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.,

(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,

(1986); Quintero de Quintero v. Aponte-Rogue,

, 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 .,

(1st Cir. 1991) (guoting Griqqs-Rvan v.

Smith,

(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.,

(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.

, 158

(1994). Defendant argues that the doctrine announced by the

United States Supreme Court in San Diego Bldq. Trades Council v.

Garmon,

(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 [

, 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,

(1st Cir. 1995), cert, denied,

(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,

(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.,

(8th Cir. 1992) (guoting

Parker v. Connors Steel Co.,

(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."

(guoting Local

6 926, International Union of Operating Engineers v. Jones, 4

, 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,

] 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.,

(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.,

, 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,

(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]."

(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."

. 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 . . . ."

(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."

. "As the Supreme court has noted, '[t]he term "concerted

activity" is not defined in the Act . . . .'" NLRB v. Portland

Airport Limousine Co.,

(1st Cir. 1998) (quoting

NLRB v. City Disposal Systems,

(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

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.'"

(quoting Mevers Indus.,

Inc. v. Prill,

, 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.'"

(quoting Mevers Indus., Inc.

v. Prill,

, 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

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,

,

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.,

(2d Cir. 1987)

(guoting Eastex, Inc. v. NLRB,

(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.,

,

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

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

. 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.,

(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.

(guoting Sears Roebuck, supra,

).

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

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,

. 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 . ..."

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."

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

(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,

. 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.

14