Sargent v. Browning-Ferris Industries

• Decision Date: 19 April 1988
• Docket Number: Docket No. 94664,BROWNING-FERRIS
• Citation: 131 L.R.R.M. (BNA) 2254,167 Mich.App. 29,421 N.W.2d 563
• Parties: Harmer SARGENT, III, Plaintiff-Appellant, v.INDUSTRIES, a Michigan corporation, Defendant-Appellee. 167 Mich.App. 29, 421 N.W.2d 563, 131 L.R.R.M. (BNA) 2254, 108 Lab.Cas. P 10,449
• Court: Court of Appeal of Michigan — District of US

Page 563

421 N.W.2d 563

Harmer SARGENT, III, Plaintiff-Appellant, v. BROWNING-FERRIS INDUSTRIES, a Michigan corporation,

Defendant-Appellee.

Docket No. 94664.

167 Mich.App. 29, 421 N.W.2d 563, 131 L.R.R.M. (BNA) 2254,

108 Lab.Cas. P 10,449

Court of Appeals of Michigan.

Submitted June 4, 1987.

Decided March 8, 1988.

Released for Publication April 19, 1988.

[167 MICHAPP 30] Simon, Jarema & Associates, P.C. by Robert L. Fix and Dennis J. Simon, Southfield, for plaintiff-appellant.

Dykema, Gossett, Spencer, Goodnow & Trigg by John A. Entenman and M. Beth Sax, Detroit, for defendant-appellee.

[167 MICHAPP 31] Before WAHLS, P.J., and J.H. GILLIS and SIMON, ^* JJ.

SIMON, Judge.

Plaintiff, Harmer Sargent, III, brought suit against his former employer, defendant, Browning-Ferris Industries, asserting claims sounding in wrongful discharge and breach of contract. The trial court granted summary disposition in favor of defendant after determining that plaintiff's claims were either preempted by federal law or governed by Sec. 301 of the National Labor Management Relations Act (NLMRA), 29 U.S.C. Sec. 185. In the latter event, the trial court found plaintiff's claims defective on several grounds. Plaintiff appeals as of right. We affirm.

Defendant was in the business of waste disposal and employed truck drivers and other laborers for this purpose. Hazardous liquid waste hauling employees, such as plaintiff, were represented by Teamsters Local 283. Other employees were represented by Teamsters Local 247.

In March, 1983, defendant notified Local 283 that it was discontinuing its hazardous liquid waste hauling operation. In accordance therewith, defendant and Local 283 executed a closure agreement on April 11, 1983. The agreement provided for the termination of employees represented by Local 283 on April 14, 1983, with certain separation benefits. Two union representatives, including plaintiff who was then union steward, signed the agreement on behalf of Local 283.

The instant suit was one of several actions brought by plaintiff after his employment was terminated. In 1984, plaintiff filed a claim for workers' compensation benefits and obtained $2,400 pursuant to a redemption agreement.

At the core of the plaintiff's other actions was [167 MICHAPP 32] an allegation that defendant had continued in the hazardous liquid waste disposal business, despite the closure agreement, and was assigning work previously performed by Local 283 employees to Local 247 employees.

First, on January 4, 1984, plaintiff filed an unfair labor practice charge with the National Labor Relations Board (NLRB). The charge was withdrawn on February 10, 1984. Next, in October, 1984, plaintiff brought his complaint to Walker Quillico and George Vitale, the business agent and president of Local 283, respectively. George Vitale allegedly investigated the complaint and, on December 2, 1984, advised plaintiff that he found no evidence that Local 283 work was being performed by Local 247 employees.

On December 11, 1984, plaintiff filed civil rights charges with the Equal Employment Opportunity Commission (EEOC), alleging reverse race discrimination. The EEOC deferred the matter to the Michigan Department of Civil Rights. On August 30, 1985, the EEOC issued a notice of right to sue to plaintiff and terminated any further proceedings on the charges.

The instant suit was filed on April 15, 1985. Although defendant petitioned for a removal of plaintiff's cause of action to the federal district court, the federal district court denied the petition, apparently because it was untimely. Defendant thereafter moved for summary disposition, which was granted by the trial court.

On appeal, plaintiff challenges the trial court's ruling on three bases, with one basis being a general allegation that summary disposition was inappropriate because material issues of fact and law existed. Such generalities, however, are insufficient to bring an issue before this Court. "It is not enough for an appellant in his brief simply to [167 MICHAPP 33] announce a position or assert an error and then leave it up to this Court to discover and rationalize the basis for his claims...." Mitcham v. Detroit, 355 Mich. 182, 203, 94 N.W.2d 388 (1959), and see Cornforth v. Borman's, Inc., 148 Mich.App. 469, 479, 385 N.W.2d 645 (1986).

