DocketNumber: No. 537395
Citation Numbers: 1997 Conn. Super. Ct. 918
Judges: HURLEY, JUDGE TRIAL REFEREE.
Filed Date: 2/7/1997
Status: Non-Precedential
Modified Date: 4/17/2021
Should the plaintiff's first amended complaint be dismissed for lack of subject matter jurisdiction because the claims asserted are preempted by the National Labor Relations Act,
PROCEDURAL HISTORY
On June 18, 1996, the plaintiff, Peter Mercuri, filed an four count amended complaint against the defendant, Northeast Utilities.1 The complaint alleges the following facts. The defendant is a Connecticut corporation doing business in this state. The plaintiff was employed by the defendant as a member of the defendant's Site Engineering and Maintenance Group. In 1993, the plaintiff and other members of this group filed a grievance objecting to a proposed work schedule which would require them to work on Saturdays and Sundays. Thereafter, in January 1994, the defendant terminated the plaintiff's employment.
Count one alleges that the grievance constituted a "concerted activity" and that the plaintiff's discharge violated the "public policy of the State of Connecticut which protects concerted activity in accordance with the National Labor Relations Act,
Count two incorporates the allegations of count one and alleges that the plaintiff's discharge violated an oral agreement between the parties, which agreement provided that the defendant would only discharge employees for reasons that were fair. The plaintiff alleges that his discharge was in retaliation for concerted activity and was unfair.2
Count three incorporates the allegations of count one and alleges that the plaintiff's discharge breached an implied contract. According to the plaintiff, the employee handbook constituted a written agreement which permitted employees to use the defendant's grievance policy for resolving work-related concerns.
Count four incorporates the allegations of count one and alleges a claim for negligent infliction of emotional distress. The plaintiff asserts that the defendant negligently inflicted emotional distress upon him by discharging him because of his concerted activity.
On August 30, 1996, the defendant filed a motion to dismiss the complaint for lack of subject matter jurisdiction on the ground that the claims are preempted by the National Labor Relations Act,
DISCUSSION
A motion to dismiss may be used to contest the court's subject matter jurisdiction. McCutcheon Burr, Inc. v.Berman,
1. Counts One and Two. CT Page 920
In counts one and two, the plaintiff alleges that by filing a grievance he engaged in "concerted activity" protected under the National Labor Relations Act (Act) and that he was discharged in retaliation for this activity. Under § 7 of the Act, employees have the right to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection. . . ."
The Supreme Court has held that "[w]hen an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted." San DiegoBuilding Trades Council v. Garmon,
In counts one and two, the plaintiff alleges that his discharge was in retaliation for concerted activity, namely, filing a grievance. The claims alleged in these counts are arguably preempted by the provisions of the Act which protect employees' rights to engage in such activity. In Buscemi v.McDonnell Douglas Corp.,
The plaintiff appears to concede in his brief that counts one and two are preempted. He states that "all four counts of plaintiff's complaint are NOT based upon the CT Page 921 allegation that plaintiff was retaliated against for engaging in `concerted activity.' Only count one and two are based on such an allegation. Therefore, at the most, count one and two are subject to defendant's claim." (Plaintiff's Opposition to Defendant's Motion to Dismiss, 9/23/96, p. 1).
On the basis of the statutory language and the plaintiff's statement that counts one and two are based on concerted activity, the motion to dismiss these counts should be granted. The plaintiff argues, however, that the Board declined to assert jurisdiction and therefore this court may do so. In contrast, the defendant argues that the Board exercised jurisdiction and decided the matter adversely to the plaintiff.
The Act states that "[n]othing in this subchapter shall be deemed to prevent or bar . . . the courts of any State . . . from assuming and asserting jurisdiction over labor disputes over which the Board declines . . . to assert jurisdiction."
