Henry v. Laborers' Local 1191. Ramsey

• Decision Date: 05 May 2014
• Docket Number: Calendar No. 2,Docket Nos. 145631,145632.
• Parties: HENRY v. LABORERS' LOCAL 1191. Ramsey v. Laborers' Local 1191.
• Court: Michigan Supreme Court

495 Mich. 260
848 N.W.2d 130

HENRY
v.
LABORERS' LOCAL 1191.
Ramsey
v.
Laborers' Local 1191.

Docket Nos. 145631, 145632.
Calendar No. 2

Supreme Court of Michigan.

Argued Oct. 8, 2013.
Decided May 5, 2014.

[848 N.W.2d 133]

Joel B. Sklar and Robert Dinges for Anthony Henry and Keith White.

Giarmarco, Mullins & Horton, PC (by Ben M. Gonek) for Michael Ramsey and Glenn Dowdy.

Legghio & Israel, PC (by Christopher P. Legghio and Michael J. Bommarito) for Laborers' Local 1191 and Michael Aaron.

Law Offices of J. Douglas Korney (by J. Douglas Korney) for Bruce Ruedisueli.

Amicus Curiae: Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, and Susan Przekop–Shaw, Jason Hawkins, and Bradley A. Fowler, Assistant Attorneys General, for the Attorney General.

MARY BETH KELLY, J.

This case involves whether, and the extent to which, plaintiffs' claims asserted

[848 N.W.2d 134]

under the Michigan Whistleblowers' Protection Act (WPA) ¹ are preempted by the National Labor Relations Act (NLRA) ² and the Labor–Management Reporting and Disclosure Act (LMRDA). ³ Plaintiffs allege that defendants violated the WPA when they discharged plaintiffs in retaliation for reporting to the United States Department of Labor their suspicions of fraud, embezzlement, improper wages, and unsafe working conditions or for participating in the Department of Labor's ensuing investigation. Defendants argue that the NLRA and LMRDA preempt plaintiffs' WPA claims and, as a result, the state court must dismiss those claims.

Congress enacted the NLRA and the LMRDA to protect the rights of employees and union members from infringement by employers and unions. The NLRA established the National Labor Relations Board (NLRB), which has exclusive jurisdiction over activity “arguably subject” to §§ 7 ⁴ and 8 ⁵ of the NLRA. ⁶ These provisions forbid an employer from interfering with an employee's right to engage in concerted activities for the mutual aid or protection of employees.⁷ The LMRDA safeguards a union member's ability to elect union leadership, provides broad discretion for elected union officials to implement their policies, and protects union members who exercise their freedom of expression from retaliation by union officials.⁸ More recently, the Michigan Legislature enacted the WPA to protect employees from retaliation for reporting violations or suspected violations of laws and regulations to a public body.⁹

We hold that neither the NLRA nor the LMRDA preempts WPA claims premised on reporting suspected criminal misconduct. The NLRA does not cover the reporting of suspected criminal misconduct, while the LMRDA does not provide a union official with discretion to cover up suspected criminal misconduct by retaliating against employees who report their allegations. However, plaintiffs' allegations of retaliation for their reporting of improper wages and an unsafe work environment cover conduct “arguably prohibited” by the NLRA and, as a result, must be litigated exclusively before the NLRB. Accordingly, we affirm in part the decision of the Court of Appeals and remand this case to the Wayne Circuit Court for further proceedings consistent with our opinion.

I. FACTS AND PROCEDURAL HISTORY

Defendant Laborers' Local 1191 is a Wayne County labor union that represents construction workers. At all times relevant to these consolidated appeals, the union's member-elected leadership included its president (defendant Bruce Ruedisueli) and its business manager (defendant Michael Aaron). The union also employed several unelected business agents who serve at the pleasure of the business manager. Plaintiffs Anthony Henry and Keith White (Docket No. 145631) and

[848 N.W.2d 135]

Michael Ramsey and Glenn Dowdy (Docket No. 145632) all worked as business agents until their terminations.

While the facts leading up to plaintiffs' terminations are contested, it is undisputed that in September 2009, defendants asked several Local 1191 members to repair the crumbling façade of the Trade Union Leadership Council (TULC) building.¹⁰ The work lasted for two days, and each member received $30 a day. Although Local 1191 recorded these payments as “picket duty” on the memo line of the checks used for payment and in the union's treasury, it admits that its members did not engage in picket duty on those days.

