Bar News - April 20, 2016
Labor & Employment Law: NLRA Can Preempt State Law Claims
By: Mark T. Broth and Anna B. Cole
The National Labor Relations Act (NLRA), which governs private sector labor relations that affect interstate commerce, does not include an explicit preemption provision.
However, in San Diego Building Trades Council v. Garmon, the US Supreme Court held that the NLRA strips state courts of their jurisdiction to regulate conduct “[w]hen it is clear or may be fairly assumed that the activities that a State purports to regulate are protected by [Section] 7... or constitute an unfair labor practice under [Section] 8...” (1959).
At the heart of the NLRA are the so-called Section 7 rights, which provide employees with: “… the right to self-organization; to form, join, or assist labor organizations; to bargain collectively through representatives of their own choosing; to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection; and to refrain from any or all such activities.” Pursuant to Section 8(a)(1), an employer commits an “unfair labor practice” in violation of the act if it engages in conduct “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed [by Section 7].”
When a party claims that a state law impacts activity that is arguably protected or arguably prohibited by the NLRA, “[t]he critical inquiry,” according to the Court in Sears, Roebuck and Co. v. San Diego Dist. Council (1978), 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 National Labor Relations Board (NLRB), the federal agency charged with enforcing the NLRA.
Thus, “[t]he Garmon rule prevents States not only from setting forth standards of conduct inconsistent with the substantive requirements of the NLRA, but also from providing their own regulatory or judicial remedies for conduct prohibited or arguably prohibited by the Act,” as stated in Wis. Dep’t of Indus., Labor & Human Relations v. Gould Inc. (1986).
The Garmon doctrine is most commonly used to preempt state law claims alleged by unionized employees against their employers. See, e.g., Chaulk Servs. Inc. v. Mass. Comm’n Against Discrimination (1st Cir. 1995) (holding that a former employee’s sex discrimination claim before the Massachusetts Commission Against Discrimination was preempted by the NLRA because the claim was “fundamentally grounded in an assertion that the rights which her employer interfered with involve[d] her union activity”); Cormier v. Simplex Technologies Inc. (D.NH Mar. 4, 1999) (holding that a former employee’s state law claim for wrongful discharge was preempted by the act where he alleged that he was terminated in retaliation for his union-organizing activities).
Importantly, however, state law claims for wrongful discharge have also been found preempted by Garmon in the nonunion context. See, e.g., Adams v. Youville Healthcare Center Inc. (Ma. Super. Jan. 29, 1998) (relying on Garmon preemption to dismiss former employee’s state law wrongful termination and retaliation claims arising from employee conduct protected under the NLRA); Romero v. DirecTV Inc. (Cal. Ct. App. Feb. 7, 2013) (dismissing employee’s state law wrongful discharge claims on the basis of Garmon preemption where employee alleged that he had been terminated for engaging in the NLRA-protected activity of complaining about the employer’s unlawful wage and hour practices).
The NLRA is a complex and difficult federal employment law that is commonly misunderstood as applying only to unionized workforces. However, all private employers should know what the law prohibits and how it applies to their employees. Additionally, employers and defense counsel should be aware that they can potentially use the act to their advantage if an employee attempts to assert state law claims against the employer based on conduct arguably protected by Section 7.
Mark T. Broth
Anna B. Cole
Mark T. Broth and Anna B. Cole are labor and employment attorneys with Drummond Woodsum, a general practice firm based in Manchester and Portsmouth, NH, and Portland, Maine.