647 S.E2d 718
| Paul J. Harris, Esq.|
Wheeling, West Virginia
Attorney for the Appellants
| John R. Merinar, Jr., Esq.
Steptoe & Johnson
Clarksburg, West Virginia
Mario R. Bordogna, Esq.
Monte L. Williams, Esq.
Steptoe & Johnson
Morgantown, West Virginia
Attorneys for the Appellees
Upon appeal, the United States Court of Appeals for the Fourth Circuit vacated
the ruling of the District Court and held that the question of preemption was for the Circuit
Court of Ohio County, West Virginia, to decide, rather than the District Court. Lontz v.
Tharp, 413 F.3d 436 (4th Cir. 2005). In so ruling, the Court of Appeals observed that removal
to District Court is appropriate: (1) where there is diversity of citizenship, (2) where the
complaint reveals a federal question essential to the plaintiff's cause of action or (3) where
the complete preemption doctrine displaces state-law claims in a federally regulated area,
such as in matters of federal concern under the Employee Retirement Income Security Act and
the National Bank Act. 413 F.3d at 441. Focusing on complete preemption, the Court of
Appeals stated that the sine qua non of the doctrine is a pre-existing federal cause of action
that can be brought in the district courts. 413 F.3d at 442.
Applying those principles herein, the Court of Appeals in Lontz determined that, although the wrongful discharge action involves ostensible violations of sections 7 and 8 of the National Labor Relations Act, 29 U.S.C. § 157 (1947) and 29 U.S.C. § 158 (1974), those sections do not, in themselves, create jurisdiction in the federal courts. (See footnote 4) Thus, removal to the
District Court under the complete preemption doctrine was error, and the proper forum to decide the question of preemption was the Circuit Court of Ohio County. See State ex rel. Orlofske v. City of Wheeling, 212 W. Va. 538, 543, 575 S.E.2d 148, 153 (2002) (indicating that when a state proceeding presents a preemption issue the proper course is to seek resolution of that issue by the state court). As the Court of Appeals made clear: Even though their ordinary preemptive power is great, sections 7 and 8 do not on their own terms confer federal jurisdiction and therefore cannot be the basis of removal through complete preemption. 413 F.3d at 444. Consequently, the Court of Appeals, in Lontz, acknowledged that, even though a defendant might ultimately prove that the action is preempted under the National Labor Relations Act, that does not establish that the action is removable to a federal district court. 413 F.3d at 443.
Upon remand, the Circuit Court conducted a hearing and, pursuant to the order of May 11, 2006, dismissed the appellants' action. (See footnote 5) The Circuit Court concluded that the National Labor Relations Act preempts the plaintiffs' allegations in this case of wrongful and/or constructive discharge because of union activity as set forth in the amended complaint. The dismissal did not include the claim alleged by Lontz under the West Virginia Wage Payment and Collection Act. See, n. 1, supra. This appeal is from the May 11, 2006, order.
Although the Supreme Court indicated in Garmon that not all cases touching on sections 7 and 8 of the Act are preempted, the Court suggested that any doubt should be resolved in favor of the authority of the National Labor Relations Board. Thus, the Court explained:
At times it has not been clear whether the particular activity regulated by the States was governed by § 7 or § 8 or was, perhaps, outside both these sections. But courts are not primary tribunals to adjudicate such issues. It is essential to the administration of the Act that these determinations be left in the first instance to the National Labor Relations Board.
359 U.S. at 244-45, 79 S.Ct. at 779, 3 L.Ed.2d at 783.
Citing Garmon, this Court, in syllabus point 5 of United Maintenance and Manufacturing v. United Steelworkers of America, 157 W. Va. 788, 204 S.E.2d 76 (1974), held: Where a labor dispute is subject to National Labor Relations Board jurisdiction, a state is preempted from acting to enforce private or public rights.
Accordingly, this matter differs from Greenfield v. Schmidt Baking Company, 199 W. Va. 447, 485 S.E.2d 391 (1997), wherein this Court held in syllabus point 4 that the application of State law is preempted by § 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (1947), only if such application requires the interpretation of a collective bargaining agreement. Subsection (a) of § 301 concerns [s]uits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce[,] and the issue in Greenfield was whether the action of the employee against his employer for defamation, invasion of privacy and the intentional infliction of emotional distress were preempted by that federal statute. In contrast, the action now before us involves a consideration of sections 7 and 8 , 29 U.S.C. § 157 (1947), and 29 U.S.C. § 158 (1974), as to which the Garmon preemption specifically applies. Nevertheless, the implication found in Greenfield, that the preemptive effect of federal law should be examined on a case-by-case basis, is helpful in this matter. Greenfield, 199 W. Va at 453, 485 S.E.2d at 397. See also, General Motors Corporation v. Smith, 216 W. Va. 78, 85, 602 S.E.2d 521, 528 (2004).
Here, the appellants allege in their amended complaint that the management at the Holiday Inn Express used both legal and illegal means in an attempt to defeat the employees' efforts to unionize. Lontz alleges that she was constructively discharged because she refused to engage in unlawful conduct to have a union organizer arrested. Pettit alleges that she was wrongfully discharged because she was blamed for commencing union activity. Specifically, Pettit asserts that the appellees engaged in a conspiracy to discharge her based on their belief that she assisted, cooperated and encouraged various employees to participate in union organizing activities. Plainly, those allegations implicate the scope and reach of sections 7 and 8 of the National Labor Relations Act, 29 U.S.C. § 157 (1947), and 29 U.S.C. § 158 (1974), in that they suggest both a violation of the right to form, join or assist labor organizations as protected under section 7 and a violation of section 8 concerning unfair labor practices. Consequently, the allegations of transgressions of State public policy notwithstanding, this Court is of the opinion that the Circuit Court was correct in concluding that the appellants' wrongful discharge action is preempted by the National Labor Relations Act.
Nor is this result altered by the appellants' assertion that they were supervisors at the Holiday Inn Express and, as such, cannot pursue charges before the National Labor Relations Board. Using comparable statutory language, supervisors are excluded from the term employee under both the National Labor Relations Act, 29 U.S.C. § 152(3) (1978), and the West Virginia Labor-Management Relations Act for the Private Sector, W. Va. Code, 21-1A-2(a)(3) (1971). (See footnote 6) It should be noted, however, that the original and amended complaints filed in the Circuit Court do not describe the appellants as supervisors. Rather, those pleadings allege that the appellants were employed at the Holiday Inn Express. Nor did the appellants describe themselves as supervisors in their response in opposition to the motion to dismiss. The response was filed in the Circuit Court following the decision of the Court of Appeals to remand the action to State court.
In the Lontz opinion, however, the Court of Appeals referred to the appellants as hotel supervisors, and they were so described in the earlier charges before the National Labor Relations Board, which charges the appellants withdrew. See, n. 3, supra. Nevertheless, the issue of whether the appellants were supervisors has never been resolved.
In view of the nexus between the appellants' allegations concerning their discharge and sections 7 and 8 of the National Labor Relations Act, this Court concludes that the National Labor Relations Board is the appropriate forum to determine the supervisor issue in the first instance. Garmon, supra. As stated by the appellees: It is for the NLRB to look at the provisions of the NLRA, to perform a factual inquiry into the nature of [the appellants'] responsibilities and then come to a conclusion as to whether they are entitled to the protection of the NLRA.