Lead Opinion
OPINION
{1} Plaintiff William R. Humphries argues the district court improperly dismissed his claims. He alleged below that his employers Pay and Save, Inc., and Tim Cotton (collectively Defendants) improperly terminated his employment on suspicion that he engaged in union-organizing activities. The district court concluded that federal labor law preempted Plaintiff’s claims. We agree and affirm.
BACKGROUND
{2} On May 13, 2008, Plaintiff filed a complaint in the district court seeking relief on six counts: (1) breach of contract; (2) breach of the covenant of good faith and fair dealing; (3) negligent or intentional misrepresentation; (4) wrongful termination; (5) tortious interference with contractual relations (against Tim Cotton individually); and (6) declaratory relief. All counts relied on the same core of common facts. Specifically, Plaintiff alleged that until he was terminated on February 23, 2006, he had been employed as a produce manager for five years at Lowe’s Grocery #55 in Alamogordo, New Mexico. Defendant Pay and Save, Inc., owns and operates Lowe’s Grocery # 55, and Defendant Tim Cotton was the store manager at the time Plaintiff was terminated. Plaintiff alleged that although he had never been “reprimanded or disciplined ... in any manner,” Defendants fired him because they “believed [he] was involved in organizing the employees of Lowes.” Plaintiff contended that termination in this manner was unjust and that Defendants’ actions resulted in numerous injuries for which he sought compensation. Plaintiffs complaint for wrongful termination specifically asserted Defendants’ violation of state public policy that encourages the right to form, join, organize, and collectively bargain as a member of a labor organization.
{3} On July 7, 2008, Defendants filed a motion to dismiss the complaint. In pertinent part, they argued that pursuant to Rule 1 — 012(B)(1) NMRA and Rule 1-012(B)(6) NMRA, the federal labor law vested the National Labor Relations Board (NLRB) with exclusive and primary jurisdiction over Plaintiffs claims. Citing San Diego Building Trades Council v. Garmon,
{4} The district court held a hearing on Defendants’ motion via conference call, and at its conclusion, the district court granted Defendants’ motion on the basis of federal preemption. It found that each of Plaintiffs claims was based on Defendants alleged belief that Plaintiff “was engaged in union activity” and found that claims involving termination for such activities constituted a “federal issue.”
{5} Plaintiff now appeals the district court’s dismissal of his complaint. He contends that because his claims for breach of contract, breach of the covenant of good faith and fair dealing, misrepresentation, wrongful termination, and tortious interference do not originate in a collective bargaining agreement, they do not implicate federal labor law and are therefore not preempted. Plaintiff contends that because these claims are based exclusively on state law, they should be resolved in state court. He also argues that there is no reason why his other allegations cannot remain viable, even assuming his claim for wrongful termination is preempted. As such, Plaintiff contends the district court was incorrect in refusing jurisdiction of all counts in his complaint without considering each individually. We consider these arguments below.
DISCUSSION
A. Standard of Review
{6} Motions to dismiss under Rule 1-012(B)(1) and (B)(6) are reviewed de novo. See Holguin v. Tsay Corp.,
B. Federal Preemption Generally
{7} Federal preemption derives from the Supremacy Clause of Article VI of the United States Constitution. Largo v. Atchison, Topeka, & Santa Fe Ry. Co.,
{8} First, under Section 301 of the LMRA, federal courts maintain exclusive jurisdiction over all disputes requiring interpretation of a collective bargaining agreement. Kerschion,
{9} Third, in Machinists, the United States Supreme Court recognized that even though some labor practices fall outside the restrictions of Sections 7 and 8 of the NLRA, such practices were intentionally omitted by Congress for the benefit of parties engaged in labor negotiations. Practices of this type are “weapons” intended by Congress “to be controlled by the free play of economic forces.” Machinists,
{10} We consider each type of preemption below. While Plaintiff is correct that his claims are not preempted by Section 301 of the LMRA, we hold that his claims still fail under Garmon, Beasley or Machinists, regardless of whether we consider him an employee or a supervisor under the NLRA.
C. Section 301 of the LMRA
{11} Section 301 preemption applies where the scope of the parties’ relationship is defined by either a collective bargaining agreement “between an employer and a labor organization” or a contract among labor organizations. Weise,
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 U.S.C. § 185(a). We have interpreted this language to forbid states from deciding matters under state law that are more appropriately analyzed under federal law as “duties assumed in collective-bargaining agreements.” Kerschion,
{12} Plaintiff argues his claims are not preempted because his relationship with Defendants was not governed by a collective bargaining agreement. He cites Mowry v. United Parcel Service,
{13} Yet, several types of federal preemption are applicable in the labor law context, and the absence of preemption under Section 301 does not void preemption from other sources. Plaintiff fails to analyze other types of preemption, specifically preemption under Garmon, Beasley, or Machinists. We now analyze Garmon, Beasley, and Machinists and conclude that Defendants’ reading of the case law is consistent with our own.
D. Garmon Preemption
{14} In Weise, this Court analyzed Garmon preemption in detail. Under that doctrine, whenever a disputed activity “is arguably subject to Section 7 or Section 8 of the NLRA, 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 policy is to be averted.” Weise,
{15} Garmon preemption functions to maintain a uniform national labor policy, but has several exceptions. Weise,
In other words, when an activity is arguably subject to Section 7 or 8 of the NLRA, state and federal courts must defer to the competence of the NLRB to avoid state interference with national labor policy. [The United States District Court] must first decide whether there is an arguable case for preemption; if there is, the Court must defer to the NLRB, and the Court may not entertain this case unless the NLRB has decided that the activity is not governed by Section 7 or 8.
