Betty v. Brooks & Perkins

521 N.W.2d 518, 446 Mich. 270

• Court: Michigan Supreme Court
• Decided: August 24, 1994
• Docket: 96538, (Calendar No. 5)
• Status: Published

Opinions

Griffin, J.

We must decide whether plaintiff’s state-law claim of employer race and sex discrimination is preempted by §301 of the federal Labor Management Relations Act (lmra).¹ Because her action, based upon the Michigan Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., is independent, and resolution does not require interpretation of the collective-bargaining agreement between plaintiff’s union and her employer, we conclude that the claim is not preempted by federal law.

i

Plaintiff Carnell Betty is a black female who began working for defendant Brooks & Perkins² as a welder in 1979. She and Brian Krawczyk, a white male who worked as a welder in the same department, were members of the United Auto Workers Union Local No. 157, and were covered by a collective-bargaining agreement.

As a quality control measure, pursued with approval of the union, defendant required a group of six welders, including plaintiff and Mr. Krawczyk, to attend classes for four weeks at Weld Tech Welding Education Center.³ A letter of understanding,⁴ signed by defendant and the union, provided that each of these employees was required to "successfully conclude [the course of] training to be considered as qualified to retain seniority within the Welder’s Classification.”

On March 14, 1983, Mr. Krawczyk completed a segment of the course and took a welding test. His instructor advised defendant that Mr. Krawczyk had passed. However, after he had completed the course and returned to work, defendant was notified by Weld Tech that the earlier report was an error and that Mr. Krawczyk had actually failed a portion of the examination. As a result, Mr. Krawczyk lost his seniority within 'the classification and was laid off.

In the meantime, plaintiff had also taken the welding course at Weld Tech and passed. At that point, she stood higher on the seniority list than Mr. Krawczyk.⁵

Mr. Krawczyk complained to the union, which in turn complained to defendant’s management that if he had been timely informed of his failure, he could have retaken the test before completion of the course. Management determined that the treatment was unfair, and on April 12, 1983, Mr. Krawczyk was allowed to return to Weld Tech and retake the test. This time he passed and his seniority was reinstated.

Thereafter, on December 17, 1984, plaintiff and Mr. Krawczyk each applied for the same shift preference. According to defendant, the preference was awarded to Mr. Krawczyk in accordance with the collective-bargaining agreement because his seniority ranking was higher.⁶ Plaintiff complained to the union, which refused to file a grievance.

Plaintiff then filed this discrimination suit, claiming that a similarly situated white male employee with less qualifications and lower seniority was awarded the shift preference. While the group required to take the Weld Tech course included both blacks and whites, plaintiff asserts that all of the whites passed the test except one, Brian Krawczyk, and that all of the blacks failed the test except one, plaintiff* Carnell Betty. She further contends that black employees who failed also retook the test and passed; however, they were placed at the bottom of the seniority list.

At the close of discovery, defendant moved for summary disposition pursuant to MCR 2.116(C)(4), (8), and (10), and argued, inter alia, that plaintiff’s discrimination claim was preempted by § 301 of the lmra.⁷ The circuit court granted defendant’s motion on the narrow ground of § 301 preemption and found it unnecessary to address the other issues.⁸

On appeal, a divided panel of the Court of Appeals reversed.⁹ The panel majority opined that the "question to be resolved is a factual one regarding the motivation of defendant, and not the legal one of interpretation of the collective bargaining agreement,” citing Hall v Kelsey-Hayes Co, 184 Mich App 277, 280; 457 NW2d 143 (1990). See also Lingle v Norge Div of Magic Chef, Inc, 486 US 399, 419; 108 S Ct 1877; 100 L Ed 2d 410 (1988).

We then granted defendant’s application for leave to appeal. 444 Mich 914 (1994).

ii

The authority of Congress to preempt state law is rooted in the Supremacy Clause of the United States Constitution.¹⁰ Gibbons v Ogden, 22 US (9 Wheat) 1; 6 L Ed 23 (1824). Whether a state claim is preempted by a federal statute "is, of course, a question of federal law.” Allis-Chalmers Corp v Lueck, 471 US 202, 214; 105 S Ct 1904; 85 L Ed 2d 206 (1985). "[W]here Federal questions are involved we are bound to follow the prevailing opinions of the United States supreme court.” Harper v Brennan, 311 Mich 489, 493; 18 NW2d 905 (1945).

