Opinion
No. CV-03-0091633S
November 3, 2006
MEMORANDUM OF DECISION
This is a wrongful discharge action brought by the plaintiff, Melinda Hobson, against her employer, Mark Facey Company. The defendant moves to dismiss the action. Specifically, the defendant argues that the plaintiff's action is preempted by the National Labor Relations Act and that the National Labor Relations Board has exclusive jurisdiction over the claims raised in the plaintiff's complaint. Because the Court concludes that the activity alleged in the plaintiff's complaint is "arguably subject to" the protections found in § 7 of the National Labor Relations Act ("NLRA"), this action is preempted, and the motion to dismiss is granted.
A. STANDARD
"Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings belong . . . [O]nce the question of lack of jurisdiction is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) Esposito v. Specyalski, 268 Conn. 336, 348, 844 A.2d 211 (2004). "A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). "When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . [A] court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Id.
B. FACTS
In her October 22, 2003 complaint, the plaintiff, Melinda L. Hobson, alleges the following facts. From October 1993 through October 15, 1997, the defendant, Mark Facey Company, employed the plaintiff as a telemarketer in the defendant's Bristol, Connecticut facility. The plaintiff is not part of a union or a collective bargaining unit, and there are no allegations that any of the defendant's employees have formed, or are in the process of forming, a union.
The plaintiff was generally considered a good employee and on several occasions, the defendant sent the plaintiff to its Scranton, Pennsylvania facility to train other telemarketers. During the fall of 1997, the defendant experienced employee morale problems in its Bristol facility. As a result, the company formed a "morale committee" to provide a vehicle for employees to communicate employment issues and concerns to management, thereby improving employee morale. The defendant selected and appointed the plaintiff to the morale committee.
A supervisor told the plaintiff that as a member of the committee, it was the plaintiff's responsibility to be aware of her co-worker's employment issues and concerns and communicate them to management. As a result, the plaintiff sought out and received employment-related comments, suggestions and complaints from other telemarketing employees and relayed them, as instructed, to the defendant's management.
During the course of 1997, the plaintiff concluded that she was being passed over for various promotions and other job opportunities. As a result, the plaintiff requested a meeting with the defendant's personnel manager in order to: (1) inquire as to why she had been passed over for promotions and job opportunities, and (2) communicate various employment issues and concerns that her co-workers had addressed to her as a member of the morale committee. At the conclusion of the meeting, the personnel manager indicated that she would respond to the plaintiff regarding the issues that she had raised.
After a few weeks without a response, the plaintiff requested another meeting with the personnel manager. During this second meeting, the plaintiff, in her capacity as a member of the morale committee, informed the personnel manager that a group of the defendant's telemarketing employees were upset about certain employment issues and wished to meet with the owner of the company to discuss their concerns. Within an hour after the conclusion of this meeting, the plaintiff's employment was terminated.
The personnel manager informed the plaintiff that the owner had decided to terminate her employment because: (1) the owner of the company had been told that the plaintiff was unhappy working for the defendant, and (2) the plaintiff's name was being mentioned too often in conjunction with other employees' issues and/or concerns relating to their employment. The personnel manager also stated that the owner had instructed her not to "waste any more time" on the plaintiff, that the plaintiff "always wanted to meet with someone to discuss something," and that management had too much to do and could not waste time meeting with the plaintiff to discuss problems.
Subsequently, during a telephone conversation with the plaintiff, the owner threatened to contest the plaintiff's application for unemployment compensation and give the plaintiff unfavorable references if she sued the defendant. The plaintiff subsequently brought this suit against the defendant asserting breach of contract and promissory estoppel theories.
It is unclear from her complaint whether the plaintiff alleges the existence of a written employment contract or an implied contract.
C. ANALYSIS
The defendant now moves to dismiss the plaintiff's complaint, arguing that this court lacks subject matter jurisdiction because the plaintiff's complaint alleges unfair labor practices by a company engaged in interstate commerce, and consequently, the action is subject to the exclusive jurisdiction of the National Labor Relations Board (NLRB) under the Garmon preemption doctrine as set forth in San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). Specifically, the defendant argues that this court lacks subject matter jurisdiction because the allegations contained in the plaintiff's complaint are arguably within the scope of § 7 or § 8 of the NLRA, and as a result, the NLRB retains exclusive jurisdiction. The plaintiff appears to contend that Garmon preemption does not apply in this case because the plaintiff's conduct was not a protected activity under the NLRA, the allegations in the plaintiff's complaint are merely peripheral to the enforcement of the NLRA, and that her state court action, as a result, is not preempted by the NLRA.