Plaintiff also claims that the trial court erred in granting summary disposition to defendant based on federal preemption. In reviewing this issue, our first concern is the appropriate standard of review. While defendant moved for summary disposition under MCR 2.116, defendant did not identify the subsection on which the motion was based. This deficiency, however, was harmless since it was clear that the motion was based on the court's lack of subject matter jurisdiction, MCR 2.116(C)(4), and the parties were not prejudiced by the deficiency. See Barrera v. Bechtel Power Corp. 144 Mich.App. 237, 240, 375 N.W.2d 362 (1985), and Jones v. Employers Ins. of Wausau, 157 Mich.App. 345, 349-350, 403 N.W.2d 130 (1987), lv. den. 428 Mich. 899 (1987). Consequently, summary disposition was properly granted if the pleadings showed that defendant was entitled to judgment as a matter of law, or the affidavits and other proofs showed that there was no genuine issue of material fact. MCR 2.116(G)(2) and 2.116(I)(1).

The preemption doctrine at issue in this case was set forth in San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). When Garmon preemption exists, the state court has no power to adjudicate the subject matter of the case. International Longshoremen's Ass'n, AFL-CIO v. Davis, 476 U.S. 380, 392-393, 106 S.Ct. 1904, 1912-1913, 90 L.Ed.2d 389 (1986). This doctrine basically requires a balancing of federal and state interests to determine whether the court must yield to the primary jurisdiction of the NLRB over [167 MICHAPP 34] the labor dispute. Martin v. Associated Truck Lines, Inc., 801 F.2d 246, 249 (CA 6, 1986).

The well-established approach to this doctrine, as applied to this case, required the trial court to first determine whether the conduct which plaintiff sought to make the basis of liability was actually or arguably protected or prohibited by the NLMRA. Local 926, International Union of Operating Engineers, AFL-CIO v. Jones, 460 U.S. 669, 676-677, 103 S.Ct. 1453, 1458-1459, 75 L.Ed.2d 368 (1983); Garmon, 359 U.S. at 244, 79 S.Ct. at 779. If the conduct at issue is arguably subject to either Sec. 7 or Sec. 8 of the NLMRA, then deference must be given to the NLRB's exclusive jurisdiction. Jones, 460 U.S. at 676-677, 103 S.Ct. at 1458-1459; Garmon, 359 U.S. at 245, 79 S.Ct. at 779.

When, however, conduct which is arguably subject to the NLMRA is only a peripheral concern of the NLMRA, or touches concerns deeply rooted in local feelings and responsibilities, then, in the absence of compelling congressional direction, it should not be inferred that Congress intended to preempt state action. Jones, 460 U.S. at 676, 103 S.Ct. at 1458; Garmon, 359 U.S. at 243-244, 79 S.Ct. at 778-779. This question requires a sensitive balancing of federal and state interests. Jones, supra. The critical inquiry is whether the controversy presented to the state court is identical to or different from that which could have been, but was not, presented to the NLRB. Serrano v. Jones & Laughlin Steel Co., 790 F.2d 1279 (CA 6, 1986).

Here, the trial court found, and we agree, that the conduct at issue was arguably subject to Sec. 8(a)(5) of the NLMRA, 29 U.S.C. Sec. 158(a)(5). That section provides that it is an unfair labor practice for an employer to refuse to bargain collectively with a representative of its employees. To bargain collectively means

"the performance of the mutual obligation of the [167 MICHAPP 35] employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party...." 29 U.S.C. Sec. 158(d).

The employer's duty to bargain in good faith encompasses the duty to bargain in good faith over the effects of its decision resulting in the partial closure of its operations. Penntech Papers, Inc. v. N.L.R.B., 706 F.2d 18, 26-27 (CA 1, 1983), cert. den. 464 U.S. 892, 104 S.Ct. 237, 78 L.Ed.2d 228 (1983).

Plaintiff's claims in the present case arose out of a closure agreement bargained for between defendant and representatives of plaintiff's union and were based on an allegation that defendant continued in the hazardous waste disposal business notwithstanding the agreement. Arguably, this allegation evidences bad faith bargaining and, thus, brought plaintiff's claims within the purview of Secs. 8(a)(5) and 8(d) of the NLMRA.

We find no merit in plaintiff's claim that the challenged conduct was only a peripheral concern of the NLMRA. The failure of an employer to bargain in good faith about the terms and conditions of employment strikes at the heart of a basic concern of the NLMRA. Serrano, supra, 790 F.2d 1287. Nor do we find merit in plaintiff's argument, made for the first time on appeal, that this controversy is deeply rooted in local feelings and concerns because defendant's alleged conduct of assigning work previously performed by Local 283 employees to unqualified waste haulers endangered the entire community. In "local interest" cases, there must exist a significant interest in protecting the citizen from the "challenged conduct."[167 MICHAPP 36] Id., p. 1285. The conduct about which plaintiff complains deeply implicates labor relations founded on a collective bargaining process. While the qualifications of hazardous waste haulers and the danger their work may create are certainly matters of great local concern, these matters are...