A

Section 301 of the lmra provides:

Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce ... or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. [29 USC 185(a).]_

In Textile Workers v Lincoln Mills, 353 US 448, 455; 77 S Ct 912; 1 L Ed 2d 972 (1957), the United States Supreme Court concluded that § 301 "does more than confer jurisdiction in the federal courts over labor organizations.” From the legislative history of § 301, the Court gleaned an expression of "federal policy that federal courts should enforce [collective-bargaining] agreements on behalf of or against labor organizations and that industrial peace can be best obtained only in that way.” Id. With this Congressional objective in mind, the Court concluded that "the substantive law to apply in suits under § 301(a) is federal law, which the courts must fashion from the policy of our national labor laws.” Id. at 456.

The import of Lincoln Mills was demonstrated when the Court first addressed the preemptive effect of §301 in Local 174, Teamsters v Lucas Flour Co, 369 US 95; 82 S Ct 571; 7 L Ed 2d 593 (1962). At issue was whether a suit in state court seeking "damages for business losses caused by [a union] strike” could be decided by the application of state contract law. Id. at 97. Because resolution of the dispute turned on . the question whether the strike breached the collective-bargaining agreement, the Court held that "incompatible doctrines of local law must give way to principles of federal labor law.” Id. at 102. In broad terms, the Court declared:

The dimensions of § 301 require the conclusion that substantive principles of federal labor law must be paramount in the area covered by the statute. Comprehensiveness is inherent in the process by which the law is to be formulated under - the mandate of Lincoln Mills, requiring issues raised in suits of a kind covered by § 301 to be decided according to the precepts of federal labor policy.

More important, the subject matter of § 301(a) "is peculiarly one that calls for uniform law.” [Id. at 103.]

While Lucas Flour made clear that a state action that alleges breach of a collective-bargaining agreement is preempted by § 301,¹¹ the Court’s subsequent task of delineating the extent to which § 301 displaces state-law claims when breach of a collective-bargaining agreement is not specifically alleged has proved to be more difficult.

In Allis-Chalmers Corp v Lueck, supra at 210, the Court observed that "[i]f the policies that animate § 301 are to be given their proper range, . . . the pre-emptive effect of § 301 must extend beyond suits alleging contract violations.” While acknowledging that some tort actions must be preempted to achieve the desired uniformity in the interpretation of labor contracts,¹² the Court took pains to explain that the reach of § 301 preemption has limits:

In extending the pre-emptive effect of § 301 beyond suits for breach of contract, it would be inconsistent with congressional intent ... to preempt state rules that proscribe conduct, or establish rights and obligations, independent of a labor contract.

Therefore, state-law rights and obligations that do not exist independently of private agreements, and that as a result can be waived or altered by agreement of private parties, are pre-empted by those agreements. [Id. at 212-213.]

In resolving the case then before it, the Lueck Court articulated this standard:

Our analysis must focus ... on whether the [state] tort action . . . confers nonnegotiable state-law rights on employers or employees independent of any right established by contract, or, instead, whether evaluation of the tort claim is inextricably intertwined with consideration of the terms of the labor contract. If the state tort law purports to define the meaning of the contract relationship, that law is pre-empted, [Id. at 213. Emphasis added.][¹³]

In Lingle v Norge Div of Magic Chef, Inc, supra at 413, the Supreme Court again emphasized the limits of § 301 preemption. In a unanimous decision, the Court ruled that "application of state law is pre-empted by § 301 . . . only if such application requires the interpretation of a collective-bargaining agreement.” The Court observed that the plaintiff’s retaliatory discharge claim under Illinois law required a factual determination regarding "the conduct of the employee and the conduct and motivation of the employer.” Id. at 407. Because "this purely factual inquiry . . . does not turn on the meaning of any provision of a collective-bargaining agreement,” the Court concluded:

[T]he state-law remedy in this case is "independent” of the collective-bargaining agreement in the sense of "independent” that matters for § 301 preemption purposes: resolution of the state-law claim does not require construing the collective-bargaining agreement. [Id. at 407.]

It has been suggested that development of the scope of preemption under § 301 has been driven, in part, by an effort to make certain that " 'parties [are not allowed] to evade the requirements of § 301 by relabeling their contract claims as claims for tortious breach of contract.’ ” United Steelworkers of America v Rawson, 495 US 362, 369; 110 S Ct 1904; 109 L Ed 2d 362 (1990) (quoting Lueck, supra at 211).¹⁴

Guided by these general principles and parameters, we turn now to an analysis of the issue before us — whether resolution of plaintiff’s state civil rights claim requires interpretation of the collective-bargaining agreement.

