Lewis v. Whirlpool Corp.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0013p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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TIMOTHY LEWIS,

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Plaintiff-Appellant,

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No. 09-4231

v.

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Defendant-Appellee. -

WHIRLPOOL CORPORATION,

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Appeal from the United States District Court

for the Northern District of Ohio at Toledo.

No. 09-01203—James G. Carr, District Judge.

Argued: December 7, 2010

Decided and Filed: January 12, 2011

Before: SUTTON and GRIFFIN, Circuit Judges; BERTELSMAN, District Judge.*

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COUNSEL

ARGUED: Jami S. Oliver, OLIVER LAW OFFICE, Columbus, Ohio, for Appellant.

Dana Connell, LITTLER MENDELSON, P.C., Chicago, Ilinois, for Appellee.

ON BRIEF: Jami S. Oliver, OLIVER LAW OFFICE, Columbus, Ohio, for Appellant.

Dana Connell, Houston A. Stokes, LITTLER MENDELSON, P.C., Chicago, Ilinois, for

Appellee.

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OPINION

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GRIFFIN, Circuit Judge. Plaintiff-appellant Timothy Lewis brought a wrongful-

termination claim against defendant-appellee Whirlpool Corporation alleging that he was

terminated in violation of Ohio public policy for his refusal to discharge employees for

*

The Honorable William O. Bertelsman, United States District Judge for the Eastern District of

Kentucky, sitting by designation.

1

No. 09-4231 Lewis v. Whirlpool Corporation Page 2

unionizing activities. The district court dismissed Lewis’s complaint for lack of subject-

matter jurisdiction, finding his claim preempted by the National Labor Relations Act,

29 U.S.C. § 158, which is to be interpreted and applied in the first instance by the

National Labor Relations Board. We agree with the district court’s analysis and

accordingly affirm.

I.

Lewis was employed by Whirlpool from August 17, 1977, through April 2, 2007,

at its Marion, Ohio facility. In June 1997, Lewis was promoted to the position of

Manufacturing Supervisor in the “Drum and Powder Process Area.”

In 2004, several Whirlpool employees began wearing pro-union shirts and

meeting with union representatives. At this time, Whirlpool’s Marion facility was non-

unionized. As a result of this unionizing activity, Lewis alleges that Whirlpool Division

Vice President Stan Kinnett asked him to “build a case” and terminate two of the

instigating employees. According to Lewis, he was informed that Whirlpool would

retaliate against him if he did not follow Kinnett’s directive. Nevertheless, Lewis

refused to terminate the employees.

In July 2005, Lewis was transferred to “Assembly,” an area of the Marion facility

viewed as “the least desirable part of the plant in which to work.” While working in

Assembly between July 2005 and February 2006, Lewis asserts that his direct supervisor

“only spoke to [him] on one . . . occasion[,] despite the fact that other direct supervisors

. . . would communicate with their subordinates on a daily basis.” In February 2006,

Lewis began to report to a new manager, who, according to Lewis, “constantly harassed”

him over “minutiae.”

On March 29, 2007, Lewis was accused of “paying an employee for an entire

shift despite the employee not being on the premises.” Lewis was also accused of

“badging an employee,” which refers to when a supervisor clocks in one employee using

the time badge of a different employee. Lewis denied these allegations, but nevertheless

was suspended pending further investigation.

No. 09-4231 Lewis v. Whirlpool Corporation Page 3

On April 2, 2007, Lewis was terminated for “badging an employee.” Lewis

asserts that Whirlpool terminated him, despite its knowledge that it was another

employee, Dusty Miller, who had “badged” the employee at issue.

Following his termination, Lewis filed a charge with the NLRB, asserting that

he was terminated for his failure “to commit unfair labor practices on behalf of

[Whirlpool] during a previous organization campaign among its production employees.”

In November 2007, Lewis received a letter from a field examiner for the NLRB. This

letter informed him that the NLRB Regional Director had “considered the complete

investigative case file developed in connection with [Lewis’s] pending unfair labor

practice charge” and determined “that no violation of the National Labor Relations Act”

had been demonstrated. Specifically, the letter provided that the charge against

Whirlpool was “without merit since no clear evidence established that it terminated

[Lewis’s] employment . . . because [he] refused to commit unfair labor practices on its

behalf during a previous union organizing campaign some three years” prior to his

termination. The letter further informed Lewis that the Regional Director was prepared

to dismiss his charge for lack of merit unless it was immediately withdrawn. Lewis

thereafter withdrew his charge.

