Cormier v. Simplex Tech. CV-98-500-JD 03/04/99 UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Philip E. Cormier
v. Civil No. 98-500-JD
Simplex Technologies, Inc.
O R D E R
This civil action is before the court on diversity
jurisdiction. Plaintiff Philip E. Cormier asserts a wrongful
discharge claim against his employer. Simplex Technologies, Inc
for allegedly terminating his employment in retaliation for his
union-organizing activity and his reports of safety violations.
Currently before the court is defendant's motion for summary
judgment, to which plaintiff objects.1
Background
_____ Simplex produces fiber optic telecommunications cable.
Cormier worked at Simplex's Portsmouth, New Hampshire, facility
from 1978 until his termination on August 24, 1995. When he
began working at Simplex, Cormier joined the International
Brotherhood of Electrical Workers union. After a labor dispute
defendant has also reguested oral argument. As the court does not feel oral argument would be helpful, defendant's regue is hereby denied. in 1986 that led to a company lock-out, Cormier was one of
several union employees reinstated pursuant to an agreement with
the National Labor Relations Board (NLRB). Shortly after his
reinstatement, Cormier became chief steward for the union and
remained in that position until the union was decertified in
1989. In 1993 the Teamsters' union attempted to organize
Simplex's employees. Cormier was involved in this effort and
acted as an observer on behalf of the Teamsters at the union
election. In 1995 Cormier was approached by a coworker who asked
him to hand out cards on behalf of the Longshoremen's union, and
Cormier agreed to do so.
In addition to his union activities, Cormier served on the
company safety committee. As a member of the committee, he
regularly made management aware of safety problems within the
plant. In 1989 he reported the continued existence of various
workplace hazards to the Occupational Safety and Health
Administration (OSHA). In 1993 Cormier also gave testimony
adverse to Simplex in a coworker's Whistleblowers Protection Act
hearing before the New Hampshire Department of Labor.
On August 23, 1995, Cormier was asked to perform a "rundown"
of the cable on the number 5-3 production line. To perform a
rundown, an employee takes a series of physical measurements
along the manufacturing line and records the measurements. If
the line is operating properly, the measurements will fall within
2 a specified range. If the measurements fall outside this range,
it indicates there is a serious problem, and the line must be
shut down and the product may have to be discarded. According to
Cormier, he performed the rundown in the specified manner and
recorded the results.
After Cormier had finished his shift on August 23, a Simplex
employee detected a problem with the cable on the number 5-3
production line. Another inspector validated the existence of a
nonconformity. Upon investigation, the company determined that
the cable line had been set up incorrectly and the mistake had
gone undetected for hours, allowing over 3.5 kilometers of
nonconforming cable to be produced. The cable had to be
scrapped, resulting in a loss of $100,000. Simplex concluded
that the eight individuals who had recorded the cable as within
the specified range, when in reality there was a large
discrepancy, must have entered conforming numbers in the log
without physically inspecting and measuring the cable.
As a result of this incident. Simplex decided to terminate
all eight employees. These employees were offered the
opportunity to resign or to undergo a peer review of the
termination. Cormier and three other employees reguested peer
review, three of the employees resigned, and one accepted his
termination. In each case reviewed, the peer review panel
decided that termination was the appropriate punishment.
3 On October 23, 1995, plaintiff filed an unfair labor charge
with the NLRB alleging that he was terminated in retaliation for
his union activities and his previous testimony against the
company. After investigating, the NLRB decided not to issue a
complaint, concluding that Cormier was "discharged for recording
improper measurements on an inspection report resulting in a
substantial economic loss to the Employer." Letter of January 4,
1996, from Helaine A. Simmonds, NLRB Acting Regional Director, to
Joni N. Esparian, Esq., attached to Defendant's Memorandum of Law
in Support of Motion for Summary Judgment. General Counsel of
the NLRB denied Cormier's appeal on February 28, 1996. Cormier
did not seek further review of the decision.
Discussion
1. Standard of Review
The role of summary judgment is "to pierce the boilerplate
of the pleadings and assay the parties' proof in order to
determine whether trial is actually required." Wynne v. Tufts
Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir. 1992)). It is
appropriate only if the "pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law." Fed. R. Civ. P. 56(c). The defendant bears
4 the initial burden of establishing the lack of a genuine issue of
material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986); Quintero de Quintero v. Aponte-Rogue, 974 F.2d 226, 227-
28 (1st Cir. 1992). The court must view the entire record in the
light most favorable to the plaintiff, "'indulging all reasonable
inferences in that party's favor.'" Mesnick v. General Elec.
