Berg et al v. Rite Aid of Michigan, Inc. et al
OPINION AND ORDER granting 5 Motion to Dismiss. Signed by District Judge John Corbett O'Meara. (WBar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
PAULA BERG and
Case No. 16-13878
Hon. John Corbett O’Meara
RITE AID SERVICES, LLC,
OPINION AND ORDER GRANTING
DEFENDANT’S MOTION TO DISMISS
Before 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.
Plaintiffs 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.
LAW AND ANALYSIS
Defendant 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 explained:
[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 enactment.
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.
Although 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).
In 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.
Plaintiffs’ 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.
Therefore, IT IS HEREBY ORDERED that Defendant’s motion to dismiss
Plaintiffs’ complaint is GRANTED, consistent with this opinion and order.
s/John Corbett O’Meara
United States District Judge
Date: May 12, 2017
I hereby certify that a copy of the foregoing document was served upon
counsel of record on this date, May 12, 2017, using the ECF system.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?