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Calabrese v. Tendercare of Michigan Inc.6/3/2004
clearly alleges that it engaged in unfair labor practices, which indirectly affect interstate commerce. Also, while defendants' assertions about WTLC's annual gross revenues and Tendercare's breadth of business are not substantiated by the record, this factual matter is not essential to our resolution of this jurisdictional issue. It is well settled that the NLRB has the discretion to exercise its jurisdictional authority. See 29 USC 164(c). As defendants correctly state, the issue of whether the NLRB has jurisdiction is distinct from the issue of whether the NLRB will assert its jurisdiction. Thus, it is not necessary to resolve the factual issue regarding whether defendants satisfy the NLRB's discretionary standard for exercising jurisdiction. Because plaintiff's allegations of defendants' unfair labor practice actually or arguably fall within the NLRB's jurisdiction, we conclude that plaintiff's claims are preempted under Garmon.
C. Discharge of a Supervisor May Violate the NLRA
Plaintiff also incorrectly contends that the NLRA is not applicable to this case because it does not apply to supervisors' actions. Although 29 USC 158 is not expressly applicable to supervisors, in Pontiac Osteopathic Hospital, 284 NLRB 442 (1987), the NLRB held:
It is clear that protection under the Act is afforded to employees, not supervisors. Consequently, the discharge of a supervisor violates the Act only where it interferes with the exercise of employees' Section 7 rights.
Stated differently in Parker-Robb Chevrolet, Inc, 262 NLRB 402, 404 (1982),
In final analysis, the instant case, and indeed all supervisory discharge cases, may be resolved by this analysis: The discharge of supervisors is unlawful it if interferes with the rights of employees to exercise their rights under Section 7 of the Act, as when they give testimony adverse to their employer's interest or when they refuse to commit unfair labor practices.
Plaintiff's claims come within the scope of the NLRA because she alleged that she was terminated for refusing to interfere with employees' rights under 29 USC 157. See also Sitek, supra.
D. Garavaglia is not Controlling
We agree with defendants that the trial court erred when it relied on Garavaglia v Centra, Inc, 211 Mich App 625, 629, 633; 536 NW2d 805 (1995), in ruling that plaintiff's public policy claim was not preempted by the NLRA.
In Garavaglia, the plaintiff alleged that his employer breached public policy by acts that violated the NLRA. Id. at 629. The defendants argued that the trial court erred in denying their motion for a directed verdict because Michigan does not recognize an implied cause of action for breach of public policy based on an employer's violation of federal law. Id. This Court determined that the plaintiff's claim "regarding a breach of public policy may be premised on the alleged violation of a federal statute." Id. at 631.
We read Garavaglia as limited to its facts, which are distinct from the facts in this case. In Garavaglia, the defendants asserted that there was no state cause of action based on the NLRA. They did not argue, as defendants do here, that the plaintiff's claim was preempted by the NLRA. In Garavaglia, had the defendants raised or the courts addressed the preemption issue, it is clear the NLRA would have been found to preempt the plaintiff's claim. Therefore, the Garavaglia decision applies to only those cases in which preemption is not raised or addressed.
In conclusion, the trial court erred in denying defendants' motion for summary disposition under MCR 2.116(C)(4) because plaintiff's claims are preempted by the NLRA under
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