                                         File Name: 08a0205n.06
                                           Filed: April 17, 2008

                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                              No. 07-3511

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

CHELLIS ACKERS, et al.,

          Plaintiffs-Appellants,

v.                                                          ON APPEAL FROM THE
                                                            UNITED STATES DISTRICT
C E LES TIC A C OR P.              and    LUCENT            COURT FOR THE SOUTHERN
TECHNOLOGIES, INC.,                                         DISTRICT OF OHIO

          Defendants-Appellees.


                                                        /

Before:          MARTIN, GIBBONS, and GRIFFIN, Circuit Judges

          BOYCE F. MARTIN, JR., Circuit Judge. A group of former employees sued Celestica

Corporation and Lucent Technologies alleging fraud under state law. The district court dismissed

the claims as preempted under the National Labor Relations Act. We AFFIRM.

                                                    I

          The following facts are alleged in Ackers’ complaint. Lucent operated a manufacturing

facility in Columbus, Ohio until 2001 when it sold the facility to Celestica. During and prior to the

transition, Lucent stated it planned to “keep the work and jobs in Columbus.” Lucent also offered

early retirement packages prior to the sale to reduce its workforce. Celestica and the union

representing the facility’s remaining employees then negotiated a collective bargaining agreement.
No. 07-3511
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Celestica and Lucent assured the union that Celestica would remain in Columbus for at least five

years and would increase production. In return, the union accepted lower wages and other contract

concessions.

       Once in control of the facility, Celestica had the former Lucent employees train employees

from its other facilities in the specialized manufacturing techniques the former Lucent employees

had mastered.    By June of 2002, Celestica began relocating some of the manufacturing to its

Canadian facilities based on its newly acquired expertise. Celestica then announced it would close

the Columbus facility in October of 2002 and relocate the remaining work to cheaper facilities. It

laid off all the employees and sold the facility back to Lucent.

       A group of employees filed suit in Ohio state court on May 10, 2006 alleging fraud,

fraudulent inducement, and a violation of public policy. Celestica removed the case to federal court

based on diversity and filed a motion for dismissal under Federal Rules of Civil Procedure 12(b)(1)

and 12(b)(6). The district court granted the motion, finding that the employees’ claims were

preempted from its jurisdiction by the National Labor Relations Act because the allegations were

arguably a violation of the Act. The employees then appealed to this Court on April 20, 2007.

                                                 II

       In a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of jurisdiction

on the face of the complaint, this Court reviews the decision of the district court de novo while

accepting the plaintiffs’ allegations as true. See RMI Titanium Co. v. Westinghouse Elec. Corp., 78

F.3d 1125, 1134 (6th Cir. 1996) (quoting Mortensen v. First Federal Sav. and Loan Ass’n, 549 F.2d

884, 890-91 (3d Cir. 1977)).
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       Claims are preempted by the National Labor Relations Act when the activities complained

of are arguably covered by the Act under 29 U.S.C. § 158(d) (§ 8 of the Act). “When an activity is

arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the

exclusive competence of the National Labor Relations Board if the danger of state interference with

national policy is to be averted.” San Diego Bldg. Trades Council, Millmen’s Union, Local 2020

v. Garmon, 359 U.S. 236, 245 (1959). Thus “[w]hen it is clear or may fairly be assumed that the

activities . . . constitute an unfair labor practice under § 8,” preemption applies. Id. at 244.

       In this case, relief from the alleged misconduct underlying the employees’ claims may be

found through § 158 protections. Section 158(d) requires the “employer and the representative of

the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and

other terms and conditions of employment, or the negotiation of an agreement, or any question

arising thereunder.” A unilateral action or bargaining in bad faith concerning a subject of mandatory

bargaining violates 29 U.S.C. § 158(d). See Nat’l Labor Relations Bd. v. Katz, 369 U.S. 736, 743

(1962). Subjects of mandatory bargaining include the terms of a collective bargaining agreement,

see 29 U.S.C. § 158(d), the results or effects of a decision to shut down a facility, see First Nat’l

Maint. Corp. v. Nat’l Labor Relations Bd., 452 U.S. 666, 679 n.15 (1981), and relocation of

bargaining unit work, see Taylor Warehouse Corp. v. Nat’l Labor Relations Bd., 98 F.3d 892, 901

(6th Cir. 1996). Celestica allegedly acted fraudulently by inducing the employees to stay with

promises of continued work while having no intention of keeping the facility open any longer than

necessary to acquire the employees’ specialized knowledge. Celestica allegedly made statements

about its commitment to the Columbus operation both before and after entering into the Collective
No. 07-3511
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Bargaining Agreement, yet transferred the work to other facilities. This conduct would represent a

failure to bargain in good faith regarding each of the above mandatory subjects of bargaining, and

therefore a violation of § 158(d). Because such conduct constitutes an unfair labor practice under

§ 158, the claims based on that conduct must be heard before the National Labor Relations Board,

and not in district court.

        The employees argue on appeal that the district court over-simplified their claims and as a

result erred in granting the motion to dismiss based on preemption. Specifically, the employees

point to the decision to close the plant despite continuing assurances, made after they entered into

the Collective Bargaining Agreement, that the plant would remain open for at least five years. The

employees argue that because the fraud continued after they entered into the Collective Bargaining

Agreement, that continuing fraud would not be actionable under § 158, and is therefore not

preempted. This Court, however, has found such continuing acts of fraud to be preempted in the

past. See Serrano v. Jones & Laughlin Steel Co., 790 F.2d 1279, 1286-87 (6th Cir. 1986) (holding

that fraudulent statements pertaining to the closure of a facility made subsequent to a collective

bargaining agreement implicated a duty to bargain in good faith over the effects of the closure). The

employees argue further that the decision to close a plant is not the subject of mandatory bargaining,

and therefore is not covered by § 158. It is true that the decision to close a plant is not generally the

subject of mandatory bargaining. See Voilas v. Gen. Motors Corp., 170 F.3d 367, 379 (3d Cir.

1999). However, recasting the complaint as one about plant closure does not alter the underlying

conduct, which remains arguably a violation of § 158 for the reasons stated above. See Serrano, 790
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F.2d at 1287. Because the conduct need only be “arguably” a violation of §158 for preemption to

apply, the employees claims are preempted in this case.

                                                 III

       Because their claims are “arguably” covered by the National Labor Relations Act, we

AFFIRM the decision of the district court dismissing the case for lack of subject matter jurisdiction.
