Frohnapfel et al v. Arcelormittal USA LLC et al
Filing
31
ORDER DENYING DEFENDANTS' MOTION TO DISMISS: Denying 7 Motion to Dismiss; LIFTING STAY; and Vacating 25 Scheduling Order; Parties are to meet by 5/15/15 and present Rule 26 Meeting Report by 5/29/2015. Signed by District Judge John Preston Bailey on 4/22/15. (soa)
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF WEST VIRGINIA
WHEELING
WILLIAM FROHNAPFEL, et al.,
Plaintiffs,
v.
Civil Action No. 5:14-CV-45
(BAILEY)
ARCELORMITTAL WEIRTON LLC, et al.,
Defendants.
ORDER DENYING DEFENDANTS’ MOTION TO DISMISS
Presently pending before this Court is Defendants ArcelorMittal Weirton LLC (“AM
Weirton”) and ArcelorMittal USA LLC’s Motion to Dismiss [Doc. 7], filed April 11, 2014. By
Order entered July 7, 2014, this Court referred a question of law to the Supreme Court of
Appeals of West Virginia, deferred ruling on other issues and stayed this case pending
resolution of the certified issue of law [Doc. 30]. This Court, now having the benefit of the
West Virginia Supreme Court’s decision will deny the Motion.
I.
Background
This action arises from plaintiff1 William Frohnapfel’s allegedly unlawful termination
from his employment with AM Weirton, a tin plate manufacturer located in Weirton, West
Virginia.2 At the time of his termination, plaintiff’s employment was governed by a collective
bargaining agreement between his union, the United Steel, Paper and Forestry, Rubber
1
Throughout this opinion, this Court’s use of the word “plaintiff” refers to Mr. Frohnapfel.
2
The following facts are summarized from plaintiff’s Complaint. See [Doc. 1-1].
1
Manufacturing, Energy, Allied Industrial and Service Workers International Union, and
defendant ArcelorMittal USA, AM Weirton’s parent company. See [Doc. 8-1].
Prior to his termination, plaintiff worked as a Technician II Operator in AM Weirton’s
Environmental Control/Utilities Department.
Plaintiff’s department was charged with
overseeing B-Outfall, a portion of AM Weirton’s manufacturing operation located on the
Ohio River. B-Outfall discharges hazardous byproducts from its manufacturing process
directly into the Ohio River. As such, B-Outfall is governed by a permit issued under the
West Virginia Water Pollution Control Act (“WPCA”), W.Va. Code §§ 22-11-1 et seq., which
regulates the discharge of hazardous materials at B-Outfall, imposes environmental
monitoring obligations upon defendants, and requires defendants to report to the West
Virginia Department of Environmental Protection (“WVDEP”) regarding discharges at BOutfall.
According to plaintiff, defendants “viewed him as a watch dog for environmental
compliance and a potentially dangerous whistleblower in regard to environmental
violations.” Plaintiff alleges he repeatedly brought violations of defendants’ WPCA permit
to defendants’ attention and on one occasion reported a violation to the WVDEP, causing
defendants to take increasingly punitive adverse actions against him and ultimately
resulting in his termination. Specifically, plaintiff alleges that:
•
In February 2009, plaintiff complained to management after being instructed to
“scrape labels off barrels and replace them with new labels due to expiration issues”;
•
In March 2009, plaintiff informed management that a probe was being placed in a
buffer in order to conceal certain PH issues;
•
In June 2010, plaintiff truthfully responded to an inquiry from the WVDEP concerning
2
the dumping of hazardous waste and was thereafter “summoned to the Office of the
Defendants’ highest ranking management official located in Weirton”;
•
In November 2010, plaintiff complained regarding the inadequacy of hazardous
material incident training, and was thereafter “chastised,” “disciplined,” and
disqualified from receiving a promotion;
•
In January 2011, plaintiff expressed concern regarding the lack of a containment
area for “Prussian Blue,” a hazardous waste; and
•
In June 2012, plaintiff questioned a third-party vendor’s practices associated with
the removal of hazardous waste and was thereafter harshly disciplined and
temporarily suspended from work.
The events immediately preceding plaintiff’s termination occurred in April 2013.
