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Kulak v. Mail-Well Envelope Co.8/31/2000
attachments to the appellee's motion to dismiss.
Turning to the substantive law, this court has carefully considered the Ohio Supreme Court's decision in J.A. Croson Co. v. J.A. Guy, Inc. (1998), 81 Ohio St.3d 346, where the court discusses preemption under the NLRA at great length. While the underlying issue presented in Croson is not on point, the analysis of preemption is equally applicable to this case. The court found that congressional purpose must be the ultimate focus. The court also found that the U.S. Supreme Court has been concerned with potential conflicts between the federal and state court systems regarding substantive law, remedies and administration.
The Croson Court found that there are two bases for preemption, the one applicable here is found under Garmon, supra. Under Garmon, state courts are prohibited from reviewing cases which clearly or arguably fall within the parameters of the NLRA. Where a matter clearly falls within the scope of Section 7 or Section 8 of the NLRA, states are ousted of all jurisdiction. Croson, supra. The Ohio Supreme Court, in discussing activity arguably preempted from state review, held:
Where conduct only arguably falls under the protections of Section 7 or the prohibitions of Section 8 of the NLRA, and the NLRB has not yet passed on whether the conduct is actually protected or prohibited, and it may not be fairly assumed that the NLRB would adjudge the conduct to be neither protected nor prohibited, courts generally must refrain from adjudicating the issue. Id. at 244, 79 S.Ct. at 779, 3 L.Ed.2d at 783. "It is essential to the administration of the Act that these determinations be left in the first instance to the NLRB." Id. at 244-245, 79 S.Ct. at 779, 3 L.Ed.2d at 783. Accordingly, the Supreme Court has established the doctrine of primary jurisdiction to safeguard Congress's design to "entrust administration of the labor policy for the Nation to a centralized administrative agency [the NLRB]." Gould, 475 U.S. at 289-290, 106 S.Ct. at 1063, 89 L.Ed.2d at 230. In enacting the NLRA,
" 'Congress did not merely lay down a substantive rule of law to be enforced by any tribunal competent to apply law generally to the parties. It went on to confide primary interpretation and application of its rules to a specific and specially constituted tribunal and prescribed a particular procedure for investigation, complaint and notice, and hearing and decision, including judicial relief pending a final administrative order. Congress evidently considered that centralized administration of specially designed procedures was necessary to obtain uniform application of its substantive rules and to avoid these diversities and conflicts likely to result from a variety of local procedures and attitudes towards labor controversies. * * * A multiplicity of tribunals and a diversity of procedures are quite as apt to produce incompatible or conflicting adjudications as are different rules of substantive law.' " Garmon, 359 U.S. at 242-243, 79 S.Ct. at 778, 3 L.Ed.2d at 781-782, quoting Garner, 346 U.S. at 490-491, 74 S.Ct. at 165-166, 98 L.Ed. at 239-240.
The Court in Croson, supra, went on to note that there is an exception to the Garmon preemption doctrine where the activity is merely a peripheral concern to the Act, the activity touches a deeply rooted local feeling or responsibility, and the conduct underlying the action pending in state court was not protected by the Act.
In the case sub judice, it seems evident that the appellant's underlying tort claim as set forth in paragraph 5 of his complaint is preempted by federal law. Both the complaint and the NLRB Charge Against Employer mention the appellant's termination d
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