breach of duty of fair representation, as defined in
Vaca. Accordingly, it found that this claim was also pre-
empted. See Vaca, 386 U.S. at 177. We conclude the district
court did not err in finding preemption because we also con-
clude that this state law claim seeks to enforce duties that
Appellees owe in their capacity as union representatives. Ford
Motor Co.; 345 U.S. at 337; United Steel Workers, 495 U.S.
at 374.
3) NEGLIGENT MISREPRESENTATION CLAIM
[5] Appellants claim that Appellees negligently misrepre-
sented to them that Appellants would be able to follow their
work under the terms of the CBA if the Fullerton warehouse
closed down. The district court held that this claim was also
preempted under LMRA § 301 as a claim involving the duty
of fair representation. It reasoned that Appellees’ alleged fail-
ure to accurately describe the provisions of the CBA did not
violate a general duty of care and that if Appellees breached
any duty at all, it was one grounded in their special status as
union representatives. Id. We also so conclude. Because
Appellants failed to show a separate, independent duty upon
which to base this claim, we conclude that the district court
did not err in its finding of preemption.
5714 ALVAREZ v. MIRELES
4) FRAUD AND DECEIT CLAIM
Appellants’ fraud and deceit cause of action stems from the
same facts as their negligent misrepresentation claim and adds
the charge that the erroneous representations were knowingly
made with an intent to deceive. The district court concluded
that this fraud and deceit claim was preempted by LMRA
§ 301. It reasoned that in order to assess the truthfulness of
the Appellees’ alleged representations concerning the content
of the CBA, the court would have to interpret provisions of
the CBA itself. Appellants argue that LMRA § 301 preemp-
tion should not apply to this or any of their state law claims
because those claims do not depend on the meaning of the
CBA, but rather depend on whether Appellees engaged in
wrongdoing with respect to the negotiation and ratification of
the CBA.
[6] Not every dispute concerning a provision of a collective
bargaining agreement is preempted by LMRA § 301. Allis-
Chalmers, 471 U.S. at 211. Preemption analysis should take
place on a case by case basis. Lingle, 486 U.S. at 405-406. In
this case, however, we conclude that resolution of Appellants’
claim depends upon the meaning of the CBA because the cen-
tral factual allegation relates to whether Appellees represented
falsely the CBA itself, regardless of the negotiation or ratifi-
cation process. Accordingly, we conclude the district court
did not err in its finding of preemption. Atkinson, 370 U.S. at
249. We do not reach the question of whether this claim
would also be preempted by the duty of fair representation.
5) INTENTIONAL INFLICTION OF EMOTIONAL
DISTRESS CLAIM
Appellants’ intentional infliction of emotional distress
claim asserts that Appellees’ alleged betrayal constituted
extreme and outrageous conduct calculated to cause severe
emotional harm. The district court found that this conduct was
inseparable from Appellees’ performance of their role as col-
ALVAREZ v. MIRELES 5715
lective bargaining representatives. The district court noted
that the duty of fair representation “occupies the field” of reg-
ulation affecting how a union must relate to its members in
the process of carrying out its representational functions. It
reasoned that a great risk exists that a federal court’s grant of
relief under a state-law tort claim designed to enforce minimal
standards of decency would regulate the manner in which a
union interacts with its members in the course of performing
its duties as collective bargaining representative in a way
“that federal law has chosen to leave unregulated.” Condon,
683 F.2d at 594 (citing Teamsters v. Morton, 377 U.S. 252,
261 (1964)).
[7] We also conclude that Appellants’ intentional infliction
of emotional distress claim is inextricably linked to Appel-
lee’s performance of duties owed in their capacity as union
representatives. Because the duty of fair representation occu-
pies the field of regulation of union-member relations when
a union carries out its representational functions, we conclude
that the district court did not err in its holding of preemption.
6) RICO CLAIMS
[8] Appellants sought damages based on alleged violations
of 18 U.S.C. §§ 1341 and 1342, for mail and wire fraud, and
a conspiracy to commit the relevant predicate acts. The dis-
trict court held that although these civil RICO causes of action
arise under federal law and are not displaced by federal labor
law, the claims were nonetheless preempted under Garmon.
359 U.S. at 244-5. Under Garmon, state and federal courts are
deprived of the power to grant relief against conduct that is
arguably prohibited by NLRA § 7 or § 8 provisions governing
unfair labor practices, unless redress is sought under one of its
recognized exceptions (e.g. LMRA § 301 or the duty of fair
representation). The district court concluded that because
Appellees’ allegedly fraudulent conduct is arguably an unfair
labor practice—bargaining in bad faith—that a civil RICO
action was an improper vehicle for seeking redress.
5716 ALVAREZ v. MIRELES
Appellants argue that Garmon preemption should not apply
to this or any of the state law claims for the same reason they
argue that LMRA § 301 preemption should not apply:
because those claims do not depend on the meaning of the
CBA. Appellants maintain that their state law claims do not
concern conduct arguably subject to NLRA § 7 or § 8 provi-
sions. We conclude, however, that Appellants’ RICO claims
rest on their allegation that the Union had bargained in bad
faith with Lucky. Because bargaining in bad faith is an unfair
labor practice prohibited by NLRA §§ 7 and 8, and a consis-
tent body of labor law requires that the NLRB has exclusive
jurisdiction to regulate activity that could arguably constitute
unfair labor practices, we defer to the exclusive competence
of the NLRB to adjudicate the matter. Garmon, 359 U.S. at
244-45. Accordingly, the district court did not err in finding
that Appellants’ civil RICO claims were preempted.
III. Evidentiary Ruling
[9] Appellants challenge the district court’s exclusion of
certain evidence regarding an incident involving the burning
of union jackets. After the court granted the motion to exclude
the evidence without prejudice, it made clear the ruling was
tentative and allowed Appellants to make a later request, out-
side the presence of the jury, to include evidence regarding
the incident. The court explained that it would allow Appel-
lants to develop a written offer of proof because it still lacked
specific facts to support a finding that the incident was as sig-
nificant as Appellants claimed. The court added that in the
absence of additional evidence, the incident sounded too
remote and insignificant to allow. Appellants failed to make
the solicited offer of proof. So, while Appellants proffered
evidence in limine, they did not attempt to make an offer of
proof or introduce evidence at trial. The district court did not
have the opportunity to issue a final order.
[10] Rulings on in limine motions are not final appealable
orders under 28 U.S.C. § 1291. See Coursen v. A.H. Robins
ALVAREZ v. MIRELES 5717
Co., Inc., 764 F.2d 1329, 1342 (9th Cir. 1985). Thus, in order
to appeal an issue on which the district court ruled in limine,
a party must first receive a final ruling on the issue. “[W]here
a district court makes a tentative in limine ruling excluding
evidence, the exclusion of that evidence may only be chal-
lenged on appeal if the aggrieved party attempts to offer such
evidence at trial.” Tennison v. Circus Circus Enterprises, Inc.,
244 F.3d 684, 689 (9th Cir. 2001) (quoting Walden v.
Georgia-Pac. Corp., 126 F.3d 506, 518 (3rd Cir. 1997)).
Because Appellants failed to make an offer of proof, they can-
not challenge the exclusion of that evidence on appeal. Id.AFFIRMED.