Early that month, a piece of machinery used at B-Outfall broke down. Because the
unusable machinery was causing hazardous waste to accumulate at B-Outfall, a group of
employees, including plaintiff, developed a plan to repair the piece of machinery. The
group asked plaintiff to present their plan to management. Plaintiff did so, but was
informed by management that a different plan to fix the machinery was already in place.
Later, while telling the other employees what had transpired, plaintiff remarked, apparently
in reference to management, that “opinions are like assholes, everybody has one, some
people have two.” Unbeknownst to plaintiff, a nearby open microphone broadcast his
remark throughout the entire Environmental Control/Utilities Department. Following the
accidental broadcast, defendants suspended plaintiff, and a few days later, on April 18,
2013, terminated plaintiff’s employment.
Plaintiff filed a grievance contesting his termination in accord with procedures set
3
forth in the collective bargaining agreement governing his employment. The grievance,
which does not pursue the cause of action asserted in this lawsuit, is presently scheduled
for arbitration.
On February 26, 2014, plaintiff and his wife initiated this action by filing their
Complaint in the Circuit Court of Hancock County, West Virginia, alleging one count of
state-law retaliatory discharge and one count of loss of consortium.3 Defendants thereafter
removed the case to this Court, invoking this Court’s diversity jurisdiction. See 28 U.S.C.
§ 1332. The instant Motion to Dismiss followed.
II.
Legal Standard
A.
Fed. R. Civ. P. 12(b)(1)
In general, a defendant’s jurisdictional challenge under Rule 12(b)(1) can take one
of two forms: factual or facial. Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009).
A factual challenge attacks the truth-in-fact of the plaintiff’s jurisdictional allegations. Id.
A facial challenge, by contrast, attacks the legal sufficiency of the plaintiff’s jurisdictional
allegations. Id. Where the defendant—as defendants have done in this case4—mounts
3
A loss of consortium claim is derivative of the underlying tort claim; thus, if Mr.
Frohnapfel’s retaliatory discharge claim fails, Mrs. Frohnapfel’s loss of consortium claim
fails as well. See State ex rel. Smalls v. Clawges, 231 W.Va. 301, 745 S.E.2d 192 (2013)
(explaining that a loss of consortium claim is merely incidental to a primary cause of action).
4
Defendants bring their Motion to Dismiss exclusively pursuant to Rule 12(b)(6). See [Doc.
7 at 1]. Defendants’ claim that plaintiff’s cause of action is subject to Garmon preemption,
however, is a challenge to this Court’s subject matter jurisdiction, as where a claim is
preempted under Garmon, federal courts must defer to the exclusive jurisdiction of the
National Labor Relations Board. See, e.g., Lontz v. Tharp, 413 F.3d 435, 442 (4th Cir.
2005) (citing San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245 (1959)).
Defendants’ motion is therefore properly characterized as raising both Rule 12(b)(1) and
Rule 12(b)(6) grounds for dismissal, and this Court will construe it accordingly. See, e.g.,
Trollinger v. Tyson Foods, Inc., 370 F.3d 602, 606 (6th Cir. 2004) (defendant moved to
4
a facial challenge under Rule 12(b)(1), the plaintiff is afforded the same procedural
protections he would receive under Rule 12(b)(6): all facts alleged in the complaint are
taken as true, and all reasonable inferences are drawn in the plaintiff’s favor. See id.
(citing Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). Consequently, to avoid
dismissal on a facial Rule 12(b)(1) challenge, plaintiff’s complaint must contain “sufficient
factual matter . . . to ‘state a claim to relief that is plausible on its face.’” See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).
B.
Fed. R. Civ. P. 12(b)(6)
To state a claim for relief, a pleading must contain “a short and plain statement of
the claim showing the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). In evaluating
a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court accepts all well-pled
facts in the complaint as true and construes those facts in the light most favorable to the
plaintiff. Iqbal, 556 U.S. at 678–79; Adcock v. Freightliner LLC, 550 F.3d 369, 374 (4th
Cir. 2008). Legal conclusions, recitations of the elements of a cause of action, and bare
assertions devoid of further factual enhancement do not constitute well-pled facts for Rule
12(b)(6) purposes. See Iqbal, 556 U.S. at 678.
Ultimately, a complaint must contain “sufficient factual matter . . . to ‘state a claim
to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial
plausibility is established where the facts alleged in the complaint “allow[ ] the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Id. This
dismiss under Rule 12(b)(1), arguing Garmon preemption).