C o ., 950 F.2d 816, 822 (1st Cir. 1991) (guoting Griqqs-Rvan v.
Smith, 904 F.2d 112, 115 (1st Cir. 1990), cert, denied, 1112 S.
C t . 2965 (1992). However, once the defendant has made a properly
supported motion for summary judgment, the plaintiff "may not
rest upon mere allegation or denials of his pleading, but must
set forth specific facts showing that there is a genuine issue
for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986) (citing Fed. R. Civ. P. 56(e)).
2. Garmon Preemption
_____ Simplex argues that Cormier's common-law claim is preempted
by the National Labor Relations Act. 29 U.S.C. §§ 157, 158
(1994). Defendant argues that the doctrine announced by the
United States Supreme Court in San Diego Bldq. Trades Council v.
Garmon, 359 U.S. 236 (1959), referred to as Garmon preemption,
precludes the court from hearing this claim. Cormier argues that
Garmon preemption does not apply at all, and if it does, this
case falls within one of the recognized exceptions.
5 In Garmon, the Supreme Court held that "when an activity is
arguably subject to § 7 or § 8 of the National Labor Relations
Act [29 U.S.C. §§ 157, 158], the states as well as the federal
courts must defer to the exclusive competence of the NLRB if the
danger of state interference with national labor policy is to be
averted." Chaulk Serv., Inc. v. Massachusetts Comm'n Against
Discrimination, 70 F.3d 1361, 1364 (1st Cir. 1995), cert, denied,
518 U.S. 1005 (1996). In determining when Garmon preemption
applies, "[t]he critical inguiry ... is not whether the State
is enforcing a law relating specifically to labor relations or
one of general application but whether the controversy presented
to the . . . court is identical to . . . or different from . . .
that which could have been, but was not, presented to the Labor
Board." Sears, Roebuck & Co. v. San Diego County Dist. Council
of Carpenters, 436 U.S. 180, 197 (1978).
Where, as in this case, the plaintiff has already brought
his or her complaint to the NLRB, "the [Garmon preemption]
rationale has [its] greatest validity . . . ." Platt v. Jack
Cooper Transport, Co., 959 F.2d 91, 95 (8th Cir. 1992) (guoting
Parker v. Connors Steel Co., 855 F.2d 1510, 1517 (11th Cir.
1988)). "'The risk of interference with the Board's jurisdiction
is . . . obvious and substantial' when an unsuccessful charge to
the Board is recast as a state law claim." Id. (guoting Local
6 926, International Union of Operating Engineers v. Jones, 4 60
U.S. 669, 683 (1983)).
Plaintiff first argues that Garmon preemption only applies
when the claim in question involves a collective bargaining
agreement. See Plaintiff's Memorandum of Law in Opposition to
Motion for Summary Judgment at 6. Plaintiff has apparently
confused Garmon preemption with section 301 preemption.
"[SJection 301 [of the Labor Management Relations Act, 29 U.S.C.
§ 185] preempts a state-law claim, whether founded upon the
state's positive or common law, if a court, in passing upon the
claim, would be required to interpret the collective bargaining
agreement." Filbotte v. Pennsylvania Truck Lines, Inc., 131 F.3d
21, 26 (1st Cir. 1997), cert, denied, 118 S. C t . 1806 (1998).
Although section 301 preemption displaces state law, unlike
Garmon preemption, it does not divest the federal courts of
jurisdiction. Thus the law is actually the converse of Cormier's
proposition. If this case involved a collective bargaining
agreement, the court would have jurisdiction over the claim. See
Newspaper Guild of Salem v. Ottawav Newspapers, Inc., 79 F.3d
1273, 1283 (1st Cir. 1996) ("[W]here a party's conduct gives rise
to both a charge of an unfair labor practice and a claimed breach
of a collective bargaining agreement, the NLRB and the district
court share 'concurrent jurisdiction' . . . ."). Under Garmon,
however, the question is whether the claim involves activity that
7 is arguably subject to section 7 or 8; the existence of a
collective bargaining agreement is irrelevant. See, e.g., Medeco
Security Locks, Inc. v. NLRB, 142 F.3d 733, 745 (4th Cir. 1998)
("[Section 7's] protection applies even to activities that do not
involve unions or collective bargaining.").