B

We begin by focusing on the essential elements of the state-law claim advanced by plaintiff. She complains that a similarly situated, nonblack male employee with less qualifications and lower seniority received special treatment by defendant during the testing process, in violation of her rights protected by the Michigan Civil Rights Act.¹⁵ In order to establish a prima facie case of "[d]isparate treatment” race discrimination, a plaintiff "must show that [she] was a member of the class entitled to protection under the act and that, for the same or similar conduct, [she] was treated differently than one who was a member of a different race.” Schipani v Ford Motor Co, 102 Mich App 606, 617; 302 NW2d 307 (1981) (citing Pompey v General Motors Corp, 385 Mich 537; 189 NW2d 243 [1971]). Likewise, "the essence of a sex discrimination civil rights suit is that similarly situated people have been treated differently because of their sex.” Radtke v Everett, 442 Mich 368, 379; 501 NW2d 155 (1993). See also Marsh v Dep’t of Civil Service (After Remand), 173 Mich App 72; 433 NW2d 820 (1988).

Plaintiff argues that resolution of her state discrimination claim turns on a factual determination regarding defendant’s conduct and motivation in allowing Mr. Krawczyk to retake the welding test and in reinstating his seniority. Contending that her claim can be resolved without interpreting the collective-bargaining agreement, plaintiff posits that it is "independent” of the agreement and not preempted by § 301. We agree.

Highly instructive is a statement by the Lingle Court that acknowledges the unique character of a state discrimination claim:_

In the typical case a state tribunal could resolve either a discriminatory or retaliatory discharge claim without interpreting the "just cause” language of a collective-bargaining agreement. [Lingle, 486 US 413. Emphasis added.]

Implicit is the recognition that claims under state statutes prohibiting discrimination often turn on issues of fact pertaining to the conduct or motive of the defendant, rather than on the interpretation of a collective-bargaining agreement. That is the case here.

It is undisputed that Mr. Krawczyk had an earlier date of entry than plaintiff, and therefore more seniority within the welder’s classification at the point when the Weld Tech course began on February 28, 1983. The parties have registered no disagreement concerning the terms or meaning of the collective-bargaining agreement as it relates to seniority, shift preference, or lay off. Although defendant seeks to emphasize that Mr. Krawczyk was awarded the shift preference because of a higher seniority ranking, the critical issue is whether the decisions to allow Mr. Krawczyk to retake the test and then to reinstate his seniority were based on racial or gender considerations.

Plaintiff’s argument that her claim is independent of the collective-bargaining agreement is strongly buttressed by the fact that she is asserting nonnegotiable state rights — secured by the Michigan Civil Rights Act. These are rights that apply to all employees, whether or not they belong to a union. Such rights cannot be waived or conditioned on success at the bargaining table.

While acknowledging that this factor alone may not establish the independence of a state claim, the Lingle Court took note of the fact that "most state laws that are not pre-empted by § 301 will grant nonnegotiable rights that are shared by all state workers . . . .” Id. at 408, n 7.

The jurisprudence of the United States Court of Appeals for the Sixth Circuit is in accord. In Smolarek v Chrysler Corp, 879 F2d 1326 (CA 6, 1989) (en banc), cert den Chrysler Corp v Smolarek, 493 US 992 (1989), an eight-judge majority ruled that the particular claims presented under Michigan’s Handicappers’ Civil Rights Act (hcra), MCL 37.1101 et seq.; MSA 3.550(101) et seq., were not preempted by § 301. Id. at 1335. Seven judges dissented in part. Speaking through Judge Kennedy, they reasoned that because no right of accommodation is conferred upon a handicapped employee by the hcra, the accommodation sought by the plaintiffs in Smolarek was negotiable, and that to that extent such a claim is preempted by § 301. However, even the dissenting judges recognized that interpretation of a collective-bargaining agreement is not required in the typical case alleging race, sex, or age discrimination. Judge Kennedy explained:

In race, sex, and age cases, interpretation of the collective bargaining contract is unnecessary. . . . The right to be free of race, sex, or age discrimination is independent of any ancillary right contained in a collective bargaining agreement.