5
context-specific test does not require “detailed factual allegations,” but the complaint must
produce an inference of liability strong enough to nudge the plaintiff’s claims “across the
line from conceivable to plausible.” Twombly, 550 U.S. at 555, 570. A court ruling on a
motion to dismiss may consider any documents integral to and relied on in the complaint,
regardless of whether those documents are actually attached to the complaint. See Am.
Chiropractic Ass’n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004).
III.
Discussion
Defendants argue that plaintiff’s Complaint must be dismissed for three reasons:
first, because this Court lacks subject matter jurisdiction5 as plaintiff’s claim is subject to
preemption by the National Labor Relations Act (“NLRA”), 29 U.S.C. §§ 151 et seq., also
known as Garmon preemption; second, because plaintiff’s claim is preempted by § 301 of
the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185(a), and, properly
characterized as a § 301 claim, must be dismissed for failure to exhaust; and third,
because plaintiff has failed to state a claim for retaliatory discharge as defined by Harless
v. First National Bank, 162 W.Va. 116, 246 S.E.2d 270 (1978), as plaintiff’s Complaint
neither satisfies federal pleading standards nor alleges a substantial West Virginia public
policy upon which his Harless claim may be predicated.
Plaintiff responds that neither form of preemption applies, and that his Harless claim
is properly founded upon the substantial West Virginia public policy set forth in the WPCA.
As this matter presented a novel question of West Virginia law—whether West Virginia
recognizes a claim for Harless retaliatory discharge founded upon the WPCA— this Court
5
See supra note 3.
6
certified the question to the Supreme Court of Appeals of West Virginia. As briefly
discussed below, this Court further finds that adjudicating the applicability of either
preemption doctrine would be premature, as both preemption analyses require a close
examination of the underlying cause of action. As such, this Court deferred ruling upon
defendants’ Motion and stayed this action pending final decision on the certified question.
A.
Garmon Preemption
Garmon preemption, which takes its name from the Supreme Court’s explanation
of the doctrine in San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245
(1959), divests both state and federal courts of jurisdiction over labor disputes involving
employee conduct arguably protected or prohibited by the NLRA. Lontz v. Tharp, 413
F.3d 435, 442 (4th Cir. 2005). Jurisdiction over such disputes is vested exclusively in the
National Labor Relations Board, with the goal of ensuring uniformity in the construction of
federal labor law and preventing the frustration of national labor policy. Garmon, 359 U.S.
at 242.
Garmon preemption is inapplicable, however, when the employee conduct at issue
“is only a peripheral concern of the NLRA” or “touches on interests so deeply rooted in local
feeling and responsibility that, in the absence of compelling congressional direction, it could
not be inferred that Congress intended to deprive the State of the power to act.”
Richardson v. Kruchko & Fries, 966 F.2d 153, 156 at n.* (4th Cir. 1992) (quoting Local
926, Int’l Union of Operating Eng’rs, AFL-CIO v. Jones, 460 U.S. 669, 676 (1983)). The
question whether a state’s regulation of conduct should be allowed because of the deeply
rooted nature of the state interest “involves a sensitive balancing of any harm to the
7
regulatory scheme established by Congress . . . and the importance of the asserted cause
of action to the state as a protection to its citizens.” Jones, 460 U.S. at 676 (emphasis
added).
Because a complete analysis of the applicability of Garmon preemption to this case
involves a careful balancing of the regulatory scheme created by the NLRA with the
importance of plaintiff’s cause of action to West Virginians—and, particularly with respect
to the potential applicability of the “deeply rooted” exception, necessitates an examination
of the public policy supporting plaintiff’s claim—this Court found that a ruling on the
Garmon issue at that time would have been premature. This Court therefore deferred
resolution of the Garmon preemption question until such time as the Supreme Court of
Appeals of West Virginia renders a final decision on the question of law certified.
B.
Labor Management Relations Act § 301 Preemption
Section 301 of the LMRA preempts state law wherever resolution of a state-law
employment claim turns upon construction of a CBA or is “inextricably intertwined with
consideration of [its] terms.” Foy v. Giant Food Inc., 298 F.3d 284, 287 (4th Cir. 2002)
(citing Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 209 (1985)). Because “it is the legal
character of a claim, as ‘independent’ of rights under the collective-bargaining agreement
(and not whether a grievance arising from precisely the same set of facts could be
pursued)” that determines whether a claim is preempted, Livadas v. Bradshaw, 512 U.S.
