United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO
Corbett O'Meara United States District Judge.
the court is Defendant Rite Aid Services, LLC's motion to
dismiss the complaint, which has been fully briefed. Pursuant
to L.R. 7.1(f)(2), the court did not hear oral argument.
Paula Berg and Mark Preisler allege that they were wrongfully
discharged from their employment with Defendant Rite Aid
Services, LLC, in violation of Michigan public policy. Berg
was a Safety/Training Manager at Defendant's distribution
center in Waterford, Michigan, and Preisler was a Human
Resources Manager. The non-management employees at the
distribution center were subject to a collective bargaining
agreement (“CBA”). According to Plaintiffs, the
CBA provided that employees who tested positive for drugs or
alcohol were to be placed on a “last-chance”
agreement. When two union employees tested positive for drugs
or alcohol after a workplace accident, Plaintiffs disciplined
them in accordance with the CBA, giving both a “final
warning.” Subsequently, Plaintiffs were terminated for
failing to immediately fire those employees consistent with
Defendant's zero tolerance drug free workplace policy.
Plaintiffs contend that Defendant's zero tolerance policy
conflicted with the CBA and that they were terminated for
refusing to violate the CBA and Sections 8(a)(5) and (1) of
the National Labor Relations Act.
seeks dismissal of Plaintiffs' claims, arguing that they
are preempted by Section 301 of the Labor Management Act, 29
U.S.C. § 185, and the National Labor Relations Act, 29
U.S.C. § 151 et seq. Plaintiffs' complaint
sets forth a single count of wrongful discharge in violation
of public policy. As the Michigan Supreme Court has
[a]n at-will employee's discharge violates public policy
if any one of the following occurs: (1) the employee is
discharged in violation of an explicit legislative statement
prohibiting discharge of employees who act in accordance with
a statutory right or duty; (2) the employee is discharged for
the failure or refusal to violate the law in the course of
employment; or (3) the employee is discharged for exercising
a right conferred by a well-established legislative
McNeil v. Charlevoix Cty., 484 Mich. 69, 79 (2009).
Plaintiffs' claim falls under the second category.
Plaintiffs contend that they were terminated for refusing to
violate the CBA, an action they argue “clearly violates
Sections 8(a)(5) and (1) of the National Labor Relations Act,
as Defendants were directing Plaintiffs to violate the terms
of the CBA that provided for progressive disciplinary
procedures . . . [and enforce] a policy that had not been
bargained for by Defendant and the Union.” Pls.'
Br. at 10. According to Plaintiffs, enforcement of the zero
tolerance policy amounts to a refusal to bargain, which is an
unfair labor practice. Id. Plaintiffs claim that
they were terminated for refusing to commit an unfair labor
practice in violation of the NLRA.
the NLRA does not contain an express preemption provision,
the Supreme Court has held that §§ 7 and 8 claims
fall under the jurisdiction of the National Labor Relations
Board. San Diego Building Trades Council v. Garmon,
359 U.S. 236, 244 (1959). “When it is clear or may
fairly be assumed that the activities which a State purports
to regulate are protected by § 7 of the National Labor
Relations Act, or constitute an unfair labor practice under
§ 8, due regard for the federal enactment requires that
. . . jurisdiction must yield [to the National Labor
Relations Board].” Garmon, 359 U.S. at 244.
Plaintiffs' claim - that they were terminated for
refusing to discipline employees in violation of the CBA and
the NLRA - is subject to § 8 of the NLRA. Although
supervisors are generally not protected under the NLRA,
“a supervisor does have a viable claim under
the NLRA when terminated or otherwise disciplined for
refusing to commit unfair labor practices.”
Lewis v. Whirlpool Corp., 630 F.3d 484, 488
(6th Cir. 2011) (emphasis in original).
Lewis, the plaintiff alleged that he was terminated
for refusing to commit an unfair labor practice. His
complaint stated a cause of action for wrongful termination
in violation of public policy. The Sixth Circuit held that
the wrongful termination claim was preempted by the NLRA. The
court noted that the wrongful termination claim was identical
to a claim the plaintiff could bring before the NLRB - that
he was terminated for refusing to commit an unfair labor
practice. If a state cause of action is
“identical” to a claim that could have been made
to the Board, “the Board has exclusive
jurisdiction” and “our analysis need go no
further, as preemption is required.” Lewis,
630 F.3d at 489.
wrongful termination claim is identical to one they could
have brought before the NLRB. “The sole and dispositive
inquiry for both claims is whether [Plaintiffs were]
terminated for the failure to commit unfair labor practices,
as defined by the NLRA.” Id. Plaintiffs'
wrongful termination claim is based on the allegation that
Plaintiffs were discharged for refusing to commit an unfair
labor practice. Because it is identical to a claim that could
have been brought before the NLRB, Plaintiffs' wrongful
termination claim is preempted and this court lacks subject
matter jurisdiction over Plaintiffs' complaint.
Id. at 489-90.
IT IS HEREBY ORDERED that Defendant's motion to dismiss
Plaintiffs' complaint is GRANTED, ...