Likewise, if an employee is terminated for a handicap unrelated to his ability to perform the functions of his job, interpretation of a collective bargaining agreement is unnecessary to his claim. The hcra has provided a nonnegotiable right to be free of this type of discrimination. [Id. at 1338 (Kennedy, J., dissenting in part).][¹⁶]

Relying on Lingle and Smolarek, supra, the United States Court of Appeals for the Sixth Circuit later held in O’Shea v Detroit News, 887 F2d 683 (CA 6, 1989), that a plaintiff’s hcra discrimination claim was not preempted by § 301. Recognizing the nonnegotiability of certain rights under the hcra, the court explained:

Michigan employees have the right not to be discriminated against on the basis of age or handicap without regard to the collective bargaining agreement’s language about an employee’s rights. [Id. at 687.][¹⁷]

Other federal courts have embraced the notion that state antidiscrimination statutes confer nonnegotiable rights that are independent of any collective-bargaining agreement. In particular, the United States Court of Appeals for the Ninth Circuit, relying on Lingle, has ruled generally that state discrimination claims, whether based on age, race, handicap, religion, or national origin, are not preempted by § 301. See, e.g., Ramirez v Fox Television Station, Inc, 998 F2d 743 (CA 9, 1993).¹⁸

In Ramirez, the court reasoned that a suit charging discrimination on the basis of national origin was not preempted by § 301 because the plaintiff asserted rights under the California Employment Act that are " 'nonnegotiable’ ” and " 'cannot be removed by private contract.’ ” Id. at 748, quoting Cook v Lindsay Olive Growers, 911 F2d 233, 240 (CA 9, 1990). The Ramirez defendant also argued that the plaintiff’s claim would require "reference” to the collective-bargaining agreement. However, the court rejected any suggestion that mere "reference” to a collective-bargaining agreement is the equivalent of "interpretation” of the agreement. Id.

In Rawson, supra, the United States Supreme Court focused on a different ground worthy of consideration in the § 301 analysis: the origin of the legal duty allegedly breached by the defendant. In that case, ninety-one miners were killed in an underground fire. Survivors of four deceased miners sued the United Steelworkers of America, claiming that the decedents’ deaths were caused by negligent acts of the union. They alleged that the

members of the safety committee designated by the Union had been inadequately trained on mine safety issues . . . [and] had negligently performed inspections of the mine that it had promised to conduct, failing to uncover obvious and discoverable deficiencies. [Id. at 365.]

The Rawson Court ruled that the state-law negligence claim was preempted by § 301 because the duty owed to the miners did not exist independent of the collective-bargaining agreement. The Court explained:

This is not a situation where the Union’s delegates are accused of acting in a way that might violate the duty of reasonable care owed to every person in society. [Id. at 371.][¹⁹]

We believe that this reasoning in Rawson reinforces plaintiff’s argument in the instant case that her state civil rights claim is not dependent on the collective-bargaining agreement. Unlike the duty in Rawson, which was owed only to union members by virtue of the terms of a collective-bargaining agreement, the duty of this defendant to refrain from discriminating on the basis of race or gender is owed under the Michigan Civil Rights Act to every current and prospective employee, regardless of union status. Because the duty owed in this case does not stem from the collective-bargaining agreement, we find merit in plaintiff’s contention that her claim is independent for purposes of § 301 preemption.²⁰

On the other hand, defendant argues that resolution of plaintiff’s claim requires interpretation of the collective-bargaining agreement.²¹ We disagree. First, it is clear that Mr. Krawczyk was allowed by defendant to be retested to regain his seniority out of a perceived notion of fairness rather than reliance upon any provision of the collective-bargaining agreement.²² Indeed, the agreement and the letter of understanding are completely silent with respect to the treatment to be accorded an employee in Mr. Krawczyk’s situation.

That defendant’s conduct and motivation were not based on the agreement or letter of understanding was conceded by defendant’s counsel at oral argument. In response to a question posed by Justice Boyle, defendant’s counsel stated that the decision to allow Mr. Krawczyk to be retested was based solely on a notion of fairness, that, no provision in the letter of understanding referred to a welder’s right to retake an unsuccessful test because such a situation was unanticipated.

