author: ELLEN B. BURNS, District Judge.

text:
    UNITED STATES of America and Revenue Agent Dennis Thompson v. R. William BOHONNON.
    Misc. Civ. No. N-85-5.
    United States District Court, D. Connecticut.
    April 16, 1985.

      Frank H. Santoro, Asst. U.S. Atty., New Haven, Conn., for plaintiffs.
    Nathan M. Silverstein, Silverstein & Osach, P.C., V. James Ferraro, New Haven, Conn., for defendant.
   RULING ON PETITION TO ENFORCE SUMMONS

ELLEN B. BURNS, District Judge.

The Internal Revenue Service (I.R.S.), through Revenue Agent Dennis Thompson, seeks from Attorney R. William Bohonnon a list of the names and taxpayer identification numbers of all taxpayers for whom Mr. Bohonnon prepared a tax return for the periods ending January 1, 1981, through November 23,1983, or in the alternative, copies of all Subchapter S corporate tax returns that respondent prepared for the same period. Attorney Bohonnon was served with an I.R.S. civil summons on November 23, 1983, summoning such a list and/or returns. Respondent did not comply with the summons.

On January 31, 1985, the I.R.S. filed the instant petition to enforce the summons, pursuant to 26 U.S.C. §§ 7402(a), 7402(b) and 7604(a). As an alternative basis for seeking the lists, the I.R.S. is moving to compel respondent to comply with 26 U.S.C. § 6107(b)(2), which requires income tax return preparers to retain the lists and/or return copies in question and “make such copy or list available for inspection upon request by the Secretary.” Respondent opposes the I.R.S.’ petition, arguing (1) that the I.R.S. has not proven he is an “income tax return preparer”, as defined by 26 U.S.C. § 7701(a)(36); (2) that his Fifth Amendment privilege against self-incrimination precludes his having to produce the information at issue; (3) that the attorney-client privilege also protects such disclosure and (4) that the information sought is already within the possession of the I.R.S. For the reasons stated below, the court grants the I.R.S.’ petition to enforce the summons, and orders respondent to provide the lists or copies of returns as requested, at a time and place to be designated by Revenue Agent Thompson.

A. Income Tax Return Preparer

Section 7701(a)(36), in relevant part, defines an income tax return preparer as one who prepares for compensation an income tax return, (emphasis added). The government has submitted three Form 1120S Small Business Corporation income tax returns (Govt.Exh. # 1, 2, 3) with what purports to be the signature of “R. William Bohonnon” in the space designated for the “Paid Preparer’s Use Only”. The I.R.S. also submits one other Form 1120S return similarly signed and copies of bills and cancelled checks sent to clients for the preparation of franchise tax reports (Govt. Exh. # 1 attached to memorandum in support of petition, 4/4/85).

The court concludes that the I.R.S. has submitted sufficient proof of respondent's status as a paid preparer, especially in light of the fact that respondent has not denied this status, by affidavit or otherwise, but merely claims the government’s evidence is insufficient. The fact that respondent has signed his name in that space reserved for paid preparers on a number of income tax returns is significant. Pursuant to 26 U.S.C. § 6064, an individual’s name signed to a return, statement or other document is prima facie evidence that the document was actually signed by him. From the face of the three Form 1120S returns, it is clear that the signature on Govt.Exh. # 1 differs from those on # s 2 and 3, and therefore, the prima facie case may be rebutted as to that first exhibit, by the obvious irregularity. The signatures on the second and third exhibits match each other, however, and match that on the Form 1120S return filed with the I.R.S.’ memorandum. The franchise tax materials are irrelevant because §§ 6107 and 7701 do not apply to franchise taxes.

In sum, the court finds that respondent has personally signed at least four Form 1120S returns in the space reserved for paid preparers and thus, in the absence of evidence to the contrary, the government has shown respondent to be a compensated income tax return preparer, required to keep the subject lists pursuant to § 6107.

B. Fifth Amendment Privilege

If the records sought in this case are “required records,” the person who is required to keep them by law “has no Fifth Amendment protection against self-incrimination when these records are directed to be produced.” In re Dr. John Doe, 711 F.2d 1187, 1191 (2d Cir.1983). There is a three-pronged test to determine whether the records do fall within the exception:

(1) the requirement that they be kept must be essentially regulatory, (2) the records must be of a kind which the regulated party has customarily kept, and (3) the records themselves must have assumed ‘public aspects’ which render them analogous to public documents.

