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Kulak v. Mail-Well Envelope Co.8/31/2000
As a result of the investigation, it appears there is insufficient evidence of a violation of the Act. I am, therefore, refusing to issue complaint in these matters.
On April 5, 1999, the appellant filed his response and asserted that the basis of the appellee's motion was Civ.R. 12(B)(6) and that, under the doctrine of notice pleading, the complaint was sufficient. The appellant argued that when deeming all of the facts in the complaint as true and when considering those facts in his favor, he has sufficiently set forth a public policy exception to the employment-at-will doctrine. The appellant stated that neither the doctrine of preemption nor the fact that he is a member of a union require dismissal of this suit.
On April 12, 1999, the appellee filed a reply brief instanter.
On June 10, 1999, the court denied the appellee's motion to dismiss or in the alternative for summary judgment. The court issued new dates and ordered the parties to supplement their respective briefs.
On June 11, 1999, a pretrial was held at which both parties were present. Subsequently, on June 23, 1999, the appellee filed a motion for reconsideration. This motion reasserted the appellee's position that the claim for wrongful discharge should be dismissed for lack of subject matter jurisdiction. The appellant filed no response.
On August 19, 1999, the trial court dismissed the action for lack of subject matter jurisdiction. It is from this order that the appellant files this appeal.
The appellant sets forth one assignment of error:
THE TRIAL COURT ERRED IN DISMISSING THIS CASE FOR LACK OF SUBJECT MATTER JURISDICTION. THE JUDICIAL EXPANSION OF THE PUBLIC POLICY TORT IN OHIO EXTENDS THAT CONCEPT TO CASES WHERE EMPLOYEES ARE COVERED BY A COLLECTIVE BARGAINING AGREEMENT.
The appellant asserts that he has properly stated a public policy exception to the employment-at-will doctrine and that, because no interpretation of the collective bargaining contract is needed to assess the appellee's motive in terminating him from his employment, the preemption doctrine does not mandate a dismissal of this action. The appellee argues that the court properly dismissed the action for lack of subject matter jurisdiction because the subject of the complaint is regulated and preempted under the National Labor Relations Act (NLRA), 29 U.S.C. 157, 158(a)(1)(3). In the alternative, the appellee asserts that dismissal is required because the appellant is a member of the collective bargaining unit and not an employee-at-will.
Turning first to the procedural history of this case, the record reveals that the appellee originally filed a motion to dismiss or in the alternative motion for summary judgment. At one point the court attempted to convert the motion to dismiss into a motion for summary judgment by ordering the parties to supplement their motion/response to the motion. However, neither party submitted supplementary documentation, rather, the court accepted a motion for reconsideration from the appellee. The trial court issued its final order on the basis of Civ.R. 12(B)(1) only. Thus, this court will not consider the fact that there was an attempt to convert the motion to dismiss into a motion for summary judgment.
This court notes that in Nemazee v. Mt. Sinai Med. Ctr. (1990), 56 Ohio St.3d 109, at footnote 3, the Supreme Court found that a trial court has authority to consider any pertinent evidentiary materials when determining its own jurisdiction. See Southgate Development Corp. v. Columbia Gas Transmission Corp. (1976), 48 Ohio St.2d 211, paragraph one of the syllabus. Therefore, the trial court herein properly reviewed the
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