Moreover, even if we were to agree with defendant that portions of the collective-bargaining agreement, including the seniority provision, were relevant in determining the conduct and motives of defendant, this alone would not transform plaintiff’s claim into a federal contract dispute within the ambit of § 301.²³ The Supreme Court cautioned in Lueck that "not every dispute concerning employment, or tangentially involving a provision of a collective-bargaining agreement, is pre-empted by § 301 . . . .” Id. at 211. The Court further explained in Lingle, supra at 409-410:

[E]ven if dispute resolution pursuant to a collective-bargaining agreement, on the one hand, and state law, on the other, would require addressing precisely the same set of facts, as long as the state-law claim can be resolved without interpreting the agreement itself, the claim is "independent” of the agreement for § 301 pre-emption purposes.[²⁴]

Finally, although in this case the collective-bargaining agreement includes a provision designed to protect employees from race and gender discrimination,²⁵ this fact alone does not render plaintiff’s state law claim "dependent” on the collective-bargaining agreement. As the Supreme Court observed in Lingle, supra at 412-413:

[T]he mere fact that a broad contractual protection against discriminatory — or retaliatory — discharge may provide a remedy for conduct that coincidentally violates state law does not make the existence or the contours of the state-law violation dependent upon the terms of the private contract.

Consequently, "[p]arallel protection under the terms of the contract and under state discrimination law does not mean that the contract must be interpreted to resolve the state law claim.”²⁶ Like the United States Supreme Court, we decline to rule that § 301 preempts plaintiff’s state discrimination claim merely because the employer has agreed to comply with the statutory mandates of Michigan labor law.

hi

In conclusion, plaintiff asserts a claim against her employer under the Michigan Civil Rights Act for damages as a result of an alleged violation of her nonnegotiable state right to be free from racial and gender-based discrimination in the workplace. We find that this right is independent of the collective-bargaining agreement, i.e., the resolution of her claim does not require an interpretation of the collective-bargaining agreement. We hold, therefore, that because plaintiff’s discrimination claim is independent of the agreement, her claim is not preempted by § 301 of the lmra.²⁷

We affirm the decision of the Court of Appeals and remand the case to the trial court for further proceedings consistent with this opinion.²⁸

Cavanagh, C.J., and Levin, Brickley, and Mallett, JJ., concurred with Griffin, J.

1 29 USC 185(a).

2 Brooks & Perkins was a division of AAR, Inc., an Illinois corporation.

3 Weld Tech was then a subsidiary of the Chrysler Corporation.

4 Following is the full text of the letter of understanding:

This Agreement between the parties has been reached to address a special need for welders to satisfy customer schedules and is not intended to replace or modify the Memorandum of Understanding reached February 1,1983.

Since the bulk of the present welding requirements are confined to one quarter inch thick, tee joint, Mig configuration, it is agreed Brooks & Perkins will recall and place into active employment those welders who are successful in passing the qualification test for that type joint. These employees will be considered as having a limited qualification. It is further understood that any other test successfully completed will qualify that individual to weld those specific type welds on Brooks & Perkins’ products.

It is agreed that all laid off welders have been offered the opportunity to attend "Weld Tech Welding Education Center” and as specified in the prior Agreement of February 1, 1983, must successfully conclude the training to be considered as qualified to retain seniority within the Welder’s Classification.

Employees on the lay-off list may, at their option, waive the opportunity to accept recall into a limited qualification status, to continue training without affecting their seniority and upon successful completion of training, use their seniority to displace a junior employee.

5 Article VIII of the collective-bargaining agreement provides that seniority of employees in the welders’ classification is determined by date of entry. It is undisputed that Mr. Krawczyk had an earlier date of entry than plaintiff.

6 Article VIII, § 6 of the collective-bargaining agreement provides:

Employees shall have shift preference by date-of-entry seniority within the classification. This right may be exercised once each six (6) month period. Shift preference will also be granted during the year to bump a probationary employee within the classification. All shift changes will be on Mondays if practicable.

7 While removal jurisdiction based upon a federal question is determined by review of the complaint, 14A Wright, Miller & Cooper, Federal Practice & Procedure, § 3721, p 213 (and cases cited therein), federal courts will look beyond the pleadings in determining whether a state law claim is preempted by § 301. United Steelworkers of America v Rawson, 495 US 362; 110 S Ct 1904; 109 L Ed 2d 362 (1990); Electrical Workers, AFL-CIO v Hechler, 481 US 851, 861; 107 S Ct 2161; 95 L Ed 2d 791 (1987).