107, 123–24 (1994) (internal citations omitted), “the preemptive effect of § 301 depends
upon the elements of the purported state-law claim.” Childers v. Chesapeake & Potomac
Tel. Co., 881 F.2d 1259 (4th Cir. 1989). Stated differently, “a colorable state-law cause of
8
action is a predicate to a § 301 preemption claim.” Washington v. Union Carbide Corp.,
870 F.2d 957, 959 (4th Cir. 1989).
Prior to receipt of the resolution of the certified question, it was not yet clear whether
plaintiff had alleged a colorable state-law cause of action. This Court found it would be
speculative to rule on the applicability of § 301 preemption at that time. Cf. Childers, 881
F.2d at 1262 (holding that where a complaint plainly fails to state a cause of action under
state law, it is within the district court’s discretion to dismiss the cause of action entirely).
Accordingly, this Court deferred resolution of the § 301 preemption question until such time
as the Supreme Court of Appeals of West Virginia rendered a final decision on the question
of law certified.
C.
Viability of Plaintiff’s Harless Retaliatory Discharge Claim
Defendants argue that plaintiff’s retaliatory discharge claim must be dismissed for
two reasons: first, because plaintiff’s Complaint fails to satisfy federal pleading standards,
and second, because plaintiff’s Harless claim cannot be predicated upon the WPCA. This
Court found that plaintiff’s Complaint meets federal pleading standards, and certified the
question whether the WPCA can support plaintiff’s Harless claim to the Supreme Court of
Appeals of West Virginia.
West Virginia’s tort of retaliatory discharge evolved as an exception to the rule that
an employer may terminate an at-will employee6 at any time. Swears v. R.M. Roach &
6
There appears to be no dispute as to whether plaintiff is an at-will employee. This Court
notes that at least one circuit court has found that an employee whose employment is
governed by a collective bargaining agreement that provides a “proper cause” termination
guarantee and arbitral remedies is not an at-will employee, and is thus not entitled to
maintain a retaliatory-discharge tort claim. See Lamb v. Briggs Mfg., a Div. of Celotex
9
Sons, Inc., 225 W.Va. 699, 703–04, 696 S.E.2d 1, 5–6 (2010) (citing Wright v. Standard
Ultramarine & Color Co., 141 W.Va. 368, 90 S.E.2d 459 (1955)) (describing the evolution
of the tort). The tort was first carved out in Harless v. First National Bank, where the
Supreme Court of Appeals of West Virginia held that “where the employer’s motivation for
the discharge is to contravene some substantial public policy principle, then the employer
may be liable to the employee” notwithstanding the general at-will termination rule. Syl.,
162 W.Va. 116, 246 S.E.2d 270 (1978) (emphasis added).
Thus, a Harless retaliatory discharge claim cannot lie absent a substantial West
Virginia public policy allegedly violated in terminating the employee. The determination
whether a substantial public policy exists is a question of law for the court. Page v.
Columbia Natural Res., 198 W.Va. 378, 384, 480 S.E.2d 817, 823 (1996). Although
courts may look to “established precepts in [the West Virginia] constitution, legislative
enactments, legislatively approved regulations, and judicial opinions” in determining
whether a substantial public policy exists, Birthisel v. Tri-Cities Health Servs. Corp., 188
W.Va. 371, 377, 424 S.E.2d 606, 612 (1992), Harless retaliatory discharge claims “are
generally based on a public policy articulated by the legislature.” Swears, 225 W.Va. at
704 (citing Shell v. Metro. Life Ins. Co., 183 W.Va. 407, 413, 396 S.E.2d 174, 180 (1990)).
Importantly, the public policy relied upon must not only exist—it must be substantial.
Feliciano v. 7-Eleven, Inc., 210 W.Va. 740, 745, 559 S.E.2d 713, 718 (2001).
Additionally, “[i]nherent in the term ‘substantial public policy’ is the concept that the
Corp., 700 F.2d 1092, 1093–94 (7th Cir. 1983) (construing Illinois law). This Court has
found no West Virginia authority addressing the question.
