Adkerson v. MK-Ferguson Co.

• Decision Date: 03 September 1991
• Docket Number: Docket No. 120434,MK-FERGUSON
• Citation: 191 Mich.App. 129,477 N.W.2d 465
• Parties: , 145 L.R.R.M. (BNA) 2544, 58 Empl. Prac. Dec. P 41,401, 3 A.D. Cases 59 Norma June ADKERSON, Independent Personal Representative of the Estate of Billy J.T. Adkerson, Deceased, Plaintiff-Appellant, v.COMPANY, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 465

477 N.W.2d 465

191 Mich.App. 129, 145 L.R.R.M. (BNA) 2544,

58 Empl. Prac. Dec. P 41,401, 3 A.D. Cases 59

Norma June ADKERSON, Independent Personal Representative of the Estate of Billy J.T. Adkerson, Deceased Plaintiff-Appellant, v. MK-FERGUSON COMPANY, Defendant-Appellee.

Docket No. 120434.

Court of Appeals of Michigan.

Submitted Dec. 4, 1990, at Grand Rapids.

Decided Sept. 3, 1991, at 9:15 a.m.

Released for Publication Dec. 16, 1991.

Troff, Petzke & Ammeson by Charles Ammeson, St. Joseph, for plaintiff-appellant.

Butzbaugh & Dewane by John E. Dewane, St. Joseph, for defendant-appellee.

Before SHEPHERD, P.J., and SAWYER and REILLY, JJ.

SHEPHERD, Presiding Judge.

Plaintiff appeals as of right an August 14, 1989, order granting summary disposition to defendant. We reverse.

Plaintiff's decedent was a journeyman carpenter whose union contracted with defendant, a subcontractor, to do repair and replacement work on the steam generator at the D.C. Cook Nuclear Power Plant, which was owned and operated by Indiana Michigan Power Co. After being hired by defendant on May 2, 1988, decedent was required to pass a psychological evaluation, the Minnesota Multiphasic Personality Inventory (MMPI), in order to be granted unescorted status to work in vital areas of the plant. If an employee's MMPI score revealed a risk of substance abuse, he was given a personal evaluation by a psychologist.

According to defendant, decedent's MMPI score was unacceptably high and revealed alcoholic tendencies. The psychologist who later interviewed decedent found that, given the test results' suggestion of alcoholism and decedent's acknowledgment of classic symptoms of alcoholism (though he denied being an alcoholic), there was a "high likelihood" decedent was an alcoholic and therefore should not be granted unescorted-access authorization. Decedent's employment with defendant was thus terminated on May 4, 1988. According to the affidavit filed by decedent, he had previously worked at the Cook Nuclear Plant for more than ten years and, after being discharged by defendant, he worked at another nuclear plant as a carpenter, with unescorted access throughout the plant.

Decedent commenced this action in December 1988, alleging that defendant's termination of his employment, on the basis of the MMPI score and because of a perceived handicap, alcoholism, that was unrelated to his ability to perform his duties as a carpenter, amounted to handicap discrimination in violation of the Handicappers' Civil Rights Act, M.C.L. Sec. 37.1101 et seq.; M.S.A. Sec. 3.550(101) et seq. Defendant thereafter moved for summary disposition, claiming decedent's state law claim was preempted by the Atomic Energy Act, 42 U.S.C. Sec. 2011 et seq., and Sec. 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. Sec. 185. Defendant also asserted that decedent could not factually support his claim because his handicap was related to his ability to perform his job. The subsequent granting of this motion was premised on the trial court's acceptance of defendant's arguments, particularly that of preemption. With regard to this issue, the trial court found that Congress, through the Atomic Energy Act, had intended to remove from state regulation all matters dealing with safety in the construction and operation of nuclear power plants and, because it dealt with safety, the Handicappers' Civil Rights Act was preempted by federal law. Plaintiff, who was substituted for the decedent after his death in August 1989, claims summary disposition was improperly granted on the grounds stated by the trial court. We agree.

The first issue we must address is that of preemption--whether federal law preempted the specific state law in question here under the Supremacy Clause, U.S. Const., art. VI, cl. 2. The circumstances under which state law may be preempted were recently described by the Supreme Court in English v. General Electric Co., 495 U.S. 72, ----, 110 S.Ct. 2270, 2275, 110 L.Ed.2d 65, 74 (1990), as follows:

First, Congress can define explicitly the extent to which its enactments pre-empt state law. See Shaw v Delta Air Lines, Inc., 463 US 85, 95-98 [103 S.Ct. 2890, 2898-2900, 77 L.Ed.2d 490] (1983). Pre-emption fundamentally is a question of congressional intent, see Schneidewind v ANR Pipeline Co., 485 US 293, 299 [108 S.Ct. 1145, 1150, 99 L.Ed.2d 316] (1988), and when Congress has made its intent known through explicit statutory language, the courts' task is an easy one.