On March 31, 2009, Lewis filed a complaint in the Court of Common Pleas in

Marion County, Ohio. Whirlpool subsequently removed the action to the United States

District Court for the Northern District of Ohio based upon diversity jurisdiction.

Lewis’s complaint asserted a single claim of wrongful termination. Specially, Lewis

alleged that Whirlpool “violated Title 29 U.S.C. § 158(a)(3) of the National Labor

Relations Act . . . by discharging [him] for refusing to terminate subordinate union

organizers,” and that as a result, the termination violated Ohio public policy.

On June 2, 2009, Whirlpool moved to dismiss Lewis’s complaint for lack of

subject-matter jurisdiction, asserting that his claim is preempted by the NLRA. The

district court agreed, granting the motion on September 2, 2009. This timely appeal

followed.

No. 09-4231 Lewis v. Whirlpool Corporation Page 4

II.

A district court’s dismissal of a complaint pursuant to Federal Rule of Civil

Procedure 12(b)(1) for lack of subject-matter jurisdiction is reviewed de novo. Gentek

Bldg. Prods., Inc. v. Sherwin-Williams Co., 491 F.3d 320, 324 (6th Cir. 2007). In

considering a Rule 12(b)(1) motion, a court may look beyond the jurisdictional

allegations in the complaint and consider submitted evidence. Id. at 330. When the

defendant challenges the existence of subject-matter jurisdiction, the plaintiff bears the

burden of establishing that jurisdiction exists. Nichols v. Muskingum Coll., 318 F.3d

674, 677 (6th Cir. 2003).

Here, relying upon San Diego Building Trades Council v. Garmon, 359 U.S. 236

(1959), the district court ruled that it did not possess subject-matter jurisdiction over this

action because Lewis’s wrongful-termination claim was preempted by the NLRA. We

agree.

In Garmon, the Supreme Court held that “[w]hen it is clear or may fairly be

assumed that the activities which a State purports to regulate are protected by § 7 of the

National Labor Relations Act, or constitute an unfair labor practice under § 8, due regard

for the federal enactment requires that . . . jurisdiction must yield [to the NLRB].” Id.

at 244. The foundation of this rule is “the expressed congressional desire for uniformity

in the nation’s labor policy.” Nw. Ohio Adm’rs, Inc. v. Walcher & Fox, Inc., 270 F.3d

1018, 1027 (6th Cir. 2001). Therefore, “[w]hen an activity is arguably subject to § 7 or

§ 8 of the Act, the States as well as the federal courts must defer to the exclusive

competence of the National Labor Relations Board[.]” Garmon, 359 U.S. at 245

(emphasis added).

Lewis asserts that his wrongful-termination claim is not “arguably subject” to the

strictures of the NLRA because, as a former supervisor, he is not an “employee” covered

by the Act. The parties neither dispute that Lewis was a “supervisor,” as the term is

No. 09-4231 Lewis v. Whirlpool Corporation Page 5

defined by the Act,1 nor that the NLRA does not generally protect supervisors from

unfair labor practices.2 However, a supervisor does have a viable claim under the NLRA

when terminated or otherwise disciplined for refusing to commit unfair labor practices.3

See USF Red Star, Inc. v. NLRB, 230 F.3d 102, 106 (4th Cir. 2000) (“Although

supervisors are not explicitly covered by the NLRA, § 158(a)(1) is violated if a

supervisor’s discharge results from his refusal to commit an unfair labor practice.”);

Auto. Salesmen’s Union Local 1095, United Food & Commercial Workers Union, AFL-

CIO v. NLRB, 711 F.2d 383, 386 (D.C. Cir. 1983) (noting that supervisors have a claim

under the NLRA when disciplined for refusing to commit an unfair labor practice);

Belcher Towing Co. v. NLRB, 614 F.2d 88, 91 (5th Cir. 1980) (same); Gerry’s Cash

Markets, Inc. v. NLRB, 602 F.2d 1021, 1023 (1st Cir. 1979) (same); Russell Stover

Candies, Inc. v. NLRB, 551 F.2d 204, 206-07 (8th Cir. 1977) (same). This exception to

the supervisor exclusion is intended to protect covered employees from unfair labor

practices. See Int’l Longshoremen’s Ass’n, AFL-CIO v. Davis, 476 U.S. 380, 384 n.4

(1986) (“Even though supervisors are not covered by the Act, a discharge may constitute

a § 8(a)(1) unfair labor practice if it infringes on the § 7 rights of the employer’s

nonsupervisory employees.”); Russell, 551 F.2d at 206 (“The supervisor is not protected

in his own right[,] his basis for relief [under the NLRA] is that his discharge had a

1

A “supervisor” is defined by the NLRA as follows:

any individual having authority, in the interest of the employer, to hire, transfer,

suspend, lay off, recall, promote, discharge, assign, reward, or discipline other

employees, or responsibly to direct them, or to adjust their grievances, or effectively to

recommend such action, if in connection with the foregoing the exercise of such

authority is not of a merely routine or clerical nature, but requires the use of independent

judgment.