Id. The court finds that the instant records do qualify as required records and thus, the information sought must be disclosed even if it would be incriminating.

The respondent has primarily questioned whether it is truly a neutral, regulatory scheme that forms the basis of the requirement that the records be kept. The court agrees with the I.R.S. that United States v. Lubus, 370 F.Supp. 695 (D.Conn.1974), is no longer persuasive authority in light of the 1977 enactment of § 6107, which is directed to all tax return preparers, both commercial and professional. A key element of Judge Newman’s analysis in Lubus was that the “Tax Return Preparer Project” then in effect was “permeat[ed] ... with [an] investigative and prosecutorial purpose” because it was directed to only a small percentage of all persons who offer services to the public for preparing tax returns. 370 F.Supp. at 699, 700. Even if respondent is correct that persons who use or promote the use of tax shelters have become a targeted group “inherently suspect of criminal activity,” that is not a relevant consideration. Rather, it is whether the requirement that lists of clients be kept by all compensated tax return preparers is part of a regulatory scheme with a legitimate regulatory purpose. See H.Rep. No. 94-658, 94th Cong., 2d sess. 274, reprinted in 1976 U.S.Code Cong. & Ad.News 2897, 3169. The court finds that it is.

It cannot be seriously disputed that copies of returns prepared by a professional return preparer are customarily kept by that professional. The public aspect requirement is also satisfied by the requirement that income tax forms must be filed with the I.R.S. Accordingly, the court finds that the documents sought by the I.R.S. are required records, and thus not privileged by the Fifth Amendment.

C. Attorney-Client Privilege

As an alternative basis for asserting that the records are privileged, respondent claims that the names of his clients and the copies of the returns are protected by the attorney-client privilege. The court finds that neither the lists or the copies of the returns are so protected. The identity or the fact of being a client is not privileged information, absent special circumstances that are not present here. Colton v. United States, 306 F.2d 633, 637 (2d Cir.1962). Moreover, information transmitted to an attorney with the intention that it be included in the tax return is not covered by the privilege. Id. at 638. Only the underlying papers or legal advice would be protected but such has not been summoned.

D. Possession

In the case of United States v. Powell, 379 U.S. 48, 85 S.Ct. 248, 13 L.Ed.2d 112 (1964), the Supreme Court established the standards for enforcing an I.R.S. civil summons. Id. at 57-58, 85 S.Ct. at 254-255. Respondent has challenged only whether the data sought is already in the government’s possession.

Respondent is of course correct that the I.R.S. does possess the original returns that were filed somewhere among its millions of returns. However, they are not readily accessible to Agent Thompson without the list of names at issue. Clearly, then, neither the names or the returns are within the possession of the I.R.S. in any meaningful sense.

Accordingly, the court finds that the I.R.S. has met the Powell test and that none of the summoned materials are protected by either the attorney-client privilege or the respondent’s Fifth Amendment privilege against self-incrimination. The summons is enforced, and respondent shall provide the information at a date and time established by Revenue Agent Thompson.

SO ORDERED.

      . Of course, a civil summons may not be used for the purpose of conducting an investigation solely criminal in nature. United States v. LaSalle National Bank, 437 U.S. 298, 98 S.Ct. 2357, 57 L.Ed.2d 221 (1978). Respondent has not made such a claim, however.

      . Because the court concludes the records do fit within the required records exception, the court need not address the government’s alternative reasons why these records are not protected by the Fifth Amendment.


source: Caselaw Access Project

author: PANNER, Chief Judge.