Henry witnessed the work. He and the three other plaintiffs suspected that Aaron was involved in criminal activity, including fraud, an illegal kickback scheme, and misappropriation of union funds. They also believed that Local 1191 required members to work without proper safety precautions and without receiving union wages. As a result, on September 25, 2009, Henry circulated an unsigned open letter to Local 1191's leadership and distributed that letter to union membership, the union's parent leadership, and local news outlets. In the letter, Henry asked why Local 1191 was paying members out of its picket fund to work on a for-profit establishment (the TULC) and suggested that Aaron had received illegal kickbacks from the TULC in exchange for providing the TULC with free construction labor. The letter also complained that union members received only $60 for two full days of work.

In October 2009, Henry and White contacted the United States Department of Labor with their suspicions and informed the union of their decision to report the allegations.¹¹ The Department of Labor investigated the allegations and interviewed several union employees and officials.¹² It subsequently referred the matter to an Assistant United States Attorney, who declined to intervene.¹³

On November 11, 2009, Aaron notified Henry and White that they were indefinitely laid off from employment at Local 1191. The letters claimed that the “extremely difficult economic climate” necessitated the layoffs. Henry and White disputed that stated rationale and, instead, filed a complaint in the Wayne Circuit Court against Local 1191 as an entity and against Aaron and Ruedisueli individually, in which they alleged unlawful retaliation under the WPA.

During the pendency of that initial action, Dowdy and Ramsey were terminated from their employment at Local 1191. Dowdy and Ramsey claim that they were

[848 N.W.2d 136]

terminated for their cooperation in the Department of Labor investigation and for disclosing to investigators facts substantiating the allegations of criminal illegality.¹⁴ They also filed a separate WPA complaint against Local 1191 as an entity and against Aaron and Ruedisueli individually.

Defendants moved for summary disposition in the Henry/White lawsuit and for partial summary disposition in the Dowdy/Ramsey lawsuit,¹⁵ alleging that the LMRDA preempted plaintiffs' WPA claims and that, as a result, the circuit court lacked subject-matter jurisdiction to hear them.¹⁶ The court denied the motions from the bench, concluding that the WPA's protection of an employee against an employer's retaliatory employment actions does not contravene the LMRDA because the LMRDA only protects from retaliation the rights afforded union members.

On appeal, defendants reasserted their claim of LMRDA preemption and raised the new defense that the NLRA independently preempted the circuit court from exercising subject-matter jurisdiction. The Court of Appeals affirmed the circuit court's ruling in an unpublished opinion.¹⁷ The Court agreed with the circuit court that plaintiffs “have not alleged any infringement on their membership rights” and that, as a result, the LMRDA's protections did not cover plaintiffs' claims.¹⁸ The Court also examined whether the WPA undermined the LMRDA's democratic purpose to give elected union officials the discretion to implement policies that reflect the wishes of union membership. The Court concluded that plaintiffs' claims did not infringe union leaders' discretion “where a union employee claims wrongful discharge for refusing ‘to commit or aid in committing a crime’....” ¹⁹ Finally, the Court held that the NLRA did not preempt plaintiffs' claims because “[a] claim for retaliatory discharge arising out of an employee's report of suspected illegal activity or participation in investigation thereof is only of peripheral concern to the NLRA's purpose of protecting employees' rights to engage in ‘concerted activities for the purpose of collective bargaining or other mutual aid or protection.’ ” ²⁰

This Court granted defendants' applications for leave to appeal and requested that the parties brief

(1) whether, regardless of the public body involved, the National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq., or the Labor Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. § 401 et seq., preempt Michigan's Whistleblowers' Protection Act (WPA), MCL 15.361 et seq., if the challenged conduct actually or arguably falls within the jurisdiction of the NLRA or the LMRDA; (2) whether a union employee's report to a public body of suspected

[848 N.W.2d 137]

illegal activity or participation in an investigation thereof is of only peripheral concern to the NLRA or the LMRDA so that the employee's claims under the WPA are not preempted by federal law; and, (3) whether the state's interest in enforcing the WPA is so deeply rooted that, in the absence of compelling congressional direction, courts cannot infer that Congress has deprived the state of the power to act.²¹

II. STANDARD OF REVIEW

Defendants assert that federal law preempts plaintiffs' WPA claims and precludes Michigan courts from exercising subject-matter jurisdiction over them. As a result, they argue, they are entitled to summary disposition pursuant to MCR 2.116(C)(4).

Jurisdictional questions under MCR 2.116(C)(4), including whether federal statutory law preempts state law,²² are questions of law that we review de novo.²³ In deciding whether to grant a motion for summary disposition pursuant to MCR 2.116(C)(4), a court must consider “[t]he affidavits, together with the pleadings, depositions, admissions, and documentary evidence...