10
policy will provide specific guidance to a reasonable person”: the public policy must provide
fair notice as to what conduct is or is not prohibited. Kanagy v. Fiesta Salons, 208 W.Va.
526, 530, 541 S.E.2d 616, 620 (2000) (quoting Syl. pt. 3, Birthisel, 188 W.Va. at 377). In
other words, “[a]n employer should not be exposed to liability where a public policy
standard is too general to provide any specific guidance or is so vague that it is subject to
different interpretations.” Birthisel, 188 W.Va. at 377.
In certifying the issue to the West Virginia Supreme Court, this Court noted that
there is a strong argument that the WPCA articulates a public policy sufficient to support
a Harless retaliatory discharge claim. The WPCA sets forth a specific public policy:
maintaining “reasonable standards of purity and quality” of West Virginia water. W.Va.
Code § 22-11-2. That public policy was articulated by the West Virginia legislature. See
Swears, 225 W.Va. at 704 (noting that most West Virginia retaliatory discharge cases are
predicated upon a statement of public policy by the West Virginia legislature).
In
furtherance of that public policy, the Act regulates manufacturers’ ability to discharge
hazardous material into West Virginia waterways by issuing permits, and noncompliance
with a permit subjects a violator to heavy civil fines and potential criminal penalties. See
id. at §§ 22-11-8(b)(4), -22(a), -24(a). Moreover, while the statement of public policy is
itself broad, the requirements imposed upon employers who hold permits issued pursuant
to the WPCA provide specific guidance as to permitted and prohibited conduct. See
Kanagy, 208 W.Va. at 530 (citing Birthisel, 188 W.Va. at 377) (recognizing that an
employer should not be exposed to liability where a public policy standard is vague).
Finally, the purpose of the Act could be frustrated if employees who reported violations of
11
the Act to environmental authorities and were terminated for doing so were left without a
remedy.
In making the certification, this Court noted that the Fourth Circuit, however, has
specifically declined to expand the Harless cause of action by recognizing novel theories
of substantial public policy absent a clear statement from the Supreme Court of Appeals
of West Virginia. Tritle v. Crown Airways, Inc., 928 F.2d 81, 84–85 (4th Cir. 1990)
(refusing to recognize plaintiff’s novel theory and noting that the case “illustrates one of the
tremendous drawbacks of federal diversity jurisdiction”).
Since Tritle, several courts in this Circuit have certified questions concerning novel
bases for Harless retaliatory discharge claims to the Supreme Court of Appeals of West
Virginia. See, e.g., Kanagy, 208 W.Va. at 527 (answering certified question from the
United States District Court for the Southern District of West Virginia); Lilly v. Overnight
Transp. Co., 188 W.Va. 538, 538–39, 425 S.E.2d 214, 214–15 (1992) (answering certified
question from the Fourth Circuit). As the Supreme Court of Appeals of West Virginia has
not yet confronted the question whether the WPCA articulates a substantial public policy
such that it may form the basis of a Harless retaliatory discharge claim, this Court certified
the issue to the West Virginia Supreme Court.
In an Opinion issued April 10, 2015, the Supreme Court of Appeals of West Virginia
issued its opinion answering this Court’s certified question and finding that “the West
Virginia Water Pollution Control Act establishes a substantial public policy for purposes of
undergirding a policy-based retaliatory discharge claim where an employee is allegedly
discharged for reporting violations of a permit issued under that Act and making complaints
12
to his employer about those permit violations.” Frohnapfel v. Arcelormittal USA LLC,
W.Va.
,
S.E.2d
, 2015 WL 1720982 (W.Va. April 10, 2015).
Syllabus point 5 of the Opinion states “An employee who alleges he or she was
discharged for reporting violations of a permit issued under authority of the West Virginia
Water Pollution Control Act, W.Va. Code §§ 22–11–1 to –30 (2014), and making complaints
to his/her employer about those permit violations, has established the predicate substantial
public policy required to prima facie prove that the employer's motivation for the discharge
was the contravention of public policy. See Harless v. First Nat'l Bank, 162 W.Va. 116,
246 S.E.2d 270 (1978).”
The answer to the certified question certainly resolves one of the three bases
articulated to support the motion to dismiss. A plaintiff may predicate a Harless claim on
the WPCA.
With respect to the asserted § 301 preemption, the Supreme Court in Lingle v.
