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;

D.C. No. DAVID GARCIA; DARVEY GUIDRY; 

M CV-98-00979-AHS ARTIN 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
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. 

5702 ALVAREZ v. MIRELES
COUNSEL

Lee A. Wood (argued), Raymond E. Brown, Lee A. Wood &

Associates, P.C., Santa Ana, California, for the plaintiffsappellants. 

Fern M. Steiner (argued), Thomas Tosdal, Tosdal, Smith,

Steiner & Wax, San Diego, California, for the defendantsappellees.

OPINION

B. FLETCHER, Circuit Judge: 

This appeal arises out of a union-negotiated collective bargaining agreement (“CBA”) governing employees of Lucky

Stores, Inc.’s (“Lucky”) general merchandise warehouse.

David Adkins and other former employees at Lucky’s Fullerton, California warehouse (collectively, “Appellants”), all

members of Teamsters Local 952 (“the Union”), appeal the

district court’s judgment, following a partial summary judgment and jury trial, in favor of the Union, Ed Mireles,

secretary-treasurer of the Union, and Harry Ashley, president

of the Union (collectively, “Appellees”). 

ALVAREZ v. MIRELES 5705
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 judgment 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 jurisdiction 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 district 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 jurisdiction of the National Labor Relations Board (“NLRB”). Lastly,

1This claim too is governed by federal law but may be tried in federal

court. See Vaca v. Snipes, 386 U.S. 171, 179 (1967). 

5706 ALVAREZ v. MIRELES
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 evidence 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 teamster 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 protective 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 facility 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 represented to them, contrary to the actual terms of the CBA, that

they could follow their product, and that when Appellants

ALVAREZ v. MIRELES 5707
were terminated from their employment at the Lucky warehouse in Fullerton in September 1998, Mireles refused to pursue 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 substantially less protective of Appellants’ rights than was represented to them. Appellants further maintained that Appellees

were motivated by the Union’s desire to secure Lucky’s prospective cooperation in becoming the labor representative of

a larger number of Lucky’s employees, and by Mireles’s

long-harbored animosity toward Appellants. Appellants contended 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 negotiations 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. Sinclair Refining Co., 370 U.S. 238, 249 (1962). Appellants do

not challenge this portion of the district court’s order. The district court held that the other claims save one were preempted

by federal labor laws and dismissed them with prejudice.

Appellants appeal these rulings. 

2LMRA § 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. 

5708 ALVAREZ v. MIRELES
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 Appellees, finding that they did not breach their duty of fair representation. 

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 nationally 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 evidentiary 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.

ALVAREZ v. MIRELES 5709
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, including actions under LMRA § 301 for breach of collective bargaining 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 “substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract[.]” AllisChalmers Corp. v. Luack, 471 U.S. 202, 220 (1985). More

3As the district court observed, among the several types of preemption

commonly found in the labor-law arena, the preemption of state and federal 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. 

5710 ALVAREZ v. MIRELES
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 disruptive influence upon both the negotiation and administration of collective agreements.” Allis-Chalmers 471 U.S. at

210-11. 

[2] The federal statutory duty which unions owe their members 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 conduct that federal law has chosen to leave unregulated.” Condon 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 effectively 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 relationship. Id. Such duties must derive from sources other than the

union’s status as its members’ exclusive collective bargaining

ALVAREZ v. MIRELES 5711
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 several 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 representation. 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 bargaining representative. Appellants’ complaint was indeed that

Appellees breached their promise, as expressed in the Teamsters International Constitution and in Union by-laws, to represent 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

4Appellants also argue, relying on Lingle, 486 US at 405-6, that these

claims are not preempted because they can be resolved without interpretation 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 “artfully” pleading their claims, avoiding references to preemptive federal

law. See Hyles v. Mensing, 849 F.2d 1213, 1215 (9th Cir. 1988). 

5712 ALVAREZ v. MIRELES
court did not err in finding that the statutory duty of fair representation displaces state law that would impose duties upon

unions by virtue of their status as the workers’ exclusive collective 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 honesty. 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 preempted. See Vaca, 386 U.S. at 177. We conclude the district

court did not err in finding preemption because we also conclude 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 misrepresented 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 failure 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. 

ALVAREZ v. MIRELES 5713
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 preemption 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. AllisChalmers, 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 central factual allegation relates to whether Appellees represented

falsely the CBA itself, regardless of the negotiation or ratification 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 col5714 ALVAREZ v. MIRELES
lective bargaining representatives. The district court noted

that the duty of fair representation “occupies the field” of regulation 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 Appellee’s performance of duties owed in their capacity as union

representatives. Because the duty of fair representation occupies 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 district 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. 

ALVAREZ v. MIRELES 5715
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 provisions. 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 consistent 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, outside the presence of the jury, to include evidence regarding

the incident. The court explained that it would allow Appellants to develop a written offer of proof because it still lacked

specific facts to support a finding that the incident was as significant 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

5716 ALVAREZ v. MIRELES
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 challenged 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 cannot challenge the exclusion of that evidence on appeal. Id.

AFFIRMED.

ALVAREZ v. MIRELES 5717