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Kulak v. Mail-Well Envelope Co.8/31/2000
JUDGMENT: AFFIRMED.
Plaintiff-appellant Thomas Kulak appeals from the decision of the trial court granting the motion to dismiss filed by defendant-appellee Mail-Well Envelope Co.
In the complaint filed by the appellant on December 8, 1998, he states that he was continuously employed by the appellee from February 20, 1979 until January 9, 1998. At the time of his termination, the appellant held the position of Class AA Machinist. The appellant alleges that the circumstances surrounding his termination violated public policy. Specifically, in count one at paragraph 5 of the complaint, the appellant stated:
Mail Well terminated Kulak in violation of the clear public policy of the State of Ohio. Mail Well terminated Kulak for past and present activities relating to the collective bargaining rights of Mail Well employees. In particular Mail Well terminated Kulak for circulating a petition among fellow workers which petition advocated a position relating to the collective bargaining rights of Mail Well employees with which Mail Well disagreed. As a direct and proximate result of Mail Well's termination of Kulak in violation of the clear public policy of the State of Ohio, Kulak has sustained economic loss, mental pain and suffering and humiliation.
On March 12, 1999, the appellee filed a motion to dismiss or in the alternative for summary judgment. The appellee moved under Civ.R. 12(B)(1) for a dismissal based upon the theory that the appellant's claims are preempted under the National Labor Relations Act. San Diego Bldg. Trades Council v. Garmon (1959), 359 U.S. 236. In the alternative, the appellee asserted that the appellant's claims should be dismissed as a matter of law since, as a union member, the appellant was not an employee-at-will, which would, of course, vitiate his public policy allegation. Haynes v. Zoological Soc. of Cincinnati (1995), 73 Ohio St.3d 254.
Attached as Exhibit A to the motion to dismiss is a form titled Charge Against Employer. The charge, filed with the National Labor Relations Board (NLRB), lists Mail-Well as the employer and it is signed by the appellant. Section h states:
The above named employer has engaged in and is engaging in unfair labor practices withing the meaning of section 8(a), subsections (1) and (3) of the National Labor Relations Act, and these unfair labor practices are unfair practices affecting commerce within the meaning of the Act.
In section 2, the basis of the charge is described as:
On or about January 6, 1998, it, by its officers, agents, and representatives, threatened Thomas Kulak, suspended him on January 7, 1998, and subsequently terminated him on January 9, 1998, because of his membership and activities in behalf of the International Association of Machinists and Aerospace Workers, AFL-CIO, District 54, a labor organization, and at all times since such date it has refused and does now refuse to employ the above-named employee. By the acts set forth in the paragraphs above and by other acts and conduct, it, by its officers, agents, and representatives, has interfered with, restrained and coerced and is interfering with, restraining, and coercing its employees in the exercise of their rights guaranteed in Section 7 of the said Act.
Attached as Exhibit B to the motion to dismiss is a copy of the ruling by the acting regional director of the NLRB which states in pertinent part:
The above-captioned cases charging violations under Section 8 of the National Labor Relations Act, as amended, have been carefully investigated and considered, and it appears that further proceedings are not warranted at this time.
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