In paragraphs three and six of her complaint, the plaintiff alleges that the defendant is a telemarketing company and that the plaintiff has worked at both the defendant's Scranton, Pennsylvania and Bristol, Connecticut facilities. The plaintiff does not dispute that the defendant employs over 1000 employees, has customers throughout the United States and the world, and therefore, that the defendant is a corporation involved in interstate commerce.
Section 7 provides: "Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a)(3) of this title." (Emphasis added.) CT Page 20409 29 U.S.C. § 157.
Section 8 provides in relevant part: "(a) Unfair labor practices by employer. It shall be an unfair labor practice for an employer — (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title . . ." 29 U.S.C. § 158.
"The [ Garmon] doctrine precludes both state and federal courts from adjudicating issues that are entrusted to the [NLRB] in the first instance. Preemption under Garmon not only preempts state substantive law, but safeguards the exclusive jurisdiction of the [NLRB] over issues arguably within the scope of the [NLRA]." Barbieri v. United Technologies Corp., 255 Conn. 708, 719, 771 A.2d 915 (2001).
"The touchstone of preemption under [the Garmon] doctrine is the potential for conflict — potential conflict of rules of law, of remedy, and of administration . . . The potential conflict of two law-enforcing authorities, with the disharmonies inherent in two systems, one federal the other state, of inconsistent standards of substantive law and differing remedial schemes is the primary concern when a party in a labor dispute seeks to vindicate rights that implicate the [NLRB]'s jurisdiction . . . Within this complex and interrelated federal scheme of law, the Supreme Court has concerned itself with conflict in the broadest sense . . .
"The court in Garmon enumerated two tests for jurisdictional preemption. First, 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 [of that act], due regard for the federal enactment requires that state jurisdiction must yield . . . Second, the court recognized that at times it may not be clear whether the particular activity regulated by the States is governed by § 7 or § 8, or is perhaps, outside both these sections . . . In those instances, when an activity is arguably subject to § 7 or § 8 of the [NLRA], the States as well as the federal courts must defer to the exclusive competence of the [NLRB] if the danger of state interference with national policy is to be averted . . .
"Exceptions to the preemption of state jurisdiction under this rationale do exist, and a state is not ousted of the power to adjudicate matters that are of a peripheral concern to the federal labor scheme or whether the conduct at issue touche[s] interests . . . deeply rooted in local feeling and responsibility . . . In assessing whether to apply either exception a court must balance the State's interest in controlling or remedying the effects of the conduct . . . against both the interference with the [NLRB]'s ability to adjudicate controversies committed to it by the [NLRA] . . . and the risk that the State will sanction conduct that the [NLRA] protects." (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 732-34.
Under the Garmon test, the court must first ascertain whether the plaintiff's conduct as alleged in her complaint, constitutes activities that are protected, or that at least arguably protected, by § 7 of the NLRA. The language within § 7 of the NLRA that is arguably applicable to the instant case is: "[e]mployees shall have the right to . . . engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . ." (Emphasis added.) 29 U.S.C. § 157. As a result, in order to ascertain if the plaintiff's activities are protected or arguably protected by § 7 of the NLRA, the court must first determine whether the plaintiff's alleged conduct arguably constitutes concerted activity.
"In general, to find an employee's activity to be concerted, [the NLRB] require[s] that it be engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself." (Internal quotation marks omitted.) Meyers Industries, Inc., (Meyers, J.), 268 NLRB 493, 497, 115 LRRM 1025 (1984). "[I]n previous [NLRB] cases concerted activity was found where an individual, not a designated spokesman, brought a group complaint to the attention of management . . . Whether an employee has engaged in concerted activity is a factual one based on the totality of the record evidence. When the record evidence demonstrates group activities, whether specifically authorized in a formal agency sense, or otherwise, we shall find the conduct to be concerted." (Emphasis added.) Meyers Industries, Inc., (Meyers II), 281 NLRB 882, 886, 123 LRRM 1137 (1986).
"In Charles H. McCauley Associates, Inc., 248 NLRB 346 (1980), enfd. 657 F.2d 685 (5th Cir, 1981), an employee spoke to his fellow employees and apprised them of his intention to seek improvements in certain working conditions. The employee then expressly informed the employer of his intended group action, i.e., to discuss these matters with his coworkers and possibly, with a union. The employer forbade the employee to discuss these matters with his coworkers or with a union and terminated him . . . In Guernsey-Muskingum Electric Coop., Inc., 124 NLRB 618 (1959), enfd. F.2d 8 (6th Cir. 1960), three employees made a common decision, following group discussions among all three, that each would take their complaint to a high management representative." Meyers Industries, Inc., (Meyers II), 281 NLRB 882, 886, 123 LRRM 1137 (1986).