Second, in the absence of explicit statutory language, state law is pre-empted where it regulates conduct in a field that Congress intended the Federal Government to occupy exclusively. Such an intent may be inferred from a "scheme of federal regulation ... so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it," or where an Act of Congress "touch[es] a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject." Rice v Santa Fe Elevator Corp, 331 US 218, 230 [67 S.Ct. 1146, 1152, 91 L.Ed. 1447] (1947). Although this Court has not hesitated to draw an inference of field pre-emption where it is supported by the federal statutory and regulatory schemes, it has emphasized: "[W]here ... the field which Congress is said to have pre-empted" includes areas that have "been traditionally occupied by the States," congressional intent to supersede state laws must be " 'clear and manifest.' " Jones v Rath Packing Co, 430 US 519, 525 [97 S.Ct. 1305, 1309, 51 L.Ed.2d 604] (1977), quoting Rice v Santa Fe Elevator Corp, 331 US at 230 [67 S.Ct. 1146, 1152, 91 L.Ed. 1447].

Finally, state law is pre-empted to the extent that it actually conflicts with federal law. Thus, the Court has found pre-emption where it is impossible for a private party to comply with both state and federal requirements, see, e.g., Florida Lime & Avocado Growers, Inc. v Paul, 373 US 132, 142-143 [83 S.Ct. 1210, 1217-1218, 10 L.Ed.2d 248] (1963), or where state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v Davidowitz, 312 US 52, 67 [61 S.Ct. 399, 404, 85 L.Ed. 581] (1941).

See also People v. Hegedus, 432 Mich. 598, 607, n. 10, 443 N.W.2d 127 (1989). Because neither party has argued that there exists express preemption or a conflict between federal and state law, we are concerned here with what is referred to as field preemption.

Under the Atomic Energy Act and the Energy Reorganization Act, 42 U.S.C. Sec. 5801 et seq., the Nuclear Regulatory Commission (NRC) is vested with regulatory and licensing authority over the nuclear field and nuclear facilities. While states retain some power, such as the regulation of electrical utilities with respect to questions of need, reliability, cost, and so forth, the Supreme Court in Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Comm, 461 U.S. 190, 212, 103 S.Ct. 1713, 1726, 75 L.Ed.2d 752 (1983), found that "the Federal Government has occupied the entire field of nuclear safety concerns, except the limited powers expressly ceded to the States." In enacting the Atomic Energy Act, said the Court, Congress intended that only "the Federal Government should regulate the radiological safety aspects involved in the construction and operation of a nuclear plant." Id. at 205, 103 S.Ct. at 1723.

Because of an increasing awareness and concern over substance abuse in the workplace and the particular danger it posed to the public when it occurred in nuclear-power facilities, the NRC published a proposed rule on August 5, 1982, that would have required, in part, that licensees establish and implement fitness for duty (FFD) programs to assure that personnel with unescorted access to protected areas were not under the influence of drugs or alcohol or otherwise unfit for duty. 47 Fed.Reg. 33,980. On August 1, 1984, the NRC published another proposed rule that would have required access-authorization programs for individuals seeking unescorted access to protected areas, as well as a draft regulatory guide, and invited comment thereon. 49 Fed.Reg. 30,72 6. On August 4, 1986, the NRC withdrew the proposed rule, 51 Fed.Reg. 27,87 2, and, instead, issued a policy statement. 51 Fed.Reg. 27,921. In the policy statement, the NRC set forth its "expectations" of licensee programs and what it considered to be an acceptable program's essential elements. The decision whether to promulgate a rule was deferred for a minimum of eighteen months to further encourage initiatives that had been taken by the industry, including the Nuclear Utility Management and Resources Committee (an agency composed of representatives from each utility operating a nuclear plant) and the Institute of Nuclear Power Operations, as long as the industry programs produced the desired results. In issuing the policy statement, though, the NRC reserved its regulatory and licensing authority. It was not until June 7, 1989 that a final rule was published, 54 Fed.Reg. 24,468.

Thus, at the time of decedent's discharge there was no NRC rule in effect, only a policy statement. Indiana Michigan Power Co.'s access-authorization plan, of which the psychological evaluation was a part, was instituted voluntarily, though, according to defendant, it was approved by the NRC in 1986 when it was submitted as part of a security plan.

There is no question that preemption may result not only from action taken by Congress itself, but from action of a federal agency that is within the scope of its congressionally delegated authority. Louisiana Public Service Comm. v. Federal Communications Comm., 476 U.S. 355, 369, 106 S.Ct. 1890, 1898, 90 L.Ed.2d 369 (1986). While Congress has expressed an intent that federal regulations supersede state law in matters of nuclear safety, the NRC had not promulgated a rule regarding...