29 U.S.C. § 152(11).

2

Chapter 7 of the NLRA protects “employees” from “unfair labor practices.” 29 U.S.C. § 158(a).

Supervisors are expressly excluded from the definition of “employee.” 29 U.S.C. § 152(3) (“The term

‘employee’ . . . shall not include . . . any individual employed as a supervisor.”).

3

It is undisputed that if Lewis had terminated Whirlpool employees for unionizing activities, such

terminations would constitute unfair labor practices. 29 U.S.C. § 158(a)(3).

No. 09-4231 Lewis v. Whirlpool Corporation Page 6

tendency to interfere with, restrain or coerce the protected employees in the exercise of

their section 7 rights.”).4

Lewis relies upon the November 2007 letter from the NLRB Field Examiner in

asserting that his wrongful-termination claim is not covered by the NLRA. Specifically,

he contends that the NLRB determined that it did not have subject-matter jurisdiction

because Lewis was a supervisor, relying on a sentence in the letter that states: “It is

undisputed that you served [Whirlpool] in the capacity of a ‘supervisor’ within the

statutory meaning of Section 2(11) of the Act and, consequently, do not enjoy the

protections guaranteed ‘employees’ under the Act.”

Lewis mischaracterizes the substance of the letter. As noted by the district court,

the letter clearly addresses the substance of Lewis’s claim, finding it to be “without

merit.” Indeed, the very purpose of the letter was to inform Lewis that without the

voluntary withdrawal of his charge, the NLRB would publish its finding of “no fault

with respect to [Whirlpool’s] actions under review.” The jurisdiction of the NLRB is

not questioned, but assumed in the November 2007 letter.5

Because Lewis’s wrongful-termination claim is “arguably subject” to the NLRA,

Garmon preemption is implicated. Garmon, 359 U.S. at 245. However, the Supreme

Court instructs that the “inflexible application [of preemption] is to be avoided,

especially where the State has a substantial interest in regulation of the conduct at issue

and the State’s interest is one that does not threaten undue interference with the federal

regulatory scheme.” Farmer v. United Bhd. of Carpenters & Joiners of Am., Local 25,

4

At oral argument, Lewis relied upon Fortier v. United Food and Commercial Workers Union

Local 876, Civ. No. 05-CV-60004, 2006 WL 2457463 (E.D. Mich. Aug. 23, 2006), and Dominguez v.

Excell Agent Services, LLC, 137 F. Supp. 2d 1264 (D. N.M. 2001), in asserting that his wrongful-

termination claim is not covered by the NLRA as a result of his supervisor status. However, these cases

merely establish that supervisors are not protected as employees against unfair labor practices under the

Act. Fortier, 2006 WL 2457463, at *3-4; Dominguez, 137 F. Supp. 2d at 1266-67. They do not address

whether a supervisor has a claim when terminated for the failure to commit unfair labor practices.

5

This is not the first instance in which a letter from the NLRB has been misconstrued in this

manner. In Local 926, International Union of Operating Engineers, AFL-CIO v. Jones, 460 U.S. 669, 680

(1983), the Supreme Court noted that “the Court of Appeals may have interpreted the Regional Director’s

letter as indicating that the Board lacked jurisdiction to adjudicate [the plaintiff’s] complaint because of

[the plaintiff’s] supervisory status. That is plainly not the case, for the Regional Director’s statement did

not decline jurisdiction but addressed the merits of the complaint.”

No. 09-4231 Lewis v. Whirlpool Corporation Page 7

430 U.S. 290, 302 (1977). Thus, when a claim is “arguably subject” to the NLRA, we

consider two factors in determining whether Garmon preemption is required:

“(1) whether there exists a ‘significant’ state interest in protecting its citizens from the

conduct; and (2) whether state jurisdiction over the arguable labor violation would entail

‘little risk’ of interfering with the uniform national labor policy.” Walcher, 270 F.3d at

1027 (citing Sears, Roebuck & Co. v. San Diego Dist. Council of Carpenters, 436 U.S.

180, 196 (1978)).

The second factor of this analysis “is equivalent to the question of whether the

state cause of action is ‘identical’ to a claim that could have been made to the Board.”