Norge Div. of Magic Chef, Inc., 486 U.S. 399, held that an application of state law is preempted by § 301 only if such application requires the interpretation of a collective
bargaining agreement.
The Magic Chef Court also reviewed the elements of a retaliatory discharge claim
and determined that proof of none of the elements turned upon the interpretation of the
collective bargaining agreement. In West Virginia, the elements of a retaliatory discharge
claim are (1) that the plaintiff engaged in protected activity; (2) that the defendant was
aware of the protected activities; (3) that the plaintiff was subsequently discharged and
(absent other evidence tending to establish a retaliatory motivation); (4) that plaintiff's
13
discharge followed his or her protected activities within such period of time that the court
can infer retaliatory motivation. CSX Transp. v. Smith, 229 W.Va. 316, 343, 729 S.E.2d
151, 178 (2012).
As in Magic Chef, none of these elements require contractual
interpretation. None of the elements turn on the meaning of a contractual provision.
In Martin Marietta Corp. v. Maryland Comm. on Human Relations, 38 F.3d 1392
(4th Cir. 1994), the Fourth Circuit, discussing Magic Chef, said:
In Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399 (1988), the Court
found that a unionized employee's state law suit alleging retaliatory discharge
for filing a workers' compensation claim was not preempted, because the
state law remedy was “independent” of the CBA, in that “resolution of the
state-law claim does not require construing the collective bargaining
agreement.” Id. at 407 (footnote omitted). The Court also held that even if
dispute resolution under a CBA and under state law would require analysis
of the identical set of facts, the claim is still considered to be “independent”
of the CBA, if it can be resolved without interpreting the agreement. Id. at
409–10.
38 F.3d at 1397-98.
The Fourth Circuit also discussed at length the Sixth Circuit’s decision in Smolarek
v. Chrysler Corp., 879 F.2d 1326 (6th Cir.) (en banc), cert. denied, 493 U.S. 992 (1989),
noting that the Sixth Circuit “focused on the point that to establish the retaliatory discharge
claim at issue, the court must review purely factual questions pertinent to the conduct of
the employee and the conduct and motivation of the employer, neither of which
14
necessitates interpretation of CBA terms. 879 F.2d at 1331 (citing Lingle, 486 U.S. at
407).” 38 F.3d at 1402.
Similarly, Judge Stamp, in Goddard v. Brand Scaffold Rental & Erection of
Pittsburgh, PA, 2008 WL 4889618 (N.D. W.Va. November 12, 2008), stated:
This Court is not persuaded by Brand Scaffold's argument that the plaintiff's
claims are preempted by the LMRA. Section 301 of the LMRA authorizes
federal courts to hear suits for violations of contracts between an employer
and a labor organization or between labor organizations. 29 U.S.C. § 185(a).
This section also directs the federal courts to fashion a body of federal
common law resolving labor disputes and preempts any claims under state
law which require the interpretation of a collective bargaining agreement.
See Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 413 (1988).
However, “not every dispute concerning employment or tangentially involving
a provision of a collective-bargaining agreement, is preempted by § 301 or
other provisions of the federal labor law.” Allis–Chalmers Corp. v. Lueck,
471 U.S. 202, 211 (1985).
Only if a state law claim is “inextricably
intertwined with consideration of the terms of the labor contract” is the claim
preempted. Id. at 213. “[W]hen the meaning of contract terms is not the
subject of dispute, the bare fact that a collective-bargaining agreement will
be consulted in the course of state-law litigation plainly does not require the
claim to be extinguished.” Livadas v. Bradshaw, 512 U.S. 107, 124 (1994).
2008 WL 4889618 at *2.
15
Since resolution of the plaintiff’s retaliatory discharge claim will not require
interpretation of the collective bargaining agreement, there is no § 301 preemption.
The final ground asserted by the defendant in seeking dismissal is Garmon
preemption. As explained in Domnister v. Exclusive Ambulette, Inc., 607 F.3d 84 (2d
Cir. 2010):
In Garmon, the Supreme Court held that “[w]hen an activity is arguably
subject to [§ ]7 or [§ ]8 of the [NLRA], the States as well as the federal courts
must defer to the exclusive competence of the National Labor Relations
Board.” 359 U.S. at 245. Garmon preemption presents an issue of law
which we review de novo. See Healthcare Ass'n of N.Y. State, Inc. v.