license: Public Domain

text:
    Myron HARPER and Jane Harper, husband and wife, Plaintiffs, v. The FARM CREDIT ADMINISTRATION; Donald J. Wilkinson; the Federal Intermediate Credit Bank of Spokane, Washington; Kenneth P. Krueger; Thomas E. Brown; Jerald Wharton; and Willamette Production Credit Association in Liquidation, Defendants.
    Civ. No. 85-291-PA.
    United States District Court, D. Oregon.
    June 4, 1985.
    Clifford N. Carlsen, Jr., R. Alan Wight, Richard A. Edwards, Miller, Nash, Wiener, Hager & Carlsen, Portland, Or., for defendants Federal Intermediate Credit Bank, Kenneth P. Krueger, Thomas E. Brown, Jerald Wharton, and Willamette Production Credit Assn.
    Charles H. Turner, U.S. Atty., Jack C. Collins, Asst. U.S. Atty., Portland, Or., Richard K. Willard, Acting Asst. Atty. Gen., Sandra M. Schraibman, Stanley Dalton Wright, Wendy B. Kloner, U.S. Dept, of Justice, Civ. Div., Washington, D.C., for defendants Farm Credit Admin, and Donald J. Wilkinson.
    Henry A. Carey, Henry A. Carey, P.C., Portland, Or., William D. Brandt, Ferder, Ogdahl & Brandt, Salem, Or., for plaintiffs.
   OPINION

PANNER, Chief Judge.

Two related cases have previously been before me. VanLeeuwen, et al. v. The Farm Credit Administration, et al., Civil No. 83-1413-PA, was an action brought by five shareholders and former directors of the Willamette Production Credit Association (WPCA) alleging that the FCA conducted an improper audit. I granted a preliminary injunction declaring this audit null and void and restoring the WPCA to its prior status. See VanLeeuwen, 577 F.Supp. 264 (D.Or.1983). On May 15, 1984 I dismissed that action with prejudice, based on a Stipulated Agreement (Agreement) filed with the court and signed by all parties. On December 12, 1984 I reopened the case for a determination of whether the Agreement had been violated. On December 28, 1984 I found the Agreement had not been violated and reinstated the dismissal with prejudice. See VanLeeuwen v. Farm Credit Administration, 600 F.Supp. 1161 (D.Or.1984); 600 F.Supp. 1173 (D.Or.1984).

I dismissed Coleman, et al. v. Federal Intermediate Credit Bank of Spokane, et al., Civil No. 84-6251E-PA, slip op. (D.Or. Dec. 12, 1984) because it was barred by res judicata.

This is an action against The Farm Credit Administration (FCA); its governor, Donald J. Wilkinson; The Federal Intermediate Bank of Spokane (FICB); its president, Kenneth P. Krueger; a FICB senior vice president, Rod R. Olson; and Jerald Wharton, an officer of the FICB and liquidating agent of the Willamette Production Credit Association in Liquidation.

Plaintiffs Myron and Jane Harper own and operate a farm near Salem, Oregon. They have financed their farm operations through loans from the WPCA since 1973. They began having financial difficulties in 1981. On May 17,1984 the WPCA rejected a loan renewal request made by the Harpers. The loan committee stated that, unless a satisfactory liquidation plan could be agreed upon, collection should begin. The WPCA was not in liquidation when that recommendation was made. A foreclosure action was filed by the WPCA against the Harpers in. Oregon State Court in October, 1984 (after liquidation of the WPCA began).

Plaintiffs ask that defendants be enjoined from proceeding with the liquidation of the WPCA or other Production Credit Associations (PCAs) or foreclosing on mortgages or loans until this court is satisfied that proper regulations governing liquidation of PCAs have been promulgated pursuant to 12 U.S.C. §§ 2183 and 2252(b). They ask that the state court foreclosure proceeding against them be enjoined and request a declaratory judgment that the liquidations of the WPCA and other PCAs are unlawful. Plaintiffs assert that the defendants have failed to adopt proper final regulations governing the liquidation of PCAs and that this alleged failure is violative of the Administrative Procedure Act, 5 U.S.C. § 701 et seq. Federal Defendants have issued proposed regulations concerning liquidation. See 50 Fed.Reg. 6000 (1985). I assume for the purposes of this decision that the proposed regulations are inadequate. Plaintiffs also move for certification of a nationwide class action. All defendants have moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6).

For the reasons stated below, I find that plaintiffs have failed to state a claim for which relief can be granted. I DENY plaintiffs’ motion for a preliminary injunction and GRANT the defendants’ motions to dismiss. Plaintiffs’ Motion For National Class Certification is therefore moot.