Id. If the claims are identical, “then the Board has exclusive jurisdiction because the

state regulation impinges directly on the Board’s prerogative to fashion a uniform labor

policy.” Id. at 1027-28. Accordingly, when claims are identical, our analysis need go

no further, as preemption is required. See Sears, Roebuck & Co., 436 U.S. at 202

(“[W]hen the same controversy may be presented to the state court or the NLRB, it must

be presented to the Board.”) (emphasis added). Without a doubt, the claim Lewis could

have brought (and did bring) before the NLRB and the claim he now asserts are

identical. The sole and dispositive inquiry for both claims is whether Lewis was

terminated for the failure to commit unfair labor practices, as defined by the NLRA. See

Local 926, 460 U.S. at 682 (finding claims to be identical because the “same crucial

element must be proved” for both). Accordingly, Lewis’s wrongful-termination claim

is preempted.6

6

Several courts have found preemption to be required under circumstances indistinguishable from

those presented here. Specifically, such courts have found state-law claims for wrongful termination to

be preempted when a supervisor claimed he was discharged for refusing to commit unfair labor practices.

See Sitek v. Forest City Enters., Inc., 587 F. Supp. 1381, 1384 (E.D. Mich. 1984); Calabrese v. Tendercare

of Mich., Inc., 685 N.W.2d 313, 317-19 (Mich. Ct. App. 2004); Hinton v. Sigma-Aldrich Corp., 93 S.W.3d

755, 758-60 (Mo. Ct. App. 2002); Chavez v. Copper State Rubber of Ariz., Inc., 897 P.2d 725, 729-32

(Ariz. Ct. App. 1995); Kelecheva v. Multivision Cable T.V. Corp., 18 Cal. App. 4th 521, 528 (Cal. Ct. App.

1993); Venable v. GKN Auto., 421 S.E.2d 378, 379-81 (N.C. Ct. App. 1992). Lewis cites no contrary

authority.

No. 09-4231 Lewis v. Whirlpool Corporation Page 8

III.

In the alternative, Lewis asserts that the district court erred in dismissing his

complaint because in doing so, the court denied him procedural due process. This

argument has no merit.

First, we need not address Lewis’s due-process claim, as it was not raised before

the district court. See Hood v. Tenn. Student Assistance Corp., 319 F.3d 755, 760 (6th

Cir. 2003) (“It is well-settled that this court will not consider arguments raised for the

first time on appeal unless our failure to consider the issue will result in a plain

miscarriage of justice.”) (internal citation and quotation marks omitted). Second,

Lewis’s claim fails on its merits. We apply a two-part test in addressing procedural due-

process claims. “[W]e determine initially whether a protected . . . interest exists and

then what procedures are required to protect that interest.” Singfield v. Akron Metro.

Hous. Auth., 389 F.3d 555, 565 (6th Cir. 2004) (citing Johnston-Taylor v. Gannon, 907

F.2d 1577, 1581 (6th Cir. 1990)).

Lewis’s claim fails under the second prong of this analysis because he has

received all the process the Constitution requires.7 Lewis had an opportunity to be heard

before the NLRB. See Chavez, 897 P.2d at 733 (noting that Garmon preemption did not

deprive plaintiff of a remedy, as he had the opportunity to file a complaint with the

NLRB). Indeed, Lewis filed a charge with the NLRB, which he voluntarily withdrew,

waiving his right to receive a final, appealable decision.8 Accordingly, the requirements

of due process have been satisfied. See Farhat v. Jopke, 370 F.3d 580, 596 (6th Cir.

2004) (“[T]he availability of recourse to a constitutionally sufficient administrative

procedure satisfies due process requirements if the complainant merely declines or fails

to take advantage of the administrative procedure.”) (internal quotation marks and

7

A legal cause of action is a protected property interest. Logan v. Zimmerman Brush Co., 455

U.S. 422, 428 (1982).

8

In the February 2007 letter, Lewis was informed that, absent the voluntary withdrawal of his

charge, a final letter would issue dismissing his claim on the merits, which would be appealable to the

Board’s Office of Appeals.

No. 09-4231 Lewis v. Whirlpool Corporation Page 9

citation omitted); Logan, 455 U.S. at 437 (noting that due process does not require a

hearing, but instead an opportunity to be heard).

IV.

In sum, we hold that Lewis’s wrongful-termination claim is preempted by the

NLRA and his argument regarding procedural due process is wholly without merit.

Accordingly, we affirm the district court’s dismissal of plaintiff’s complaint for lack of

subject-matter jurisdiction.