In this case, the same claims asserted in counts one and two were submitted to the Board. The plaintiff and others filed a charge against the defendant with the Board which asserted:
On or about September 30, 1990, the above named employer by its officers, agents and representatives terminated the following employees: Joe Shell, Richard Stafford, Pete CT Page 922 Mercuri, Miguel Hernandez and Saverio Orlando, because they engaged in concerted activities with other employees of said employer for the purpose of collective bargaining and other mutual aid and protection and in order to discourage employees from engaging in such activities. (Defendant's Reply Brief to Plaintiff's Opposition to Motion to Dismiss, 10/18/96, Exhibit B).
The Board refused to issue a complaint. It "carefully investigated and considered" the charge and found that "the investigation disclosed insufficient evidence that the Employer terminated its site maintenance attendants because they had concertedly complained about a change in their work schedules." (Defendant's Reply Brief to Plaintiff's Opposition to Motion to Dismiss, 10/18/96, Exhibit A: Letter from Peter B. Hoffman, Regional Director, National Labor Relations Board, to Anthony D. Collins, Esq., April 29, 1994). It is evident that the Board did not decline jurisdiction with respect to the claims asserted in counts one and two.
For the foregoing reasons, the claims asserted in counts one and two are preempted the Act and are hereby dismissed.
2. Count Three.
The plaintiff alleges that the defendant's employee handbook contained a policy statement implying that employees would not be penalized or discharged for filing complaints. He alleges that he was discharged for using the handbook's grievance "procedure" to protest an anticipated schedule change and that the discharge was therefore a breach of an implied contract.
The defendant argues that count three is preempted because it alleges that the discharge was in retaliation for concerted activity. The defendant refutes the plaintiff's assertion that count three is a claim for retaliation against an individual grievance, pointing out that the plaintiff has not alleged that he filed an individual grievance. In addition, the defendant contends that matters arguably within the scope of the Act are preempted, even when they are alleged as a common law cause of action.
The plaintiff maintains that he filed an individual CT Page 923 grievance against the defendant and that this court has subject matter jurisdiction. He argues that, although count three incorporates the allegations of count one regarding concerted activity, these allegations are "superfluous" to the cause of action alleged in count three.
The plaintiff seeks to have the court disregard the express factual allegations in count three and infer other factual allegations which are not alleged. As pled, count three states that the discharge was "a result of using the grievance procedure to protest an anticipated change in schedule." (Amended Complaint, 6/18/96, para. 13). The grievance is set out in count one, which count is incorporated into count three. The grievance described in count one is the only grievance alleged. Although the plaintiff attempts to plead a common law cause of action for breach of an implied contract, the concerted activity is the gravamen of count three. See Satterfield v. Western Electric Co.,
2. Count Four.
The defendant contends that the plaintiff's state law claim for negligent infliction of emotional distress is preempted.
The Act does not expressly preempt state law claims. As noted earlier, Garmon established the exclusivity of the provisions of the Act for claims arguably within its purview. Later, in Farmer v. United Brotherhood of Carpenters Joinersof America,
The initial inquiry in a preemption analysis, then, is whether the alleged conduct is arguably protected or prohibited by the Act. Clayton v. Gold Bond Building Products,
The plaintiff alleges that he suffered emotional distress because the defendant discharged him as a result of his concerted activity. For reasons stated earlier in this memorandum, the conduct alleged by the plaintiff is arguably protected under § 7 of the Act and therefore is within the primary jurisdiction of the Board.