BACKGROUND

The FCA is an independent executive agency comprised of the FCA Board, the Governor, and other personnel. 12 U.S.C. § 2241. The FCA is mandated to charter, supervise, examine, and regulate the banks and associations that comprise the Farm Credit System (System). The System is divided into twelve Farm Credit Districts, each of which contains a federal land bank, a federal intermediate credit bank, a bank for cooperatives, and varying numbers of local federal land bank associations, local banks for cooperatives, and PCAs. The Association is one of thirty PCAs in the Twelfth Farm Credit District. Those PCAs obtain funds from the FICB to finance operating and capital credit needs of eligible borrowers. The System banks and associations are owned by borrower-members and operated on a cooperative basis. Their function is to serve the credit needs of farmers, ranchers, and aquatic producers and harvesters.

STANDARDS

I. Preliminary Injunction

The traditional equitable criteria for granting injunctive relief are:

1. a strong likelihood of success on the merits;
2. the possibility of irreparable injury to the plaintiff if the preliminary relief is not granted;
3. a balance of hardships favoring the plaintiff; and
4. in certain cases, advancement of the public interest.

Los Angeles Memorial Coliseum Commission v. National Football League, 634 F.2d 1197, 1200 (9th Cir.1980).

In this circuit, the movant meets its burden by demonstrating either (1) a combination of probable success on the merits and the possibility of irreparable injury or (2) that serious questions are raised and the balance of hardships tips sharply in its favor. Id. at 1201. These are not separate tests, but the outer reaches of “a single continuum.” Benda v. Grand Lodge of Intern’l Association of Machinists, 584 F.2d 308, 315 (9th Cir.1978), cert. dismissed, 441 U.S. 937, 99 S.Ct. 2065, 60 L.Ed.2d 667 (1979).

II. Motion to Dismiss

A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The complaint must be read in the light most favorable to the plaintiff. Russell v. Landrieu, 621 F.2d 1037, 1039 (9th Cir.1980).

DISCUSSION

I. Standing

Article III of the Constitution requires that the federal courts only adjudicate “cases” and “controversies.” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). Standing is one aspect of this “case” or “controversy” requirement. See Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984).

To meet the constitutional requirement of standing a plaintiff must allege “personal injury fairly traceable to the. defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen, 104 S.Ct. at 3325. Determining whether plaintiffs have standing in a particular case requires examination of the allegations to ascertain whether a particular plaintiff is entitled to an adjudication of the particular claims asserted. Id. Defendants assert that plaintiffs lack standing to bring the present action.

A. Personal Injury

The personal injury plaintiffs allege is the foreclosure of the mortgage on their farm. This is the type of personal injury plaintiffs are required to allege to meet the first prong of the standing requirement. See Allen, 104 S.Ct. at 3315.

B. Fairly Traceable to Defendants’ Alleged Conduct

Plaintiffs assert that the lack of proper regulations governing liquidation of PCAs is the cause of the foreclosure action. Defendants argue that the WPCA Board of Directors had already recommended collection on the Harpers’ loan around the time that the WPCA was placed in voluntary liquidation and that the foreclosure on the Harpers’ property would have occurred regardless of the liquidation. Defendants reason that any purported lack of regulations could not have caused injury to plaintiff. Plaintiffs assert that the “collection” recommended by the WPCA is different than foreclosure and that the foreclosure was not instituted until after the liquidation of the WPCA was begun. Plaintiffs argue that the liquidation, without proper guidelines, creates a rigid relationship between the Association and the borrower where foreclosure is seen as the only remedy for “problem” loans. They assert that this relationship, caused by a lack of proper liquidation regulations, is the cause of their injury.

In Allen, parents of black public school children alleged that the Internal Revenue Service (IRS) had not adopted sufficient standards and procedures to fulfill its obligation to deny tax-exempt status to racially discriminatory private schools. One of the ways in which the parents alleged they were injured was by the diminished ability of their children to receive an education in a racially integrated school. The Court noted that such an injury was certainly cognizable, but found that the parents lacked standing because the alleged injury was not fairly traceable to the conduct which they alleged was unlawful. Allen, 104 S.Ct. at 3328.