Pataki, 471 F.3d 87, 94 (2d Cir. 2006). We “begin by identifying whether any
specific provision of sections 7 or 8 of the NLRA actually or arguably prohibits
or protects the conduct that is the subject of [the action]. Next, we must
decide whether the controversy is identical to one that the aggrieved party
could bring (or induce its adversary to bring) before the NLRB.” Id. at 96.
Broadly stated, sections 7 and 8 govern “concerted activities” and
“unfair labor practices,” respectively. Bldg. Trades Employers' Educ. Ass'n
v. McGowan, 311 F.3d 501, 508 (2d Cir. 2002). Section 7 protects workers'
rights to engage in concerted activity, while Section 8 makes it an unfair labor
practice for an employer to violate the rights outlined in § 7 as well as “to
discharge or otherwise discriminate against an employee because he has
filed charges or given testimony” about an unfair labor practice. 29 U.S.C.
16
§§ 157, 158(a).
607 F.3d at 89.
“In order to fall under Section 8 of the NLRA, plaintiffs must be alleging that they
were retaliated against on the basis of having engaged in ‘concerted protected activity.’
Concerted protected activity, as defined by Section 7, requires ‘that an employee's action
be taken for purposes of collective bargaining or other mutual aid or protection.’ NLRB v.
City Disposal Sys. Inc., 465 U.S. 822, 830 (1984) (internal quotation marks omitted).” Id.
“The federal court of last resort has dealt with the outer limit of NLRA's preemption
on many occasions. Its penultimate case addressing the doctrine's application is San
Diego Building Trades Council, Etc. v. Garmon. There, the Court developed the
standards for gauging the preemptive effect of the NLRA. If an activity is arguably
protected or prohibited by the NLRA, state regulation of that activity must yield, but state
statutes may nonetheless be sustained if the conduct in question (1) is only of peripheral
concern to the congressional purpose in enacting the NLRA or (2) touches interests ‘deeply
rooted’ in local feeling and responsibility.
“As with most legal gauges, the Garmon test is much easier to articulate than to
apply. The very Court that sired it has candidly stated that confusion in charting the
boundary of the NLRA preemption sweep might be the result of its own pronouncements
which apply the Garmon-fashioned criteria.” Dority v. Green Country Castings Corp.,
727 P.2d 1355, 1358 (Okla. 1986), citing Amalgamated Ass'n of St., E.R. & M.C. Emp.
v. Lockridge, 403 U.S. 274, 286 (1971) (footnotes omitted).
In Williams v. Watkins Motor Lines, Inc., 310 F.3d 1070 (8th Cir. 2002), the Eighth
17
Circuit considered what constituted concerted activity within the meaning of 29 U.S.C. §
157, thus precluding review by the district court. “The National Labor Relations Act gives
employees the right to engage in concerted activities for the purposes of mutual aid and
protection. 29 U.S.C. § 157. This language contemplates a context where employees are
organizing or have organized, and need to be protected from retaliatory measures by their
employer. 29 U.S.C. § 102.” 310 F.3d at 1071-72.
“The NLRA is silent as to what precisely constitutes ‘concerted activity.’ N.L.R.B.
v. City Disposal Systems, Inc., 465 U.S. 822, 831 (1984).” Id. at 72.
“NLRA preemption analysis has developed into two distinct doctrines, which are
commonly referred to as Garmon and Machinists7 preemption. Thunderbird Mining Co.
v. Ventura, 138 F.Supp.2d 1193, 1196 (D. Minn. 2001). Garmon preemption, which the
appellees suggest is applicable here, ‘protects the jurisdiction of the National Labor
Relations Board ... by displacing state jurisdiction over conduct which is “arguably within
the compass of § 7 or § 8 of the Act.”’ Id. (quoting St. Thomas-St. John Hotel & Tourism
Assoc. v. United States Virgin Islands, 218 F.3d 232, 239 (3rd Cir. 2000)). The Garmon
doctrine supports the theory that Congress has an overriding interest in nationally uniform
application of the NLRA, rather than in protecting particular conduct of private bargaining
parties. St. Thomas, 218 F.3d at 239.” Id.
