Anthony Henry and Keith White were fired as employees of Michigan Local 1191 (Road Construction Laborers); they sued the local and its business manager, Michael Aaron, under Michigan’s Whistleblower Protection Act, MCL 15.361 et seq. Henry and White claimed they were fired in retaliation for reporting their suspicions of union corruption to the U.S. Department of Labor.
The defendants, the local and Aaron, asked the circuit court to dismiss the plaintiffs’ whistleblower claims, contending 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., preempted the plaintiffs’ state law claims. The circuit court denied the defendants’ motions for summary disposition and the Court of Appeals affirmed in an unpublished per curiam opinion.
Under Article 6, cl. 2 of the U.S Constitution, Congress has the power to preempt state law, the Court of Appeals acknowledged. “However, we generally presume that it does not … and that presumption can be overcome only where Congress clearly and unequivocally intends to do so.
The Court of Appeals explained, “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.”
The defendants argued that the plaintiff’s state whistleblower claims were barred under both “field preemption” and “conflict preemption.” But the Court of Appeals disagreed, concluding that Michigan’s whistleblower law does not conflict with federal law, and that the federal statutes were not intended to exclusively occupy the field.
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
is requested by a public body to participate in an investigation, hearing, or inquiry
held by that public body, or a court action.
Under MCL 15.361(d), a federal agency, such as the Department of Labor, may qualify as a law enforcement agency and as a “public body” for a WPA claim, the Court of Appeals noted.
The WPA’s primary purpose is the protection of the public, the Court of Appeals said. By contrast, the federal LMRDA “was the product of congressional concern with widespread abuses of power by union leadership” and is intended to protect rank-and-file union members, the appellate panel observed.
“This Court recently concluded [in Packowski v United Food & Commercial Workers Local 951, 289 Mich App 132 (2010)] that the LMRDA conflicts with and preempts a state wrongful-discharge claim based on a just-cause termination policy.” In Packowski, the Court of Appeals concluded that “[t]he democratic purposes of the LMRDA would be contravened by allowing a demoted or discharged business agent or organizer to sue for wrongful discharge.” But the plaintiff in that case claimed he had been fired without just cause – not that he lost his job for refusing “to commit or aid in committing a crime.”
“Protecting terminations where an employee reports a crime, thereby refusing to conceal it, would also ‘encourage and conceal’ criminal acts and coercion … [a]ccordingly, plaintiffs’ WPA claims are not conflict-preempted by the LMRDA.”
Moreover, “field preemption” did not apply to the plaintiffs’ whistleblower claims, because the LMRDA protects the rights afforded union members because of their status as members, the appellate court said. Here, plaintiffs brought their claims as employees and have not alleged any infringement on their membership rights….”
The Court of Appeals also concluded that the NLRA does not preempt the plaintiffs’ WPA claims. “A claim for retaliatory discharge arising out of an employee’s report of suspected illegal activity or participation in investigation thereof is only of peripheral concern to the NLRA’s purpose of protecting employees’ rights to engage in ‘concerted activities for the purpose of collective bargaining or other mutual aid or protection.’”
The defendants appealed, and in an order dated February 6, 2013, the Supreme Court granted leave to appeal. The Court directed the parties to address “(1) whether, regardless of the public body involved, the National Labor Relations Act (NLRA), 29 USC 151 et seq., or the Labor Management Reporting and Disclosure Act (LMRDA), 29 USC 401 et seq., preempt Michigan’s Whistleblower Protection Act (WPA), MCL 15.361 et seq., if the challenged conduct actually or arguably falls within the jurisdiction of the NLRA or the LMRDA; (2) whether a union employee’s report to a public body of suspected illegal activity or participation in an investigation thereof is of only peripheral concern to the NLRA or the LMRDA so that the employee’s claims under the WPA are not preempted by federal law; and, (3) whether the state’s interest in enforcing the WPA is so deeply rooted that, in the absence of compelling congressional direction, courts cannot infer that Congress has deprived the state of the power to act.”