8 In its opinion, the trial court stated in part:

Defendant first maintains that the instant Elliott-Larsen claim for deprivation of civil rights is pre-empted by federal law, to wit § 301 . . . ; secondly defendant submits that there is no genuine issue of material fact and it is entitled to judgment as a matter of law, MCR 2.116(0(10).

Inasmuch as the pre-emption issue is potentially dispositive of the entire case, the Court examines it first.

[T]he Court finds that [plaintiff’s claim is] pre-empted by Federal Labor Law. Defendant’s motion shall be granted. It is unnecessary to discuss Defendant’s remaining issue.

9 198 Mich App 28, 30; 497 NW2d 512 (1993).

10 Article VI, § 2 of the United States Constitution provides in part:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

11 The Lucas Flour Court reasoned:

The possibility that individual contract terms might have different meanings under state and federal law would inevitably exert a disruptive influence upon both the negotiation and administration of collective agreements. [Id. at 103.]

See also Avco Corp v Aero Lodge No 735, 390 US 557, 560; 88 S Ct 1235; 20 L Ed 2d 126 (1968) (where the plaintiff sought enforcement of a no-strike clause of a collective-bargaining agreement in a state court action, the Supreme Court affirmed the removal of the action to federal district court and noted that "[a]n action arising under § 301 is controlled by federal substantive law even though it is brought in a state court”).

12 The Court explained that, in order to truly facilitate "interpretive uniformity and predictability” in collective-bargaining agreements,

questions relating to what the parties . . . agreed, and what legal consequences were intended to flow from breaches of that agreement, must be resolved by reference to uniform federal law, whether such questions arise in the context of a suit for breach of contract or in a suit alleging liability in tort. Any other result would elevate form over substance and allow parties to evade the requirements of § 301 by relabeling their contract claims as claims for tortious breach of contract. [Id. at 211.]

13 See also Caterpillar, Inc v Williams, 482 US 386, 394; 107 S Ct 2425; 96 L Ed 2d 318 (1987) ("Section 301 governs claims founded directly on rights created by collective-bargaining agreements, and álso claims 'substantially dependent on analysis of a collective-bargaining agreement’ ”).

14 See also Van Wezel Stone, The legacy of industrial pluralism: The tension between individual employment rights and the New Deal collective bargaining system, 59 U Chi L R 575, 594 (1992).

15 MCL 37.2202; MSA 3.548(202) provides, in pertinent part:

(1) An employer shall not do any of the following:

(a) Fail or refuse to hire, or recruit, discharge, or otherwise discriminate against an individual with respect to employment . . . because of religion, race, color, national origin, age, sex, height, weight, or marital status.

16 Judge Kennedy agreed with the Smolarek majority regarding the appropriate standard for determining § 301 preemption. However, she disagreed with the majority’s application of the standard to the plaintiffs’ hcra claims. Noting that Michigan’s hcra prohibits discrimination only with respect to "a handicap that is unrelated to the individual’s ability to perform the duties of a particular job or position,” MCL 37.1202(1)(a); MSA 3.550(202)(1)(a), see Carr v General Motora Corp, 425 Mich 313; 389 NW2d 686 (1986), Judge Kennedy concluded that "the hcra confers no right of accommodation,” and accommodation is therefore "a negotiable right provided either by . . . the collective bargaining agreement, or voluntarily.” Id. at 1338.

17 See also Gavie v Stroh Brewery Co, 668 F Supp 608 (ED Mich, 1987) , aff’d 877 F2d 62 (CA 6, 1989) (§ 301 does not preempt an age discrimination claim because such a claim invokes a state statute that confers rights that are independent of any right established by contract).

18 See also Cook v Lindsay Olive Growers, 911 F2d 233 (CA 9, 1990) (a religious discrimination suit was not preempted); Jackson v Southern California Gas Co, 881 F2d 638 (CA 9, 1989) (a racial discrimination suit was not preempted); Chmiel v Beverly Wilshire Hotel Co, 873 F2d 1283 (CA 9, 1989) (an age discrimination suit was not preempted); Ackerman v Western Electric Co, 860 F2d 1514 (CA 9, 1988) (a handicap discrimination suit was not preempted).

19 See also Electrical Workers v Hechler, n 7 supra (the plaintiff’s claim that the union negligently failed to provide a safe workplace was held completely preempted because the union’s duty of care arose under the collective-bargaining agreement).