Section 8(a)(1) of the National Labor Relations Act (NLRA)
makes it an unfair labor practice for an employer "to interfere
with, restrain, or coerce employees in the exercise of the rights
guaranteed in [section 7 of the Act]." 29 U.S.C. § 158(a)(1).
Section 7 guarantees employees the right to "form, join or assist
labor organizations . . . and to engage in . . . concerted
activities for the purpose of collective bargaining or other
mutual aid or protection." 29 U.S.C. § 157. Section 8(a)(3)
provides that it is an unfair labor practice for an employer "by
discrimination in regard to hire or tenure of employment or any
term or condition of employment to encourage or discourage
membership in any labor organization . . . ." 29 U.S.C. §
158 (a) (3) .
Cormier's claim that Simplex terminated his employment in
retaliation for his union activities is clearly within the
purview of sections 7 and 8 of the NLRA. The guestion is whether
the other activities for which he alleges he was retaliated
against were "concerted activities for the purpose of . . mutual
aid or protection." 29 U.S.C. § 127. "As the Supreme court has noted, '[t]he term "concerted
activity" is not defined in the Act . . . .'" NLRB v. Portland
Airport Limousine Co., 163 F.3d 662, 665 (1st Cir. 1998) (quoting
NLRB v. City Disposal Systems, 465 U.S. 822, 830 (1984)). When
employees act together, they clearly satisfy the concerted
activity requirement; courts, however, have also found that
individual actions can be "concerted activity" in some
circumstances. See id. An individual acting alone may be
engaged in concerted activity "if the action is 'engaged in with
or on the authority of other employees, and not solely by and on
behalf of the employee himself.'" Id. (quoting Mevers Indus.,
Inc. v. Prill, 268 NLRB 493, 493 (1984)). This standard
"'encompasses those circumstances where individual employees seek
to initiate or to induce or to prepare for group activity, as
well as individual employees bringing truly group complaints to
the attention of management.'" Id. (quoting Mevers Indus., Inc.
v. Prill, 281 NLRB 882, 887 (1988) (Mevers I D ). Thus, when an
individual acts as a representative of other employees, his or
her actions will be protected concerted activity. See Rita Gail
Smith and Richard A. Parr II, Protection of Individual Action as
"Concerted Activity" Under the National Labor Relations Act, 68
C ornell L. R e v . 369, 379 (1983).
To fall within the ambit of section 7's protection, an
activity, in addition to being a concerted activity, must satisfy the mutual aid and protection clause of section 7. In "City
Disposal, supra, the Supreme Court regarded proof that an
employee action inures to the benefit of all . . . as proof that
the action comes within the 'mutual aid or protection' clause of
section 7." Myers II, supra, 281 NLRB 882, 1986 WL 54414 at *7.
"[T]he mutual aid or protection clause was intended broadly to
protect activities beyond grievance settlement, collective
bargaining and self-organization. It also extends to protect
employees' efforts to 'improve their lot as employees through
channels outside the immediate employee-employer relationship.'"
NLRB v. Coca-Cola Bottling Co., 811 F.2d 82, 88 (2d Cir. 1987)
(guoting Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978)).
In this case, it appears that the conduct Cormier complains
of is governed by sections 7 and 8. The court finds no force to
Cormier's contention that the NLRB does not have jurisdiction
over "employee reports to OSHA and retaliatory discharge for
serving on a company safety committee and policy review committee
where the employee is an activist for company accountability and
fairness." See Systems with Reliability, Inc., 322 NLRB 757,
1996 WL 740890 at *8 (1996) (finding discharging employee who
threatened to complain to OSHA was prohibited by section 7
because statement was part of concerted effort to improve safety
and health in workplace). First, Cormier's safety-related
complaints to the company and to OSHA were made in the context of
10 his participation on the safety committee, and thus were
concerted activity. As a member of the safety committee, Cormier
was clearly acting on behalf of other employees, with their
knowledge and consent.2 These complaints clearly satisfy the
mutual aid and protection clause as well.
