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STATE OF MICHIGAN COURT OF APPEALS

ANTHONY HENRY and KEITH WHITE, Plaintiffs-Appellees, v LABORERS LOCAL 1191, d/b/a ROAD CONSTRUCTION LABORERS OF MICHIGAN LOCAL 1191 and MICHAEL AARON, Defendant-Appellants and BRUCE RUEDISUELI, Defendant-Appellee.

UNPUBLISHED July 3, 2012

No. 302373 Wayne Circuit Court LC No. 10-000384-CD

MICHAEL RAMSEY and GLENN DOWDY, Plaintiffs-Appellees, v LABORERS LOCAL 1191, d/b/a ROAD CONSTRUCTION LABORERS OF MICHIGAN LOCAL 1191 and MICHAEL AARON, Defendants-Appellants, and BRUCE RUEDISUELI, Defendant-Appellee. No. 302710 Wayne Circuit Court LC No. 10-004708-CD

Before: RONAYNE KRAUSE, P.J., and SAAD and WILDER, JJ.

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PER CURIAM. In these consolidated appeals, defendants Laborers Local 1191 (Local) and Michael Aaron (Aaron) (defendants) appeal by leave granted orders of the Wayne Circuit Court denying their motions for summary disposition pursuant to MCR 2.116(C)(4). Plaintiffs commenced this action under Michigan's Whistleblower Protection Act (WPA), MCL 15.361 et seq., on the basis of the termination of their employment as business agents of Local 1191, a labor union. Aaron was the union's business manager. Plaintiffs contend that they were terminated from their employment--and bring no claims based on any alleged infringement of their membership rights--because they reported or participated in an investigation of allegedly illegal conduct in which they believed the union had engaged. Defendants' motions for summary disposition contended that the Federal Labor Management Reporting and Disclosure Act (LMRDA), 29 USC 401 et seq., and National Labor Relations Act (NLRA), 29 USC 151 et seq., preempt plaintiffs' state law claims. We affirm. Congress has the power to preempt state law. US Const, art 6, cl 2. However, we generally presume that it does not, Duprey v Huron & Eastern R Co, Inc, 237 Mich App 662, 665; 604 NW2d 702 (1999), and that presumption can be overcome only where Congress clearly and unequivocally intends to do so. Wayne Co Bd of Comm'rs v Wayne Co Airport Authority, 253 Mich App 144, 198; 688 NW2d 804 (2002). Preemption may be express, where Congress has explicitly stated its intent to preempt state law; "field," where state law regulates conduct in a field that Congress has intended to occupy exclusively; or "conflict," where state law is in actual conflict with federal law. Grand Trunk Western Railroad Co v City of Fenton, 439 Mich 240, 243-244; 482 NW2d 706 (1992). Defendants contend that both field preemption and conflict preemption apply here. Field preemption requires federal law to occupy a field so thoroughly that it is reasonably inferable that Congress did not intend to permit states to supplement it. Cipollone v Liggett Group, Inc, 505 US 504, 516; 112 S Ct 2608; 120 L Ed 2d 407 (1992). Conflict preemption occurs "where it is impossible for a private party to comply with both state and federal requirements," or where the state law "`stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'" English v General Electric Co, 496 US 72, 79; 110 S Ct 2270; 110 L Ed 2d 65 (1990) (citation omitted). "If a state-law proceeding is preempted by federal law, the state court lacks subject-matter jurisdiction to hear the state-law cause of action." Packowski v United Food & Commercial Workers Local 951, 289 Mich App 132, 139-140; 796 NW2d 94 (2010). Section 2 of the WPA provides: An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee's compensation, terms, conditions, location, or privileges of employment because the employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of this state, a political subdivision of this state, or the United States to a public body, unless the employee knows that the report is false, or because an employee

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is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action.1 [MCL 15.362 (footnote added).] "[T]he only rationale for the WPA" is "to encourage those actions that assist in the protection of the public by in turn protecting the employee." Chandler v Dowell Schlumberger, Inc, 214 Mich App 111, 122; 542 NW2d 310 (1995). Under the WPA, an "employee" is in relevant part "a person who performs a service for wages or other renumeration under a contract of hire, written or oral, express or implied" MCL 15.361(a). An "employee" is in relevant part "a person who has 1 or more employees." MCL 15.361(b). Of particular significance, plaintiffs' claims arise out of the termination of their employment by Local 1191. The LMRDA "was the product of congressional concern with widespread abuses of power by union leadership." Finnegan v Leu, 456 US 431, 435; 102 S Ct 1867; 72 L Ed 2d 239 (1982). Title I of the Act, 29 USC 411-415, was introduced as the "Bill of Rights of Members of Labor Organizations." Finnegan, 456 US at 435. The Finnegan Court found that "it was rankand-file union members--not union officers or employees, as such--whom Congress sought to protect." Id. at 437. "[T]he Act's overriding objective was to ensure that unions would be democratically governed, and responsive to the will of the union membership as expressed in open, periodic elections." Id. at 441. "[T]he ability of an elected union president to select his own administrators is an integral part of ensuring a union administration's responsiveness to the mandate of the union election." Id. "Consequently there is no violation of the LMRDA if a staff member's discharge, which does not affect his union membership, is based on union patronage, because the loyalty and cooperation of union employees is necessary to insure that the union is democratically governed and responsive to its membership." Montoya v Local Union III of the Int'l Brotherhood of Electrical Workers, 755 P2d 1221, 1223 (Colo App, 1988). This Court recently concluded that the LMRDA conflicts with and preempts a state wrongful-discharge claim based on a just-cause termination policy. Packowski, 289 Mich App at 136, 144. The "plaintiff's claim would conflict with the efforts of elected union officials to implement the policies on which they were elected and, in that way, interfere with one of the purposes of the LMRDA." Id. at 148. "The democratic purposes of the LMRDA would be contravened by allowing a demoted or discharged business agent or organizer to sue for wrongful discharge." Id. at 144. Significantly, however, Packowski only considered the "plaintiff's claim that he was terminated without just cause." Id. at 134. Consequently, an exception to preemption, recognized in other cases, where a union employee claims wrongful discharge for refusing "to commit or aid in committing a crime," did not apply because the plaintiff in Packowski was terminated for failing to follow legitimate policies, not for refusing to commit or aid in committing a crime. Packowski, 289 Mich App at 146. This Court also noted

Plaintiffs reported the alleged illegal conduct to, or participated in an investigation by, the United States Department of Labor. Under MCL 15.361(d), a federal agency may qualify as a law enforcement agency and, thus, a "public body." Ernesting v Ave Maria College, 274 Mich App 506, 514-515, 517; 736 NW2d 574 (2007) (concluding that the Department of Education was a law enforcement agency).

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that any claim for retaliation for participating in the Department of Labor investigation could be brought in federal court under

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