Hobson v. Mark Facey & Co., No. CV-03-0091633S (Conn. Super. 11/3/2006)

• Decision Date: 03 November 2006
• Docket Number: No. CV-03-0091633S,CV-03-0091633S
• Court: Connecticut Superior Court
• Parties: Melinda L. Hobson v. Mark Facey & Company Opinion No.: 95811

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Unpublished Opinion

Melinda L. Hobson v. Mark Facey & Company Opinion No.: 95811

No. CV-03-0091633S

Superior Court of Connecticut

Judicial District of Litchfield at Litchfield

November 3, 2006

MEMORANDUM OF DECISION

ELIOT D. PRESCOTT, JUDGE.

This is a wrongful discharge action brought by the plaintiff, Melinda Hobson, against her employer, Mark Facey & Company. The defendant moves to dismiss the action. Specifically, the defendant argues that the plaintiff's action is preempted by the National Labor Relations Act and that the National Labor Relations Board has exclusive jurisdiction over the claims raised in the plaintiff's complaint. Because the Court concludes that the activity alleged in the plaintiff's complaint is "arguably subject to" the protections found in §7 of the National Labor Relations Act ("NLRA"), this action is preempted, and the motion to dismiss is granted.

A. STANDARD

"Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings belong . . . [O]nce the question of lack of jurisdiction is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) Esposito v. Specyalski, 268 Conn. 336, 348, 844 A.2d 211 (2004). "A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). "When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . [A] court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Id.

B. FACTS

In her October 22, 2003 complaint, the plaintiff, Melinda L. Hobson, alleges the following facts. From October 1993 through October 15, 1997, the defendant, Mark Facey & Company, employed the plaintiff as a telemarketer in the defendant's Bristol, Connecticut facility. The plaintiff is not part of a union or a collective bargaining unit, and there are no allegations that any of the defendant's employees have formed, or are in the process of forming, a union.

The plaintiff was generally considered a good employee and on several occasions, the defendant sent the plaintiff to its Scranton, Pennsylvania facility to train other telemarketers. During the fall of 1997, the defendant experienced employee morale problems in its Bristol facility. As a result, the company formed a "morale committee" to provide a vehicle for employees to communicate employment issues and concerns to management, thereby improving employee morale. The defendant selected and appointed the plaintiff to the morale committee.

A supervisor told the plaintiff that as a member of the committee, it was the plaintiff's responsibility to be aware of her co-worker's employment issues and concerns and communicate them to management. As a result, the plaintiff sought out and received employment-related comments, suggestions and complaints from other telemarketing employees and relayed them, as instructed, to the defendant's management.

During the course of 1997, the plaintiff concluded that she was being passed over for various promotions and other job opportunities. As a result, the plaintiff requested a meeting with the defendant's personnel manager in order to: (1) inquire as to why she had been passed over for promotions and job opportunities, and (2) communicate various employment issues and concerns that her co-workers had addressed to her as a member of the morale committee. At the conclusion of the meeting, the personnel manager indicated that she would respond to the plaintiff regarding the issues that she had raised.

After a few weeks without a response, the plaintiff requested another meeting with the personnel manager. During this second meeting, the plaintiff, in her capacity as a member of the morale committee, informed the personnel manager that a group of the defendant's telemarketing employees were upset about certain employment issues and wished to meet with the owner of the company to discuss their concerns. Within an hour after the conclusion of this meeting, the plaintiff's employment was terminated.

The personnel manager informed the plaintiff that the owner had decided to terminate her employment because: (1) the owner of the company had been told that the plaintiff was unhappy working for the defendant, and (2) the plaintiff's name was being mentioned too often in conjunction with other employees' issues and/or concerns relating to their employment. The personnel manager also stated that the owner had instructed her not to "waste any more time" on the plaintiff, that the plaintiff "always wanted to meet with someone to discuss something," and that management had too much to do and could not waste time meeting with the plaintiff to discuss problems.

Subsequently, during a telephone conversation with the plaintiff, the owner threatened to contest the plaintiff's application for unemployment compensation and give the plaintiff unfavorable references if she sued the defendant. The plaintiff subsequently brought this suit against the defendant asserting breach of contract and promissory estoppel theories.¹

C. ANALYSIS

The defendant now moves to dismiss the plaintiff's complaint, arguing that this court lacks subject matter jurisdiction because the plaintiff's complaint alleges unfair labor practices by a company engaged in interstate commerce,² and consequently, the action is subject to the exclusive jurisdiction of the National Labor Relations Board (NLRB) under the Garmon preemption doctrine as set forth in San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). Specifically, the defendant argues that this court lacks subject matter jurisdiction because the allegations contained in the plaintiff's complaint are arguably within the scope of §7³ or §8⁴ of the NLRA, and as a result, the NLRB retains exclusive jurisdiction. The plaintiff appears to contend that Garmon preemption does not apply in this case because the plaintiff's conduct was not a protected activity under the NLRA, the allegations in the plaintiff's complaint are merely peripheral to the enforcement of the NLRA, and that her state court action, as a result, is not preempted by the NLRA.

"The [Garmon] doctrine precludes both state and federal courts from adjudicating issues that are entrusted to the [NLRB] in the first instance. Preemption under Garmon not only preempts state substantive law, but safeguards the exclusive jurisdiction of the [NLRB] over issues arguably within the scope of the [NLRA]." Barbieri v. United Technologies Corp., 255 Conn. 708, 719, 771 A.2d 915 (2001).

"The touchstone of preemption under [the Garmon] doctrine is the potential for conflict—potential conflict of rules of law, of remedy, and of administration . . . The potential conflict of two law-enforcing authorities, with the disharmonies inherent in two systems, one federal the other state, of inconsistent standards of substantive law and differing remedial schemes is the primary concern when a party in a labor dispute seeks to vindicate rights that implicate the [NLRB]'s jurisdiction . . . Within this complex and interrelated federal scheme of law, the Supreme Court has concerned itself with conflict in the broadest sense . . .

"The court in Garmon enumerated two tests for jurisdictional preemption. First, when it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by §7 of the [NLRA], or constitute an unfair labor practice under §8 [of that act], due regard for the federal enactment requires that state jurisdiction must yield . . . Second, the court recognized that at times it may not be clear whether the particular activity regulated by the States is governed by §7 or §8, or is perhaps, outside both these sections . . . In those instances, when 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 [NLRB] if the danger of state interference with national policy is to be averted . . .

"Exceptions to the preemption of state jurisdiction under this rationale do exist, and a state is not ousted of the power to adjudicate matters that are of a peripheral concern to the federal labor scheme or whether the conduct at issue touche[s] interests . . . deeply rooted in local feeling and responsibility . . . In assessing whether to apply either exception a court must balance the State's interest in controlling or remedying the effects of the conduct . . . against both the interference with the [NLRB]'s ability to adjudicate controversies committed to it by the [NLRA] . . . and the risk that the State will sanction conduct that the [NLRA] protects." (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 732-34.

Under the Garmon test, the court must first ascertain whether the plaintiff's conduct as alleged in her complaint, constitutes activities that are protected, or that at least arguably protected, by §7 of the NLRA. The language within §7 of the NLRA that is arguably applicable to the instant case is: "[e]mployees shall have the right to . . . engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . ." (Emphasis added.) 29 U.S.C. §157. As a result, in order...