Garavaglia v. Centra, Inc , 211 Mich. App. 625 ( 1995 )

211 Mich. App. 625 (1995) 536 N.W.2d 805

GARAVAGLIA
v.
CENTRA, INC

Docket No. 148153.

Michigan Court of Appeals.

Submitted October 19, 1994, at Detroit. Decided June 23, 1995, at 9:35 A.M.

Gottlieb & Goren, P.C. (by Charles Gottlieb), for the plaintiff.

Plunkett & Cooney, P.C. (by Ernest R. Bazzana and Kelly A. Freeman), for the defendants.

Before: WAHLS, P.J., and JANSEN and J.P. NOECKER,^[*] JJ.

JANSEN, J.

Defendants Centra, Inc., Central Transport, Central Cartage Company, and Manuel J. Moroun (hereafter defendants), appeal as of right from a jury verdict for plaintiff in the amount of $197,500 in this action alleging wrongful discharge. We affirm.

Plaintiff filed his complaint in the Wayne Circuit Court, alleging age discrimination, breach of an employment contract terminable for just cause only, discharge in breach of public policy, tortious interference with contractual relations, violation of the Employee Right to Know Act, MCL 423.501 et seq.; MSA 17.62(1) et seq., and seeking a declaratory judgment (specific performance). A jury found for plaintiff with regard to the claim of breach of an employment contract terminable for just cause only (awarding $60,000), the claim of breach of public policy (awarding $100,000), and the declaratory judgment claim (awarding $37,500 for breach of a written retainer fee contract). Defendants now contest the verdict with regard to the claim of breach of public policy.

Plaintiff alleged that his employment was terminated in breach of public policy on the bases that defendants submitted to union demands that they fire plaintiff to achieve "labor peace," that plaintiff failed to obey defendants' request to destroy documents subpoenaed by a federal grand jury, and that plaintiff blocked an offer by the union to dismiss a lawsuit by refusing to agree not to countersue the union. Defendants admitted in their trial brief that they terminated plaintiff's employment because of union pressure that there would be no labor peace unless plaintiff was removed. It was plaintiff's contention that it was a violation of the National Labor Relations Act (NLRA) for the union to influence defendants in their choice of a bargaining representative. 29 USC 158(b)(1)(B).

I

Defendants first contend that the jury verdict regarding the claim of breach of public policy must be vacated because plaintiff cannot recover damages for both breach of an employment contract terminable for just cause only and discharge in breach of public policy.

We find that this issue is not properly preserved for appellate review. Defendants never argued below that breach of an employment contract terminable for just cause only and breach of public policy are alternative theories and that plaintiff cannot recover under both. Issues raised for the first time on appeal ordinarily are not subject to review. Booth Newspapers, Inc v Univ of Michigan Bd of Regents, 444 Mich. 211, 234; 507 NW2d 422 (1993). Because this issue was never raised below, we decline to review it. See Peterman v Dep't of Natural Resources, 446 Mich. 177, 183; 521 NW2d 499 (1994) (it is a "time-honored rule that, absent unusual circumstances, issues not raised at trial may not be raised on appeal").

II

Defendants next contend that the trial court erred in denying their motion for a directed verdict with regard to the claim of breach of public policy.

Plaintiff's claim regarding breach of public policy was based on the NLRA. Specifically, plaintiff alleged that defendants breached public policy by yielding to union demands to fire plaintiff. Pursuant to 29 USC 158(b)(1)(B), it is an unfair labor practice for a union to coerce an employer regarding the selection of the employer's labor relations representative. Defendants contend that plaintiff's claim is legally insufficient because Michigan does not recognize an implied cause of action for breach of public policy when an employer violates federal law. Defendants also contend that the NLRA does not confer rights on plaintiff and, because he is not protected by the NLRA, he cannot receive a remedy for the alleged violation.

We first note that the question regarding legal sufficiency raised by defendants was not raised in the trial court in their motion for a directed verdict. Rather, defendants raised this issue by objecting to the trial court's instructions regarding the alleged breach of public policy. Thus, with regard to the issue concerning legal sufficiency, we review the trial court's instructions as a whole. The question is whether the instructions as given adequately informed the jury of the applicable law reflecting the various evidentiary claims in the particular case. Riddle v McLouth Steel Products Corp, 440 Mich. 85, 101; 485 NW2d 676 (1992). We find that the jury instructions adequately informed the jury of the applicable law.