20 Our determination that plaintiff’s state civil rights claim is independent of the collective-bargaining agreement is consistent with the United States Supreme Court’s view of similar rights protected by title VII of the Civil Rights Act, 42 USC 2000e et seq. In Alexander v Gardner-Denver Co, 415 US 36, 48-49; 94 S Ct 1011; 39 L Ed 2d 147 (1974), a unanimous Court, speaking through Justice Powell, ruled that a discharged employee could pursue a title VII action in federal court, despite the fact that he had previously submitted his claim to arbitration pursuant to a nondiscrimination clause in a collective-bargaining agreement. The Court explained:

[T]he legislative history of Title VII manifests a congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes. The clear inference is that Title VII was designed to supplement, rather than supplant, existing laws and institutions relating to employment discrimination.

21 Defendant also contends that federal courts have exclusive jurisdiction over labor contract disputes that arise under § 301 of the lmra. However, this question was settled in Dowd Box Co v Courtney, 368 US 502; 82 S Ct 519; 7 L Ed 2d 483 (1962), wherein the United States Supreme Court determined that, while federal law is applicable, state and federal courts have concurrent jurisdiction with respect to contract disputes within the ambit of § 301.

22 In an affidavit, Mr. Howat, defendant’s personnel manager, stated that he was approached by a union representative who complained that the school had "unreasonably and unfairly” delayed in processing the testing of Mr. Krawczyk. "It was agreed that he should not be punished for an oversight by Weld Tech,” and that he "would be allowed to re-take the test . . . and upon passing, he would be recalled from layoff and his seniority would be restored.”

23 Similarly, in Hall v Kelsey-Hayes Co, supra, the plaintiff, a black male, alleged that he and other black employees were denied wait-listing for apprenticeships, while white employees secured positions on the waiting list and were ultimately placed in an apprenticeship program. On the basis of a review of the plaintiff’s complaint in Hall, the panel unanimously agreed that the complaint did not assert denial of rights under the collective-bargaining agreement; rather, he claimed that the defendant treated him disparately compared to similarly situated white employees. Thus, the panel opined that the focus of its inquiry was whether the plaintiff was treated in a disparate manner, motivated by racial discrimination without regard to the terms of the collective-bargaining agreement.

The Hall panel reasoned:

State law discrimination claims which assert denial of rights under a collective bargaining contract necessarily require the interpretation of the contract, and so are preempted by § 301. . . . However, where the plaintiff alleges discriminatory disparate treatment and the defendant claims that plaintiff’s treatment was in accordance with the terms of the collective bargaining contract, there is no federal preemption of plaintiff’s discrimination claims. [Id. at 280-281.]

24 See also Smolarek, supra at 1334, in which the court concluded that the plaintiff’s handicap discrimination claim was not preempted despite the fact, that "Chrysler is likely to assert as its defense to [the plaintiff’s] cláim that it based its actions on the provisions of the labor agreement regarding reinstatement and accommodation.” The court reasoned:

In order to resolve the hcra claim in light of this defense, a court need only decide whether Chrysler took actions adverse to [the plaintiff] because of his handicap or rather solely because Chrysler felt bound by the union agreement to take the actions or for some other legitimate reason. It is not necessary to decide at the outset whether or not Chrysler’s interpretation of the agreement is correct as a matter of federal labor law. The question is a factual one: What was Chrysler’s motivation? [itf.]

25 Article III-A, ¶ 3, of the collective-bargaining agreement provides in part:

The provisions of this Agreement shall apply to all employees covered by this Agreement without discrimination on account of race, color, religion, age, sex, marital status, handicap, national origin, creed or political affiliation .... In addition, the Company intends fully to comply with applicable state and federal statutes, relating to non-discrimination on account of race, color, religion, age, sex, marital status, national origin, creed, political affiliation or handicap.

26 White, Section 301’s preemption of state law claims: A model for analysis, 41 Ala L R 377, 428 (1990).

27 Amicus curiae Michigan State AFL-CIO argues that our decision today should apply "only to state law discrimination claims brought against employers and not to such claims brought against labor organizations.” See Maynard v Revere Copper Products, Inc, 773 F2d 733 (CA 6, 1985). We neither decide nor intimate whether a similar claim brought by plaintiff against her union would be preempted.

28 Although we conclude that plaintiff’s claim is not preempted by § 301 of the lmra, we neither decide nor intimate any view with respect to other grounds advanced in the motion for summary disposition, i.e., MCR 2.116(C)(8) and (10).