“One component of protected concerted activity is ‘concertedness.’ Calvin Sharpe,
“By Any Means Necessary”-Unprotected Conduct and Decisional Discretion Under the
7
Lodge 76, Int' Ass'n of Machinists and Aerospace Workers v. Wisconsin
Employment Relations Comm'n, 427 U.S. 132 (1976).
18
National Labor Relations Act, 20 Berkeley J. Emp. & Lab. L. 203, 207-8 (1999). This
component requires some sort of group activity; individuals acting on their own behalf are
not engaged in concerted activity. Id. The issue has been raised whether actions taken
individually, but presumed to be of interest and benefit to other employees, should be
considered concerted activity under a ‘constructive concerted activity’ theory. NLRB v.
City Disposal Systems, Inc., 465 U.S. 822 (1984). The NLRB, however, does not
recognize such individual activity as concerted.8” Id.
In Williams, the Eighth Circuit dealt with an over the road truck driver who refused
to accept a load that exceeded state weight limits and was terminated. The Eighth Circuit
said that it had no reason to describe adherence to applicable law as concerted activity.
Id. at 1073.
Despite the defendant’s efforts to attempt to characterize Mr. Frohnapfel’s concern
over water quality and adherence to West Virginia’s water quality laws as concerted
activity, this Court simply cannot agree. While the defendant points out that Frohnapfel
was asked to take action on behalf of other employees to address hazardous and unsafe
conditions and to eliminate ongoing violations of the NPDES Permit and contends that this
constitutes concerted activity, the fact remains that the plaintiff, assuming his allegations
are true (as we must), was attempting to protect the environment and to remedy hazardous
conditions at the plant.
This is conduct which is only a peripheral concern to the
8
In a NLRB decision involving a single employee who resisted driving an unsafe truck, the
NLRB rejected the claim that such activity was “concerted,” even though the employee was
asserting contractual rights. See Meyers Indus. Inc., 281 NLRB 882 (1986).
19
congressional purpose in enacting the NLRA and touches interests ‘deeply rooted’ in local
feeling and responsibility. As noted by the West Virginia Supreme Court, protection of
West Virginia’s waterways and water supply are of substantial importance to the citizens
of this state. Accordingly, this Court finds that the defendant’s last argument also fails to
support dismissal.
CONCLUSION
Defendants ArcelorMittal Weirton LLC (“AM Weirton”) and ArcelorMittal USA LLC’s
Motion to Dismiss [Doc. 7], filed April 11, 2014, is DENIED.
In light of the above, the previously-imposed stay is hereby ORDERED LIFTED. In
addition, the May 21, 2014, Scheduling Order [Doc. 25] is hereby VACATED, and the
parties are further ORDERED pursuant to Fed. R. Civ. P. 16(b) and 26(f) to meet in person
or by telephone on or before May 15, 2015, to discuss scheduling deadlines. Thereafter,
the parties shall submit to this Court a written report on the results of the initial planning
meeting and a completed Scheduling Order Checklist, which is attached hereto, on or
before May 29, 2015. Upon receipt of the meeting report, a Scheduling Order will issue.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to counsel of record herein
along with copies of this Court’s Scheduling Order Checklist.
20
DATED: April 22, 2015.
21
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
______________________
Plaintiff(s),
v.
Civil Action No. __________
______________________
Defendant(s).
SCHEDULING ORDER CHECKLIST
ATTORNEYS
1. INTERMEDIATE PRETRIAL CONFERENCE
2. MEDIATION
Before -
3. JOINDER AND AMENDMENTS
4. EXPERT DISCLOSURE
a. With Burden
b. Without Burden
5. EXAMINATION/INSPECTIONS
6. DISCOVERY COMPLETION
7. DISPOSITIVE MOTIONS
Responses
Replies
22
8. PRETRIAL DISCLOSURES, FED R. CIV PRO 26(a) 3
a. Objections
9. JURY INSTRUCTIONS, VOIR DIRE and VERDICT FORMS
a. Objections
10. MOTIONS IN LIMINE
a. Objections
11. BIOGRAPHICAL SKETCHES
12. JOINT FINAL PRETRIAL CONFERENCE ORDER
13. FINAL PRETRIAL CONFERENCE
14. Trial
(If non-jury trial, Proposed Findings of Fact
and Conclusions of Law are to be filed with Court
and opposing counsel _______________)
23
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