In Allen, the plaintiffs would have had to show there were enough racially discriminatory private schools receiving tax exemptions in their communities for withdrawal of those exemptions to affect public school integration. The Court found this would be impossible because whether withdrawal of a tax exemption from any school would change the school’s policies, whether the parents of a child attending such school would transfer the child to a public school because of the changed IRS policy, and whether there would be enough parents and schools changing their practices as a result of IRS changes to affect the plaintiffs was entirely speculative.

In the present case, plaintiffs are necessarily required to engage in similar speculations. They cannot define what proper regulations would be. Whether proper regulations governing liquidation would have changed defendants’ decision to foreclose on plaintiffs’ loan is entirely speculative. Plaintiffs cannot show that this lack of regulations caused the WPCA to file a foreclosure action against them. The chain of causation is too weak and too speculative to confer standing on these plaintiffs.

C. Redressibility

The third element of standing is that the plaintiffs’ injury is likely to be redressed by a favorable decision. Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976). In Simon plaintiffs alleged that the Internal Revenue Service (IRS) violated the Internal Revenue Code and the Administrative Procedure Act by issuing a Revenue Ruling allowing favorable tax treatment to a nonprofit hospital that offered only emergency-room services to indigents. The Court concluded that plaintiffs lacked standing to bring the action because the plaintiffs could not prove that their alleged injury (denial of hospital services) was caused by the IRS’s actions and because it was speculative whether a decision favorable to the plaintiffs would result in the correction of the alleged wrong by making more hospital services available to the plaintiffs. Id. at 42-43, 96 S.Ct. at 1926.

In Simon, 426 U.S. at 43, 96 S.Ct. at 1926, the Court noted that plaintiffs’ complaint could support an inference that some hospitals would admit indigents if the IRS Ruling were different. However, the Court stated that this inference was speculative and found that plaintiffs had not met the redressibility requirement of standing.

Here, plaintiffs’ assertions that their foreclosure injury would be redressed by adoption of proper regulations is, as in Simon, speculative at best. The Harpers first obtained a loan from WPCA in 1973. They began having financial difficulties about 1981. On May 17, 1984 the WPCA Board of Directors rejected the Harpers’ request for a loan renewal stating that the Association should begin collection unless a satisfactory liquidation plan could be agreed upon. The foreclosure action was filed in the fall of 1984. The Harpers cannot make a showing beyond mere speculation that the issuance of appropriate regulations by the defendants would prevent foreclosure. Because they lack standing, plaintiffs have not shown the possibility of success required for the issuance of a preliminary injunction. There is no set of facts upon which relief could be granted. I need not address any of the other grounds for dismissal raised by defendants. Plaintiffs’ motion for a preliminary injunction is DENIED and defendants’ motions to dismiss are GRANTED.


author: SAFFELS, District Judge.

text:
    John L. SUTTON, Plaintiff, v. SOUTHWEST FOREST INDUSTRIES, INC., Defendant.
    Civ. A. No. 83-2263-S.
    United States District Court, D. Kansas.
    July 18, 1985.
    David W. Hauber, Kenneth J. Reilly, Boddington & Brown, Kansas City, Kan., Elinor P. Schroeder, University of Kansas School of Law, Lawrence, Kan., for plaintiff.
    Glenn I. Carbaugh, House, Norton & Mattix, Overland Park, Kan., C. Michael Mattix, Charles House, House, Norton & Mattix, Kansas City, Mo., Douglas C. Beach, Overland Park, Kan., William R. McKibbon, Jr., Haynswoth, Baldwin, Miles, Johnson, Greaves & Edwards, P.A., Green-ville, S.C., for defendant.
   MEMORANDUM AND ORDER

SAFFELS, District Judge.

This matter is before the court on defendant’s motion for summary judgment. The court has determined that oral argument would not be of material assistance. Rule 15(d), Rules of Practice of the United States District Court for the District of Kansas.

This case arises out of plaintiffs termination as an employee of the defendant. Plaintiff alleges he was fired in contravention of the public policy of the state of Kansas in that he was discharged in retaliation for filing a workmen’s compensation claim. Defendant denies that plaintiff was fired for such reason. In this summary judgment motion, defendant contends that this is an action which is pre-empted by the National Labor Relations Act [hereinafter N.L.R.A.], 29 U.S.C. 151, et seq.

