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Calabrese v. Tendercare of Michigan Inc.6/3/2004
empted by the NLRA
The trial court erred in denying defendants' motion for summary disposition under MCR 2.116(C)(4) because plaintiff's wrongful discharge and tortious interference claims are preempted by the NLRA under the preemption doctrine set forth in San Diego Building Trades Council v Garmon, 359 US 236, 245; 79 S Ct 773; 3 L Ed 2d 775 (1959). Our Supreme Court explained the Garmon doctrine in Bullock v Automobile Club of Michigan, 432 Mich 472, 492493; 444 NW2d 114 (1989), stating:
The United States Supreme Court has developed two doctrines for determining whether a state claim is preempted by the NLRA. One doctrine, set forth in San Diego Building Trades Council v Garmon, 359 US 236, 245; 79 S Ct 773; 779; 3 L Ed 2d 775 (1959), established that state regulations and causes of action are preempted when they concern an activity that is actually or arguably protected or prohibited by the NLRA. The state claim may survive, however, if the conduct at issue "is of only peripheral concern to the federal law or touches interests so deeply rooted in local feeling and responsibility . . . ." The court balances the state's interest in regulating or promoting a remedy for the conduct against the intrusion in the NLRB's jurisdiction and the risk that the state's determination will be inconsistent with provisions of the NLRA. [Footnotes omitted.]
After deciding Garmon, the United States Supreme Court further articulated the preemption doctrine:
The critical inquiry, therefore, is not whether the State is enforcing a law relating specifically to labor relations or one of general application but whether the controversy presented to the state court is identical to . . . or different from . . . that which could have been, but was not, presented to the Labor Board. For it is only in the former situation that a state court's exercise of jurisdiction necessarily involves a risk of interference with the unfair labor practice jurisdiction of the Board which the arguably prohibited branch of the Garmon doctrine was designed to avoid.
The primary-jurisdiction rationale unquestionably requires that where the same controversy may be presented to the state court of the NLRB, it must be presented to the Board. [ Sears, Roebuck & Co v San Diego County Dist Council of Carpenters, 436 US 180, 197, 202; 98 S Ct 1745; 56 L Ed 209 (1978).]
More recently, this Court held:
Subject to limited exceptions, when an activity is "arguably" subject to the provisions of the NLRA, states must defer to the exclusive competence of the National Labor Relations Board. [ Int'l Longshoremen's Ass'n v Davis, 476 US 380, 381; 394; 106 S Ct 1904; 90 L Ed 2d 389 (1986)]; San Diego Building Trades Council v Garmon, 359 US 236, 245; 79 S Ct 773; 3 L Ed 2d 775 (1959). When a party asserts that state proceedings are preempted because the conduct at issue is within the purview of the NLRA, the claim represents a challenge to the subject-matter jurisdiction of the state court or tribunal; it is a "claim that the state court has no power to adjudicate the subject matter of the case. Davis at 393. . . . [ AFSCME v Mental Health Dep't, 215 Mich App 1, 5; 545 NW2d 363 (1996), quoting Michigan Council 25, AFSCME v Louisiana Homes, Inc (On Remand), 203 Mich App 213, 216-217; 511 NW2d 696 (1994).]
Here, plaintiff alleged that defendants terminated her employment because she refused to fire employees for engaging in unionizing activities. The pertinent portions of the NLRA, 29 USC 158, provide:
It shall be an unfair labor practice for an employer --
(1) to interfere with, restrain, or coerce employees in the exercise of the rights guarant
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