Red Wing Products v. Burris

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 10, 1996
• Docket: 96-5010
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS Filed 7/10/96 FOR THE TENTH CIRCUIT ______

RED WING PRODUCTS, INC.; KEY ) TEMPORARY PERSONNEL, INC., ) ) Plaintiffs-Appellants, ) ) v. ) No. 96-5010 ) (D.C. No. 95-C-295-K) LEANN BURRIS, ) (N. Dist. Okla.) ) Defendant-Appellee. )

______

ORDER AND JUDGMENT*

Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.

After examining the briefs and the appellate record, this

panel has determined unanimously to honor the parties’ request for

a decision on the briefs without oral argument. See Fed. R. App.

P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered

submitted without oral argument.

Red Wing Products, Inc. and Key Temporary Personnel, Inc.

* This Order and Judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of Tenth Cir. R. 36.3. (appellants) appeal from the district court’s sua sponte order

granting summary judgment in favor of Leann Burris (Burris).

On March 29, 1995, appellants filed this declaratory judgment

action seeking a declaration that Burris’ activities arguably fell

within the scope of the National Labor Relations Act (NLRA); hence,

her state law wrongful discharge claim was preempted by the NLRA.

In addition, appellants sought a declaration that (a) application

of Oklahoma law to Burris’ claim violated the Supremacy Clause of

the United States Constitution, (b) the state district court was

without subject-matter jurisdiction, and (c) the National Labor

Relations Board (NLRB) had exclusive jurisdiction over Burris’

wrongful discharge claim.

Upon its own motion, the district court granted summary

judgment in favor of Burris, concluding that her claim was not

preempted by the NLRA and should properly remain in state court.

On appeal, appellants contend that: (1) the district court

erred in denying its motion for summary judgment; (2) the district

court erred in granting summary judgment in favor of Burris

pursuant to the court’s sua sponte motion; (3) Burris’ conduct

could arguably be characterized as “concerted activity” within the

scope of the NLRA; (4) once the district court recognized that

Burris’ conduct could arguably be characterized as “concerted

activity” within the scope of the NLRA, it lacked jurisdiction to

make a final determination as to whether certain conduct qualified

- 2 - as “concerted activity” under the NLRA.

We review the district court’s grant or denial of summary

judgment de novo, applying the same legal standard used by the

district court. Lancaster v. Air Line Pilots Ass’n Int’l, 76 F.3d

1509, 1516 (10th Cir. 1996).

After careful consideration, we affirm on the basis of the

well-reasoned opinion of the district court in its November 30,

1995, Order. See also Peabody Galion v. Dollar, 666 F.2d 1309,

1313-1319 (10th Cir. 1981) (no NLRA preemption).

AFFIRMED.

Entered for the Court:

James E. Barrett, Senior United States Circuit Judge