Plaintiff initially brought this action in the District Court of Wyandotte County, Kansas. Defendant removed this action pursuant to 28 U.S.C. 1441, and this court has diversity of citizenship jurisdiction pursuant to 28 U.S.C. 1332. The parties do not contest venue or jurisdiction.

The material uncontroverted facts are not disputed. Plaintiff became employed with defendant on or about September 20, 1978. He was terminated from his employment on or about July 9, 1982. Plaintiff contends his discharge was wrongful in that it was in retaliation for filing a workmen’s compensation claim against defendant. At the time plaintiff became employed with defendant, plaintiff voluntarily became a member of the United Paper-workers International Union, AFL/CIO, CLC Local No. 765. Subsequently, plaintiff voluntarily withdrew his membership in the union approximately one year after the date of his original employment with defendant, as he no longer wished to have union dues deducted from his payroll check. From the date of plaintiffs employment until the date of plaintiff’s termination, a collective bargaining agreement was in full force and effect, covering all employees of defendant at the Kansas City, Kansas, facility, whether union members or not. That collective bargaining agreement provided a grievance and arbitration procedure for handling the discharge of employees. Following plaintiff’s termination, he never filed a grievance pursuant to the collective bargaining agreement, but rather brought this action claiming retaliatory discharge under the state laws of Kansas. The defendant corporation is located in Kansas City, Wyandotte County, Kansas, and is engaged in interstate commerce.

As a general rule, the N.L.R.A. pre-empts state law in matters touching on labor management relations. Thus, an aggrieved employee must attempt to use the contract grievance procedure agreed upon by the employer and the union as the normal mode of redress. Viestenz v. Fleming Companies, Inc., 681 F.2d 699, 701-02 (10th Cir.1982). Thus, where a person is discharged because of union activities this discharge violates federal public interests and it is also an unfair labor practice in violation of Section 8(a) of the N.L.R.A., 29 U.S.C. 158(a). Dayton Tire & Rubber Co. v. N.L.R.B., 591 F.2d 566 (10th Cir.1979). In such matters, federal labor law preempts state law and the N.L.R.A. jurisdiction is exclusive. Viestenz, supra, 681 F.2d at 701-02. Kansas state courts have recognized that state law is pre-empted by the N.L.R.A. from regulation of labor-management disputes in most cases. Anco Construction Co. v. Freeman, 236 Kan. 626, 628, 693 P.2d 1183, 1185 (1985).

The pre-emption doctrine is premised on Congress’ desire to avoid conflicting rules of substantive law and remedy, and thereby insures a consistent national labor policy. San Diego Building Trades Council v. Garmon, 359 U.S. 236, 242, 79 S.Ct. 773, 778, 3 L.Ed.2d 775 (1959); Viestenz, supra, 681 F.2d at 702. However, the N.L.R.A. does not pre-empt all tort actions touching on the relationship between labor and management. In Farmer v. United Brotherhood of Carpenters & Joiners, 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338 (1977), the court held that the N.L.R.A. does not pre-empt a tort action for an intentional infliction of emotional distress under California law. There, the court recognized that the State “has a substantial interest in protecting its citizens from the kind of abuse of which [the plaintiff] complained.” Id. at 302, 97 S.Ct. at 1064. Even though the allegations stating a cause for outrage would also make out an unfair labor practice under the N.L.R.A., the United States Supreme Court held that the plaintiffs action was not preempted. It is the duty of the court to balance the legitimate and substantial interests of the State in protecting its citizens against the potential for interference with a federal scheme of regulation. Id. at 304, 97 S.Ct. at 1065.

In the recent case of Garibaldi v. Lucky Food Stores, Inc., 726 F.2d 1367 (9th Cir.1984), the court allowed a wrongful termination cause of action rather than finding the action preempted. In Garibaldi, the plaintiff contended that he was discharged because he reported a shipment of adulterated milk to health officials after a supervisor ordered him to deliver it. The defendant admitted in its answer that the milk was condemned by the health authorities. Sale or delivery of adulterated milk was prohibited by California law. Thus, the plaintiff was allegedly whistle-blowing to protect the health and safety of the citizens of the state of California, which is exactly the type of conduct that the California Supreme Court had earlier determined was protected under the state’s public policy. Id. at 1374.

