Law v. INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL NO. 37, 83

• Decision Date: 14 March 2003
• Docket Number: No. 83,83
• Citation: 373 Md. 459,818 A.2d 1136
• Parties: Christina Renee LAW, et al., v. INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL NO. 37, AFL-CIO.
• Court: Maryland Court of Appeals

818 A.2d 1136

373 Md. 459

Christina Renee LAW, et al., v. INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL NO. 37, AFL-CIO.

No. 83, Sept. Term, 2002.

Court of Appeals of Maryland.

March 14, 2003.

Marvin Ellin (David Ellin, on brief), Baltimore, for appellants.

Andrew Janquitto (Mudd, Harrison & Burch, on brief), Towson, for appellee.

Argued before BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ CATHELL, Judge.

Appellants are former employees of Omni House Health Behavioral Services, Incorporated (hereafter "Omni House"), which operates a health care facility in Anne Arundel County. During the spring of 2001, authorized agents of the International Union of Operating Engineers, Local No. 37, AFL-CIO, appellees (hereafter "the union"), undertook an organizing campaign to create a bargaining unit consisting of certain employees at Omni House. In the course of the organizing campaign, appellants engaged in picketing and related collective action as instructed by the union in an effort to get Omni House to recognize the union as their collective bargaining representative. In response to the picketing, Omni House suspended and then terminated the employment of appellants because they had not given Omni House ten-days notice of their intentions to picket. 29 U.S.C. § 158(g), appears to require a ten-day notice prior to picketing of a health care institution by a union.¹ On July 25, 2001, appellants filed suit against the union in the Circuit Court for Baltimore City for negligent misrepresentation under State law because the union had assured appellants that their activities were lawful and not subject to adverse action by their employer.

On August 21, 2001, the union filed a "notice of removal" of the case to the United States District Court for the District of Maryland. On December 18, 2001, the union then filed a Motion to Dismiss the federal case for lack of subject matter jurisdiction, claiming that the issue presented was preempted by federal law mandating that cases such as the case sub judice initially be presented to the National Labor Relations Board (hereafter "NLRB").

On January 3, 2002, the federal district court neither granted nor denied the union's Motion to Dismiss and remanded the case to the Circuit Court for Baltimore City for it to decide whether the National Labor Relations Act (hereafter "NLRA") preempts appellants' claims and places exclusive subject matter jurisdiction for their claims with the NLRB.

On May 29, 2002, Judge Kaye A. Allison of the Circuit Court issued an Order granting the union's Motion to Dismiss and stated that the court must defer to the NLRB because it has jurisdiction over the matter. On June 5, 2002, appellants filed a Notice of Appeal to the Court of Special Appeals. On November 8, 2002, we, on our own initiative, granted a writ of certiorari to undertake review of this issue before the intermediate appellate court acted. Law, et. al. v. Operating Engineers Local No. 37, 371 Md. 613, 810 A.2d 961 (2002). Appellants presented one question for review in their brief:

"Was the Circuit Court in error for dismissing the Appellants' Case ruling that a State tort fell under the jurisdiction of the National Labor Relations Board and was thus preempted?"

We answer no to appellants' question and affirm the decision of the Circuit Court. We hold that appellants' claims are preempted by the NLRA because any State court decision to adjudicate the tort suit for negligent misrepresentation would, under the circumstances in the case at bar, result in adjudication of underlying labor issues relating to unfair labor practices falling within the NLRB's primary jurisdiction.

I. FACTS

Appellants sued the union after being terminated by their employer, Omni House. In the spring of 2001, the union solicited appellants to unionize by explaining the benefits of unionization and collective bargaining. In late May of 2001, the union's representatives met with appellants to discuss the possibility of having the union act as their collective bargaining representative. At least seven of the eight appellants signed union cards, as well as two other employees who are not parties to this suit, authorizing the union to act as their exclusive bargaining representative.

On June 12, 2001, at a meeting between appellants and the union, the union explained to appellants that they should not be concerned about being fired for their union membership as they were "within their legal rights." Then, upon the advice of the union representatives, appellants notified the CEO of Omni House that they had organized and were members of a union and requested that Omni House recognize the union as their bargaining agent. The union alleges that, at this time, appellants had not yet become members of the union, even though they might have thought the opposite when appellants told Omni House they had joined a union.²

On June 14, 2001, the union notified Omni House that appellants were assisting in its organizing efforts. This letter advised Omni House that appellants, the bargaining unit, were covered by section 7 of the NLRA.³ On June 15, 2001, the union advised Omni House that a majority of the employees in the bargaining unit had designated the union as their exclusive bargaining representative. The letter also requested recognition by Omni House of the union as the exclusive bargaining representative of the employees at the Third Avenue Omni House location in Anne Arundel County.

