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Kulak v. Mail-Well Envelope Co.8/31/2000
ate of January 9, 1998 and both concern the same employer. The charge states that the appellant is a union member. Thus, even though the record contains only a bare pleading, it is clear that the NLRB charge and the complaint for wrongful discharge concern the same activities by the parties. At the very least, it is arguable that the activities were substantially similar and therefore preemption under Garmon is required.
Lastly, the appellant has not presented a case wherein there is an exception to the preemption doctrine. The activity of the appellant as outlined in the complaint, that of circulating a petition advocating a position in relation to collective bargaining rights, is not a mere peripheral concern of the NLRA. While the specific issue in the petition is not stated in the record before this court, in general, the right to circulate a petition on a labor related issue is not an activity limited to a deeply rooted local feeling or responsibility.
The appellant's claim is preempted by the NLRA and no exception to the preemption is warranted. The trial court properly granted the appellee's motion to dismiss for lack of subject matter jurisdiction.
If this court were to assume, arguendo, that the appellant's claim were not preempted by federal labor law, this court would still affirm the trial court's decision to dismiss the appellant's action. The appellant has opined that this court improperly decided Stallworth v. Greater Cleveland Regional Transit Authority (Nov. 5, 1998), Cuyahoga App. No. 73533, unreported. This court must specifically disagree. In Stallworth, this court dismissed a wrongful discharge claim filed by a collective bargaining member on the basis of the Ohio Supreme Court's holding in Haynes, supra. In Haynes, the court found that a member of a collective bargaining unit is not an employee-at-will and has no cause of action under Greeley v. Miami Valley Maintenance Contrs. (1990), 49 Ohio St.3d 228. The Supreme Court did not distance itself from this position in Kulch v. Structural Fibers, Inc. (1997), 78 Ohio St.3d 134. The appellant herein, as the plaintiff in Stallworth, is a member of a union and not an employee-at-will. The appellant's action must be dismissed as a matter of law. Stallworth, supra.
The appellant's assignment of error is overruled.
Judgment affirmed.
This cause is affirmed.
The court finds there were reasonable grounds for this appeal. It is, therefore, considered that said appellee recover from appellant its costs herein taxed.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Exceptions.
ANN DYKE, A.J., and LEO M. SPELLACY, J., CONCUR.
JAMES D. SWEENEY JUDGE
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