The court in Garibaldi held the State’s interest in providing a cause of action for violation of public policy is the enforcement of a policy and not the regulation of the employment relationship. Id. There was no significant threat to the collective bargaining process because the state policy does not alter the economic relationship between the employer and the employee. The court noted that the wrongful discharge remedy here is an action in tort and is distinct from any contractual remedy an employee might have under the collective bargaining contract. Most notably the action for retaliatory discharge furthers the State interests in protecting the general public — an interest which transends the employment relationship. Id. at 1375.

Kansas courts recognize a legitimate and substantial interest in protecting employees from termination for filing workmen’s compensation claims. Murphy v. City of Topeka, 6 Kan.App.2d 488, 630 P.2d 186 (1981). The Workmen’s Compensation Act is designed for the protection of employees and promotes the welfare of Kansas employees. It is the exclusive remedy for injured employees, regardless of the nature of the employer’s negligence. “To allow an employer to coerce employees in the free exercise of their rights under the act would substantially subvert the purpose of the act.” Id. 6 Kan.App.2d at 496, 630 P.2d at 192.

Relying on an Oklahoma statutory provision embodying a state policy similar to that set forth by the Kansas Court of Appeals in Murphy, the Tenth Circuit Court of Appeals, in Peabody Galion v. Dollar, 666 F.2d 1309 (10th Cir.1981), held that an action was not pre-empted by the N.L.R.A. In relevant part, the court stated:

The conduct at issue in this case — discharge of workers because they pursued workers’ compensation claims — is not subject to either protection or prohibition by the National Labor Relations Act becasue it has nothing whatsoever to do with union organization or collective bargaining. See 29 U.S.C. 157-58. Likewise the underlying activity that provoked the conduct complained of — that is, the filing of workmen’s compensation claims under state law — has no tendency to conflict with the National Labor Relations Act or any federal labor law.

Id. at 1316.

There are two correctly decided Kansas state court cases which must be distinguished. In Anco Construction Co., supra, the employee was discharged for protesting wages. There, the Kansas Supreme Court recognized that there is no state law exception to the employment-at-will doctrine for protesting wages. On the other hand, the federal law makes it an unfair labor practice to retaliate against someone for protesting wages. Thus, the duties imposed on Anco were federal duties and the N.L.R.A. pre-empted state law actions for retaliatory discharge.

In Collins v. MBPXL Corp., 9 Kan.App.2d 363, 679 P.2d 746 (1984), the plaintiff was injured (not in a job related injury) and had to miss work for almost a year. Despite the fact that the collective bargaining agreement specified that an injured employee’s seniority would be protected for just six months unless he was granted an extension through mutual agreement, the employer’s personnel director allegedly assured him his job would be secure as long as he had to be away from work. Despite this, the plaintiff was terminated before he could return to work. The Kansas Court of Appeals correctly held that the cause of action was pre-empted by federal law. In Collins the plaintiff essentially alleged that he was terminated in violation of the collective bargaining agreement. Id. at 369, 679 P.2d 746. There was no violation of a substantial state public policy of a nature similar to that in the case at bar and consequently pre-emption was required.

The court’s review of the above-cited cases leaves this court with a firm conviction that plaintiff’s state law cause of action for retaliatory discharge for filing workmen’s compensation claims is not preempted by the N.L.R.A.

Also before the court is plaintiff’s motion to add additional exhibits, to which no memorandum in opposition has been filed.

IT IS BY THE COURT THEREFORE ORDERED that defendant’s motion for summary judgment is hereby denied. IT IS FURTHER ORDERED that defendant’s motion to strike plaintiff’s responsive brief is hereby denied, and the clerk is directed to file the additional brief submitted by defendant.

IT IS FURTHER ORDERED that plaintiff’s motion to add additional exhibits is hereby granted.

      . Subsequent to the completion of briefing in accordance with Rule 15, plaintiff, without leave of court, filed an additional responsive brief and defendant filed a motion to strike plaintiff’s additional brief or, in the alternative to allow defendant to file an additional brief. The court has reviewed the additional briefs of both parties. Though they add little to the analysis of these issues, the court will allow such filings. In the future, however, counsel should adhere to the requirements of the Rules of Practice.