 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Calabrese v. Tendercare of Michigan Inc.6/3/2004
eed in section 157 of this title.
(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization . . . .
29 USC 157 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.
In a case very similar to this one, Sitek v Forest City Enterprises, Inc, 587 F Supp 1381 (ED Mich, 1984), the plaintiff alleged that the defendant wrongfully discharged him from his supervisory position because he refused to discourage unionizing activities. The court determined that because the plaintiff claimed that " defendant discharged him because he refused to engage in union busting," the NLRB had jurisdiction over the claim pursuant to 29 USC 158. Id. at 1384-1385. Similarly, plaintiff here claimed that defendants fired her for refusing to discourage unionizing activities. Because this is an unfair labor practice under 29 USC 158, plaintiff's claims could have been brought before the NLRB. According to the Garmon doctrine, the NLRA preempts these claims.
B. The NLRB Has Jurisdiction
Nevertheless, plaintiff contends that the NLRB's jurisdictional requirements are not met. We disagree. The NLRA authorizes the NLRB to prevent "any person from engaging in any unfair labor practice listed in section 8 affecting commerce." Commerce includes interstate and foreign commerce. 29 USC 152(6). As defined by 29 USC 152(7),
he term "affecting commerce" means in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce.
". . . Congress intended to and did vest in the Board the fullest jurisdictional breadth constitutionally permissible under the Commerce Clause." NLRB v Reliance Fuel Oil Corp, 371 US 224, 226; 83 S Ct 312; 9 L Ed 2d 279 (1963). While the NLRB has the broadest jurisdiction permitted under the commerce clause, it has adopted jurisdictional standards or guidelines expressed as a dollar amount of business volume to facilitate the efficient use of its resources in monitoring interstate commerce. NLRB v Pease Oil Co, 279 F2d 135, 137 (CA 2, 1960). But these self-imposed standards do not limit the jurisdiction conferred by Congress. NLRB v WB Jones Lumber Co, 245 F2d 388, 391 (CA 9, 1957).
As demonstrated in NLRB v Evangelical Lutheran Good Samaritan Society, 477 F2d 297, 299 (CA 9, 1973),
. . . the Board extend jurisdiction to proprietary hospitals with gross revenues of $250,000 per year. Butte Medical Properties, etc., 168 NLRB 266 (1967); and on the same date, exercised jurisdiction over the nursing home industry, if such homes were operated for a profit, and had a gross income of $100,000 per year. University Nursing Homes, Inc, 168 NLRB 263 (1967).
Finally, the Board extended its jurisdiction to non-profit nursing homes. Drexel Homes, Inc, 182 NLRB 1045 (1970).
Accordingly, this case falls within the jurisdiction of the NLRB. Although defendants concede that the WTLC is not directly engaged in interstate commerce, plaintiff's complaint
Page 1 2 3 4 5 Michigan Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|