The issue now becomes whether an exception to preemption applies under the facts of this case. Campbell v. McLeanTrucking Co.,
In Farmer v. United Brotherhood of Carpenters Joinersof America, supra,
The Supreme Court granted certiorari to consider whether the Act preempts a tort action brought in state court to recover damages for the intentional infliction of emotional distress.3
The Court stated that, in recognizing exceptions toGarmon, it has analyzed "the scope of the general rule by examining the state interests in regulating the conduct in question and the potential for interference with the federal regulatory scheme." Id., 297. The Court found that the state has a substantial interest in protecting its citizens from outrageous conduct. Id., 302. In addition, the court reasoned that regardless of whether the operation of the union was lawful or unlawful under federal statutes, there is no federal protection for the outrageous conduct of which the plaintiff complained. Id. Thus, there was no risk that permitting the state cause of action to proceed would interfere with the effective administration of national labor policy. Id. Under CT Page 925Farmer, "the finding of a significant state interest and no risk of identical issue adjudication taken together . . . justifie[s] an exception to the preemption rule." (Internal quotation marks omitted.) Campbell v. McLean Trucking Co.,
supra,
The Farmer Court did acknowledge that "[i]n the context of . . . [the petitioner's] other allegations of discrimination in hiring hall referrals . . . [the petitioner's] allegations of tortious conduct might form the basis for unfair labor practice charges before the Board." Id., 301-02. "The occurrence of the abusive conduct, with which the state tort action is concerned, in such a context of federally prohibited discrimination suggests a potential for interference with the federal scheme of regulation." Id., 304. According to the Court, "a rigid application of the Garmon doctrine might support the conclusion of the California courts that . . . [the petitioner's] entire action was preempted by federal law." Id., 302. Thus, the Court held that for the state court to have jurisdiction, "it is essential that the state tort be either unrelated to employment discrimination or a function of the particularly abusive manner in which the discrimination is accomplished or threatened rather than a function of the threatened discrimination itself."4 Id., 305.
While Farmer recognized an exception to the Garmon doctrine for emotional distress, the exception is inapplicable in this action. Farmer involved discrimination in employment opportunities, and the Court found persuasive the fact that the state court action could be adjudicated without regard to the underlying labor dispute, i.e., the discrimination. The Farmer court stated that if the charges were filed with the Board, the focus of the proceeding would be on whether the alleged conduct constituted employment discrimination and not on whether the conduct also caused emotional distress. Id., 304. The Court found that, under the facts of the case, the potential for interference with the federal scheme of regulation was insufficient to counterbalance the interest of the state in protecting its citizens. Id. In the present action, however, there is a greater risk of interference with federal regulations than that which existed in Farmer.
The concern over the risk of identical issue adjudication in preemption analysis expressed in Farmer is reflected in other Supreme Court and federal court decisions. CT Page 926 In Sears. Roebuck Co. v. San Diego County District Council ofCarpenters,
In Carter v. Sheet Metal Workers' International Assn.,
In the present case, the potential for identical issue adjudication is evident. The factual allegations supporting the emotional distress claim are that the plaintiff was discharged for "concerted activity" in filing a grievance. The Board investigated this claim and determined that the termination was for reasons unrelated to the filing. The state court's exercise of jurisdiction in this case would entail adjudication of issues already presented to and decided by the Board. Although the plaintiff alleges that the defendant's conduct caused him emotional distress, an issue not before the Board, the court's focus is properly on "the conduct which allegedly gives rise to Plaintiffs' claims, as opposed to the descriptive title given to a particular cause of action."Clayton v. Gold Bond Building Products, supra,
In Magnuson v. Burlington Northern. Inc.,
In the present case, the Board refused to issue a complaint because it found no merit to the plaintiff's claims. To prevail at trial in this action the plaintiff must disprove the Board's finding. The nature of the activity the court CT Page 928 would be regulating is conduct prohibited by the Act. Accordingly, the motion to dismiss count four is hereby granted.
D. Michael Hurley, Judge Trial Referee
Ben Carter v. Sheet Metal Workers' International ... , 724 F.2d 1472 ( 1984 )
William A. Satterfield v. Western Electric Company, Boese ... , 758 F.2d 1252 ( 1985 )
Harold R. Magnuson v. Burlington Northern, Inc., D. S. ... , 576 F.2d 1367 ( 1978 )
Lay Fac. Assoc. v. Newark Archdiocese , 122 N.J. Super. 260 ( 1973 )
michael-n-buscemi-v-mcdonnell-douglas-corporation-a-missouri , 736 F.2d 1348 ( 1984 )
San Diego Building Trades Council v. Garmon , 79 S. Ct. 773 ( 1959 )
Farmer v. United Brotherhood of Carpenters & Joiners of ... , 97 S. Ct. 1056 ( 1977 )
Sears, Roebuck & Co. v. San Diego County District Council ... , 98 S. Ct. 1745 ( 1978 )