"We reiterate, our definition of concerted activity . . . encompasses those circumstances where individual employees seek to initiate or to induce or to prepare for group action, as well as individual employees bringing truly group complaints to the attention of management . . .
"It is not questioned that a conversation may constitute a concerted activity although it involves only a speaker and a listener, but to qualify as such, it must appear at the very least it was engaged in with the object of initiating or inducing or preparing for group action or that it had some relation to group action in the interest of the employees . . ." (Emphasis added.) Id., 887. As the Employment Law Deskbook treatise states: "the nonunion activities protected in [§]7 typically include presenting complaints to an employer and conferring together to discuss problems related to the job. To be protected, the activities must be concerted and engaged in for the purpose of collective bargaining or other mutual aid or protection . . ." F. Shawe W. Rosenthal, Employment Law Deskbook (2005) § 17.03, p. 17-22.
In this case, the plaintiff alleges that the defendant terminated her because the plaintiff presented employment issues and/or concerns to the defendant's management (i.e., performed her morale committee duties), in an effort to improve employment conditions and management/employee relations. In fact, the plaintiff alleges that she brought such issues and/or concerns to the attention of the management in a meeting that immediately preceded her termination. Accepting the plaintiff's factual allegations as true as the court must in a motion to dismiss; Filippi v. Sullivan, supra, 273 Conn. 8; the owner terminated the plaintiff, at least in part, for presenting other employees' issues and/or concerns to the defendant's management. Based on the NLRB's definition of concerted activity, which includes situations where "individual employees [bring] truly group complaints to the attention of management"; Meyers Industries, Inc., supra, 281 NLRB 886; the court finds the plaintiff's conduct constitutes, or arguably constitutes, concerted activity. As a result, the alleged activity is, at least, arguably governed by § 7 of the NLRA. See San Diego Unions v. Garmon, supra, 359 U.S. 245.
It is true that, in this case, the concerted action for mutual aid and protection was first initiated by the efforts of management, rather than employees, when management created the morale committee. Nevertheless, if the court assumes the truth of the allegations of the plaintiff's complaint as it must the defendant then punished or discriminated against the plaintiff for those concerted activities. It is the discrimination against the plaintiff for her role in those concerted activities that, in the language of § 8 of the NLRA, constitutes an interference with the employees' collected activities. Consequently, the defendant arguably committed an unfair labor practice even though management, rather than employees, set in motion the concerted activities that led to the plaintiff's termination.
The plaintiff also argues that Garmon preemption does not apply because this case does not require the court to analyze a collective bargaining agreement. This claim is without merit. It is well-established that an employee's right to engage in concerted activities for their mutual aid and protection exists even though no union activity is involved or even if no collective bargaining is contemplated. See, e.g., National Labor Relations Board v. Phoenix Mutual Life Ins., 167 F.2d 983, 988 (7th Cir. 1948). "A proper construction [of the Act] is that the employees shall have the right to engage in concerted activities for their mutual aid or protection, even though no union activity be involved; or collective bargaining be contemplated . . . [and] a legitimate interest in acting concertedly in making known their views to management without being discharged for that interest." (Internal quotation marks omitted.) NLRB v. Difco Laboratories, Inc., 427 F.2d 170, 171 (6th Cir. 1970), cert. denied, 400 U.S. 833 (1970). The Seventh Circuit Court has also held that concerted activities "for the purpose of mutual aid or protection are not limited to union activities." (Internal quotation marks omitted.) NLRB v. Kearney Trecker Corp., 237 F.2d 416, 420 (7th Cir. 1956).
"It is not necessary that the individual employee be appointed or nominated by other employees to represent their interests." Music City Service, Inc. v. NLRB, 705 F.2d 131, 133, (6th Cir. 1983), rehearing denied by, Music City Service, Inc. v. NLRB, 1983 U.S.App. LEXIS 26684, 113 L.R.R.M. (BNA) 3509 (6th Cir. 1983), cert. denied, 523 U.S. 1123 (1998). "The broad protection of section 7 includes protecting unorganized employees who need to speak for themselves as best they can. NLRB v. Washington Aluminum Co., 370 U.S. 9, 14, 8 L.Ed.2d 198, 82 S.Ct. 1099 (1962)." Compuware Corp. v. NLRB, 134 F.3d 1285, 1288, (6th Cir. 1998).