In Suchodolski v Michigan Consolidated Gas Co, 412 Mich. 692, 695; 316 NW2d 710 (1982), the Supreme Court stated that an exception to the employment at will doctrine will be recognized on the basis of the principle that some grounds for discharging an employee are so contrary to public policy as to be actionable. First, an exception exists where there are explicit legislative statements prohibiting the discharge, discipline, or other adverse treatment of employees who act in accordance with a statutory right or duty. Id. Second, such a cause of action has been found to be implied where the alleged reason for the discharge of the employee was the failure or refusal to violate a law in the course of employment. Id. Finally, a cause of action has also been found to be implied where the alleged reason for the discharge was the employee's exercise of a right conferred by a well-established legislative enactment. Id., p 696. To some extent, the first of the three grounds in Suchodolski has been limited in Dudewicz v Norris Schmid, Inc, 443 Mich. 68, 80; 503 NW2d 645 (1993), where the Court held that a public policy claim is sustainable only where there is not an applicable statutory prohibition against discharge in retaliation for the conduct at issue.

The trial court instructed the jury in pertinent part as follows:

Now, you are instructed that if you find the plaintiff was dismissed from his employment or from performing the obligations, the duties and demands of his office or release from his employment service, or moved from a greater job to a lesser job that you may find that plaintiff was wrongfully discharged.

You are further instructed that an employer is not free to discharge, discipline or otherwise adversely treat an employee who acts in accordance with the statutory right or duty, or where the employee fails or refuses to violate the law in the course of his employment; nor can the employer discharge the employee when the reason for the discharge is an intention on the part of the employer to contravene the public policy of Michigan or the United States.

Now, you are further instructed that it is against public policy to restrain or coerce an employer in the selection of its representative for collective bargaining or adjustment of grievances or; secondly, to refuse to bargain with an employer based on the employers' selection of its representative.

We find that the trial court's instructions adequately informed the jury of the law. We agree with plaintiff that a claim regarding a breach of public policy may be premised on the alleged violation of a federal statute. Other jurisdictions have also recognized a wrongful discharge action based on a clearly articulated federal policy. Sherman v St Barnabas Hosp, 535 F Supp 564 (SD NY, 1982); D'Agostino v Johnson & Johnson, Inc, 133 NJ 516; 628 A2d 305 (1993). Further, the fact that the NLRA does not specifically confer rights upon plaintiff is not dispositive. As this Court has stated, "the better view is that an employer at will is not free to discharge an employee when the reason for the discharge is an intention on the part of the employer to contravene the public policy of this state." Sventko v Kroger Co, 69 Mich. App. 644, 647; 245 NW2d 151 (1976). Thus, it is the fact that the employer discharged plaintiff in contravention of the public policy of this state that permits plaintiff's claim regarding the breach of public policy.

In any event, plaintiff was entitled to be the employer's bargaining representative without influences from the union. Under the NLRA, a duty is imposed on the union not to influence or interfere with an employer's choice of a bargaining representative. Accordingly, the NLRA did confer a right upon plaintiff to be the bargaining representative without being pressured to leave by the union. Under these circumstances, the third prong of Suchodolski is satisfied because a cause of action may be had where the alleged reason for the discharge is the employee's exercise of a right conferred by a well-established legislative enactment.

Next, defendants contend that plaintiff failed to prove a prima facie case of breach of public policy and that the trial court, therefore, erred in denying their motion for a directed verdict. When evaluating a motion for a directed verdict, the court must consider the evidence in a light most favorable to the nonmoving party, making all reasonable inferences in the nonmoving party's favor. Locke v Pachtman, 446 Mich. 216, 223; 521 NW2d 786 (1994). Directed verdicts are appropriate only when no factual question exists upon which reasonable minds may differ. Brisboy v Fibreboard Corp, 429 Mich. 540, 549; 418 NW2d 650 (1988).

We find that plaintiff presented sufficient evidence at trial of a claim for breach of public policy. Plaintiff alleged that defendants terminated his employment by yielding to union demands that terminating his employment was the only way of achieving labor peace. Plaintiff testified that he was told that he would be removed from labor relations because he had been rendered neutral with the union during the many "snowballs" with other transportation companies. According to plaintiff, defendants were taking over the bankruptcies of other transportation companies, closing out the operations and creating confrontations with the unions in the bankruptcy courts. Plaintiff met with Manuel Moroun and it was reiterated that defendants' actions put plaintiff in the position that he had problems with the unions. Moroun made clear to plaintiff that plaintiff's work was satisfactory and that he knew that plaintiff was loyal. Further, defendants admitted in their opening statement that the union made clear to Moroun that it did not want to deal with plaintiff.

Taking this evidence in a light most favorable to plaintiff and drawing all legitimate inferences therefrom, we find that plaintiff presented sufficient evidence regarding his claim of breach of public policy to withstand a motion for a directed verdict. A rational trier of fact legitimately could infer that the union pressured defendants into firing plaintiff in order to achieve labor peace.

III

Last, defendants argue that the trial court's order taxing costs should be reversed if this Court vacates the jury verdict or grants a new trial. Because we are affirming the jury's verdict, we also affirm the trial court's order taxing costs pursuant to MCR 2.625(A) and (B).

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.