Similarly, Cormier's testimony against the company was
given on behalf of another employee. The fact that Cormier did
so under subpoena does not take the testimony outside section 7's
protection. See id. In a similar case, the United States Court
of Appeals for the Second Circuit upheld the NLRB's finding that
being willing to testify in a criminal trial on behalf of a co
employee was protected activity under section 7, despite the
employer's argument that the fact that the testifying employee
was subpoenaed took the act outside the realm of protected
activity. See id. at 89. Thus it is clear that the conduct of
which Cormier complains is at least arguably subject to sections
7 and 8 of the NLRA. Furthermore, the fact that Cormier has
already brought an essentially identical complaint to the NLRB
alleging violations of section 8(a)(1) and 8(a)(3) belies his
current contention that this action is not governed by the NLRA.
Cormier's final argument is that this case falls within one
of the "three generally recognized exceptions to the NLRB's
2Indeed, plaintiff's complaint states that he acted "on behalf of his coworkers."
11 primary jurisdiction." Tamburello v. Comm-Tract Corp., 67 F.3d
973, 977 (1st Cir. 1995), cert, denied, 116 S. C t . 852 (1996).
The first is where Congress has expressly carved out an exception to the NLRB's primary jurisdiction. . . .
The second exception applies when the regulated activity touches "interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, " courts "could not infer that Congress had deprived the States of the power to act."
The third exception holds that the NLRB's exclusive jurisdiction does not apply if the regulated activity is merely a peripheral or collateral concern of the labor laws.
Id. (guoting Sears Roebuck, supra, 436 U.S. at 195).
Cormier first argues that this case falls within the third
exception for activities that are a peripheral or collateral
concern of the labor law. See id. To determine whether acase
falls within this exception, the court "focus[es] on the conduct
at the root of this controversy . . . ." Chaulk Serv., Inc.,
supra, 70 F.3d at 1365. In this case it is clear that the
conduct in guestion is "[t]he very same conduct [that] provides
the factual basis for the unfair labor practice charge . ..."
Id. Furthermore, the protection of an employee's right to engage
in concerted activities to improve health and safety in the
workplace is not a peripheral concern of the NLRB. "Rather, the
Board's authority to remedy such practices is central to its
purpose." Id. The fact that the NLRB did not issue a charge in
12 this case is not significant. See Plaintiff's Memorandum of Law
in Opposition to Motion for Summary Judgment at 9. The NLRB did
not find that it lacked jurisdiction over Cormier's claims, but
rather decided on the merits that there was no violation of the
NLRA. If Cormier disagreed with its decision, the appropriate
avenue for redress would have been to seek judicial review.
See 29 U.S.C. § 160(f) ("Any person aggrieved by a final order
of the Board . . . may obtain a review of such order in any
United States court of appeals in the circuit wherein the unfair
labor practice in guestion was alleged to have been engaged in
. . . .") .
Cormier's final argument is that this case falls within the
related so-called local interests exception. This
exception hinges, in the first place, upon the existence of a significant state interest in protecting its citizens from the challenged conduct. In [the] second place, the controversy which could be presented to the state court must be different from that which could have been presented to the NLRB. . . . [I]he critical inguiry is whether the controversy presented to the state court is identical to or different from that which could have been presented to the NLRB.
Chaulk Serv. Inc., supra, 70 F.3d at 1366. In this case it is
abundantly clear that the instant case is identical to that which
13 was presented to the NLRB.3 The local interests exception
therefore cannot apply.
Conclusion
For the abovementioned reasons, defendant's motion for
summary judgment (document 6) is granted. The clerk is ordered
to close the case.
SO ORDERED.
Joseph A. DiClerico, Jr. District Judge
March 4, 1999
cc: Joni N. Esperian, Esg. Steven E. Grill, Esg.
3Cormier's complaint to the NLRB stated, "[Cormier] has previously testified against the company in another employee's State Whistleblower statute hearing. He has also testified against the employer in OSHA proceedings. . . . The employee charges that the stated reasons for termination: intentional falsification of a company record and negligence resulting in inferior work, are a pretext for firing the employee for his history of Union support and his recent agreement to hand out Union organizing cards. It is retaliation for the employee having testified against the employer on more than one occasion." Exhibit E to Affidavit of John Conley, attached to Defendant's Motion for Summary Judgment. Similarly, plaintiff's complaint in the instant action states, "the defendant did with malice, bad faith and in retaliation terminate the plaintiff's employ ment . . . for his having engaged in years of Union organizing activity and having made health and safety complaints to [OSHA] and for challenging the defendant's employment practices as unfair, unjust or unlawful on behalf of his coworkers." Attachment to Notice of Removal.