Id. at 1265-66 (citation omitted).
{16} The analysis in Dominguez aligns closely with the facts of the case before us. In Dominguez, the plaintiff filed suit under state law against his employer, alleging he was terminated for pro-union beliefs and past union activities. Id. at 1265. The employer filed a motion to dismiss on the basis of NLRA preemption, which the court granted. Id. The court concluded that, “the conduct that forms the basis of [the plaintiffs state-law claim is [the defendant's alleged anti-union conduct, firing [the p]laintiff for his pro-union history and comments. The public policy he relies on to support his claim is a purported policy against anti-union activity.” Id. at 1266. As a result, “the public policy forming the basis of his retaliatory-discharge claim is exactly the same as the purposes behind the NLRA — to prevent anti-union actions by employers.” Id. Therefore, the court held that “[the defendant's action in this case, firing [the p]laintiff due to his supposed pro-union views, is arguably a violation of the NLRA and therefore subject to the jurisdiction of the NLRB.” Id.
{17} It is well-established that the protections of Sections 7 and 8 of the NLRA only cover employees. 29 U.S.C. §§ 157-158; see 29 U.S.C. § 152(3) (1978) (defining “employee”); 29 U.S.C. § 152(11) (defining “supervisor”); see Int’l Longshoremen’s Ass’n, AFL-CIO v. Davis,
{18} Because supervisors are not protected by the NLRA, their claims are not subject to Garmon preemption. Plaintiff argues that because his complaint identifies his title as “produce manager,” he should be considered a supervisor for purposes of the NLRA and his claims should not be preempted under Garmon. The term, supervisor, is specifically defined by the NLRA as someone who exercises the “authority ... 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.” 29 U.S.C. § 152(11). Plaintiffs argument falls short of this definition. Plaintiff never refers to himself as a supervisor in his complaint. The title, “produce manager,” says nothing of Plaintiffs functional authority over subordinate personnel, and Plaintiff provides no such information in his complaint. When Plaintiff previously filed a complaint with the NLRB in this ease, he referred to himself specifically as “William Humphreys, an employee.” These matters of record lead us to seriously question Plaintiffs alleged status as a supervisor under the NLRA.
{19} Despite such disagreements over Plaintiffs authority Dominguez reminds us that “[wjhere there is an arguable question as to whether an employee is a supervisor or an employee covered under the NLRA, that question must be submitted initially to the NLRB for a decision.”
E. Preemption under Beasley and Machinists
{20} In Beasley, the United States Supreme Court granted certiorari to consider whether state courts could hear claims brought by supervisors terminated for union activity.
{21} The Court decided Machinists two years later.
{22} So, if Plaintiff was a supervisor, the holdings of Beasley and Machinists control. See Bowlen v. ATR Coil Co., Inc.,
F. Severability
{23} Finally, we reject Plaintiffs argument that his claims are severable for purposes of federal preemption on these facts. We agree with the well-established general principle that some counts in a complaint may be preempted while others may continue in state court. See Garley,
CONCLUSION
{24} We affirm the district court. While it is true that Section 301 of the LMRA poses no obstacle to Plaintiffs claims, each still fails under either Garmon, Beasley or Machinists, regardless of whether we consider Plaintiff an employee or a supervisor under the NLRA.
{25} IT IS SO ORDERED.
Notes
. Plaintiff withdrew this NLRB complaint before it received consideration.
. We note that this language is repeated almost verbatim, in paragraph 24 of Plaintiffs complaint, asserting that Defendants’ violating these principles is the basis for Plaintiff's wrongful termination claim.
Concurrence Opinion
(specially concurring).
{26} I specially concur to emphasize that Plaintiffs claims were dismissed under Rule 1-012(B) without prejudice. Since the district court’s order does not indicate whether Plaintiffs claims were dismissed with or without prejudice, we presume that Plaintiffs claims were dismissed without prejudice. Cruz v. FTS Constr. Inc.,
{27} As a result of the district court’s dismissal of Plaintiffs claims without prejudice, Plaintiff still has a right to refile his state law claims if he can overcome issues regarding whether the NLRA preempts his state law claims and any statute of limitations issues. I agree with the majority that since the disputed activity is arguably subject to Section 7 or 8 of the NLRA, and there is an arguable question regarding whether Plaintiff is an employee covered under the NLRA, the proper forum to initially address those issues is before the NLRB. Majority Opinion, ¶¶ 16-19. As a result, the district court’s dismissal of Plaintiffs claims without prejudice was appropriate. See Dominguez,
{28} As the majority recognizes, if a disputed activity “is arguably subject to Section 7 or 8 of the NLRA, the States as well as the federal courts must defer to the exclusive [jurisdiction] of the NLRB if the danger of state interference with national policy is to be averted.” Majority Opinion, ¶ 14; Weise,
{29} As a result, I agree that since there is an arguable case for preemption, the NLRB has exclusive initial jurisdiction to determine whether the disputed activity is subject to the NLRA. However, as Davis clarifies, a state court’s initial determination that the NLRA arguably preempts state law does not necessarily preclude all future state law claims. Instead, if the NLRB determines that the conduct is not protected or prohibited under the NLRA, then a state court may entertain the litigation under the following circumstances: “(1) if the conduct in question is only a peripheral concern of the NLRA, or (2) if the state law claims touch interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, [a court] could not infer that Congress had deprived the States of the power to act.” Weise,
{30} I concur with the ultimate result in this ease and the dismissal of Plaintiffs claims without prejudice.