On June 19, 2001, appellants engaged in a recognitional strike and picketed Omni House in an attempt to have it recognize the union as appellants' exclusive bargaining representative and because the CEO of Omni House refused to speak with and/or meet with the union organizers.

Subsequent to the picketing, the union advised appellants that the CEO had refused to accept the union's letter of representation and that appellants should return to work the following day.

When appellants returned to work the next day, June 20th, they were, individually, called into the executive office of Omni House and advised that they were suspended because of their strike activities. Appellants, on June 21, 2001, again went out on the street and began picketing. Representatives of the union were present and approved the resumption of the picketing.

At approximately noon on June 21st, appellants were notified by the union's attorney that the picketing and striking activities were improper because, under the law, they were required to have given ten-days notice prior to picketing because of Omni House's status as a health care institution.⁴ As a result, the union advised appellants to write a letter informing the CEO that all of appellants were going to return to work the next day, Friday, June 22, 2001.

On June 22, 2001, the union advised appellants that the decision to strike was an error on their part and apologized for their suspension. Also on this day, the CEO of Omni House issued a letter to appellants notifying each of them that their employment at Omni House was being terminated for failure to give the required ten-days notice of picketing activity as required by the NLRA.

Appellants then filed a tort suit for negligent misrepresentation against the union in the Circuit Court. The union sought removal of the case to the federal district court and later filed a Motion to Dismiss the case in the federal court. On January 3, 2002, the District Court Judge Andre M. Davis, sua sponte, neither granted nor denied the union's Motion to Dismiss and instead remanded the case back to the Circuit Court for Baltimore County for lack of federal court jurisdiction, holding that it was for that State court to decide whether the NLRA preempts appellants' claim and places subject matter jurisdiction over the claim with the NLRB.

On remand to the Circuit Court, the Circuit Court Judge granted the union's Motion to Dismiss, stating:

"This case comes before this court on a Motion to Dismiss, filed by the [union]. The [union] argues that this court lacks subject matter jurisdiction because resolution of [appellants'] negligent misrepresentation claim involves issues that implicate §§ 7 and 8 of the [NLRA], codified at 29 USC §§ 157, 158. `When an activity is arguably subject to §§ 7 and §§ 8 of the [NLRA], the States as well as the federal courts must defer to the exclusive competence of the [NLRB].' San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 245 [79 S.Ct. 773, 3 L.Ed.2d 775] (1959). This court agrees.

"This court finds that an adjudication of [appellants'] claims would require this court to interpret and apply the notice requirement, as set forth in § 8(g) of the [NLRA], as well as other portions of the [NLRA], as raised by the [union]. As this case involves activities which are subject to §§ 7 or §§ 8 of the [NLRA], this court must defer to the [NLRB]. Garmon, 359 U.S. at 245. Therefore, it is this 29th day of May, 2002, in the Circuit Court for Baltimore City ORDERED, that the [union's] Motion to Dismiss is hereby GRANTED." [Alterations added.]

A. THE SUPREMACY CLAUSE

The Supremacy Clause of the United States Constitution, art. VI, cl. 2,⁵ requires that when compliance with both federal and state law is a physical impossibility, the "state law is `void to the extent it conflicts with a federal statute.'" Sanders v. State, 57 Md.App. 156, 167, 469 A.2d 476, 482, cert. denied, 299 Md. 656, 474 A.2d 1345 (1984) (quoting Maryland v. Louisiana, 451 U.S. 725, 747, 101 S.Ct. 2114, 2129, 68 L.Ed.2d 576, 596 (1981)). See also Hillsborough County, Florida v. Automated Medical Laboratories, Inc., 471 U.S. 707, 713, 105 S.Ct. 2371, 2375, 85 L.Ed.2d 714, 721 (1985); Harrison v. Schwartz, 319 Md. 360, 364, 572 A.2d 528, 530, cert. denied, 498 U.S. 851, 111 S.Ct. 143, 112 L.Ed.2d 110 (1990); Hecht Co. v. C & P Telephone Co., 310 Md. 148, 152, 528 A.2d 474, 475-76 (1987). If Congress has expressly stated preemptive intent or...