Nowhere in the relevant cases is Garmon preemption limited to only those cases that require a court to analyze or interpret the terms of a collective bargaining agreement. Consequently, if the activity at issue in the action involves conduct arguably protected under § 7 of the NLRB, the action will generally be preempted, provided the other Garmon factors weigh in favor of preemption.
The plaintiff also contends that Garmon preemption does not apply because the issues in this proceeding are not "identical" to the issues that could be presented to the NLRB. Specifically, the plaintiff argues that the breach of contract issues raised by this state court proceeding are not identical to any issue that could be brought before the NLRB. In support of this contention the plaintiff cites Sears, Roebuck Co. v. San Diego County District Council of Carpenters, 436 U.S. 180, 98 S.Ct. 1745 (1978).
The U.S. Supreme Court, however, has retreated from its language in Sears, which many courts interpreted as holding that Garmon preemption applied only if the issues presented in the court proceeding was identical to the issues that could be presented to the NLRB. See Local 926 International Union of Operating Engineers, AFL-CIO v. Jones, 460 U.S. 669, 103 S.Ct. 1453 (1983). Instead, the Court made clear in Local 926 that the focus of the inquiry is whether a "fundamental part" of the state law claim for breach of contract would also have been necessary for an unfair labor practice charge brought to the NLRB. Local 926, supra, 460 U.S. 682; see Barbieri v. United Technologies Corp., supra, 255 Conn. at 739-41.
Here, the fundamental part of the plaintiff's breach of contract claim is that the defendant terminated her employment in retaliation for, or on account of, her concerted activities on behalf of the "morale committee." Indeed, in Paragraph 26 of her complaint, the plaintiff explicitly alleges that she was terminated for performing "duties, functions and activities that were part of the activities and responsibilities of her employment, as assigned to her by the Defendant." Construing the complaint as a whole, this allegation is obviously a specific reference to the plaintiff's conduct and activity related to the morale committee. In essence, the plaintiff has alleged that she was fired by engaging in the exact conduct that arguably could be the basis for an unfair labor practice complaint before the NLRB.
In this case, the potential for conflict and state interference with federal labor law is obvious and substantial. If this court were to conclude that the defendant acted properly in terminating the plaintiff's employment, such a ruling could easily conflict with and run afoul of an NLRB determination that the very same conduct constitutes an unfair labor practice in violation of § 7 of the NLRA.
Finally, the plaintiff's reliance on Caterpillars, Inc. v. Williams, 982 U.S. 386, 107 S.Ct. 2425 (1987) is totally misplaced. The issue in Caterpillar was whether a state court action alleging breach of an individual employment contract was removable to federal court. In Caterpillar, the company removed the action to federal court, arguing that removal was proper on the basis of federal question jurisdiction because the state law claims would be completely preempted by § 301 of the Labor Manager Relations Act ("LMRA") [ 29 U.S.C. § 185]. The plaintiff's reliance on this case is misplaced because the LMRA is a separate and distinct statute from the NLRA. Barbieri, supra, 255 Conn. at 709 n. 1. "Preemption of state law under the LMRA differs markedly from preemption under the NLRA . . . [The LMRA] does not divest state courts of subject matter jurisdiction but simply supplants state substantive law." Id. at 717-18. In this case, the defendant has properly raised an issue regarding NLRA preemption under the Garmon doctrine, and the preemptive effect of § 301 of the LMRA and Caterpillar's interpretation of the LMRA, does not apply here.
Finally, the court concludes, as did the Connecticut Supreme Court in Barbieri, supra, at 255 Conn. 744, that any interest the State of Connecticut arguably has in providing a damages remedy to the plaintiff here for the alleged breach of contract is outweighed by the risk of interfering with the NLRB's exclusive authority to pass upon the legality of the employer's conduct under the circumstances of this case.
Because the court finds that the alleged activity is concerted and constitutes protected § 7 NLRA activity, this action is preempted by the NLRA. "[W]hen an activity is arguably subject to § 7 . . . of the [NLRA], the States must defer to the exclusive competence of the [NLRB] . . ." Barbieri v. United Technologies Corp., supra, 255 Conn. 734. Consequently, this court lacks subject matter jurisdiction and, as a result, the defendant's motion to dismiss is granted.