[Cite as Romano Constr., L.L.C. v. B.G.C., L.L.C., 2013-Ohio-681.]


STATE OF OHIO                     )                        IN THE COURT OF APPEALS
                                  )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

ROMANO CONSTRUCTION LLC                                    C.A. No.   26469

        Appellant

        v.                                                 APPEAL FROM JUDGMENT
                                                           ENTERED IN THE
B.G.C., LLC                                                COURT OF COMMON PLEAS
                                                           COUNTY OF SUMMIT, OHIO
        Defendant                                          CASE No.   CV 2012-01-0339

        and

LOCAL UNION #80

        Appellee

                                 DECISION AND JOURNAL ENTRY

Dated: February 27, 2013



        WHITMORE, Judge.

        {¶1}     Plaintiff-Appellant, Romano Construction, LLC (“Romano Construction”),

appeals from the judgment of the Summit County Court of Common Pleas, dismissing its

complaint against Defendant-Appellee, Local Union No. 80 (“Local 80”), for lack of subject

matter jurisdiction. This Court affirms.

                                                      I

        {¶2}     B.G.C., LLC hired Romano Construction to perform certain plaster work at a

facility on Richmond Road. Before Romano Construction could begin work on the contract,

B.G.C., LLC informed it that its services would not be necessary. Specifically, B.G.C., LLC
                                                  2


indicated that the local union had formed a picket line at the project site that “some tradesmen

[would] not cross,” so it intended to hire a union company to perform the plaster work.

          {¶3}   Romano Construction brought suit against Local 80 for intentional interference

with a business relationship, claiming that Local 80 caused B.G.C., LLC to breach its contract

with Romano Construction. Local 80 filed a motion to dismiss, arguing that the trial court

lacked jurisdiction over Romano Construction’s claim because it was preempted by the National

Labor Relations Act (“NLRA”). The trial court ultimately agreed that the claim was preempted

and dismissed it for lack of subject matter jurisdiction.

          {¶4}   Romano Construction now appeals and raises one assignment of error for our

review.

                                                  II

                                        Assignment of Error

          WHETHER THE TRIAL COURT COMMITTED ERROR BY DISMISSING
          THE COMPLAINT AGAINST LOCAL UNION 80 FOR LACK OF SUBJECT
          MATTER JURISDICTION.

          {¶5}   In its sole assignment of error, Romano Construction argues that the trial court

erred by dismissing its claim against Local 80 for intentional interference with a business

relationship. Specifically, it argues that its claim is not preempted by the NLRA.

          {¶6}   A defendant may seek the dismissal of any claim for lack of subject matter

jurisdiction under Civ.R. 12(B)(1).      “[I]n making a determination regarding subject matter

jurisdiction, ‘[t]he trial court is not confined to the allegations of the complaint,’ and ‘[] may

consider material pertinent to such inquiry without converting the motion into one for summary

judgment.’” Bollenbacher v. Wayne Cty. Bd. of Commrs., 9th Dist. No. 11CA0062, 2012-Ohio-

4198, ¶ 6, quoting Southgate Development Corp. v. Columbia Gas Transmission Corp., 48 Ohio
                                                 3


St.2d 211 (1976), paragraph one of the syllabus. Dismissal is inappropriate if “any cause of

action cognizable by the forum has been raised in the complaint.” State ex rel. Bush v. Spurlock,

42 Ohio St.3d 77, 80 (1989). “An appellate court’s review of a motion to dismiss predicated on

Civ.R. 12(B)(1) is de novo, and therefore it must review the issues independently of the trial

court’s decision.” DMC, Inc. v. SBC Ameritech, 9th Dist. No. 22926, 2006-Ohio-2970, ¶ 7.

       {¶7}    The NLRA “contains no express preemption provision,” but nevertheless

preempts state law claims if those claims would conflict with the federal law, frustrate the federal

scheme, or encroach upon a field Congress sought to exclusively occupy. J.A. Croson Co. v. J.A.

Guy, Inc., 81 Ohio St.3d 346, 350 (1998). Two distinct preemption doctrines exist. Id. at 351.

Under the Garmon doctrine, “[w]hen it is clear or may fairly be assumed that the activities which

a State purports to regulate are protected by [Section 157] of the [NLRA], or constitute an unfair

labor practice under [Section 158], due regard for the federal enactment requires that state

jurisdiction must yield.” San Diego Bldg. Trades Council, Millmen’s Union, Local 2020 v.

Garmon, 359 U.S. 236, 244 (1959). If the National Labor Relations Board has decided that

conduct is either protected or prohibited by the NLRA, “the matter is at an end and states are

ousted of all jurisdiction.” J.A. Croson Co. at 352. If the Board has not yet decided the issue,

but the alleged conduct arguably falls within the NLRA’s provisions, “courts generally must

refrain from adjudicating the issue.” Id. Accord Ohio State Bldg. & Constr. Trades Council v.

Cuyahoga Cty. Bd. of Commrs., 98 Ohio St.3d 214, 2002-Ohio-7213, ¶ 54, quoting Wisconsin

Dept. of Industry, Labor & Human Relations v. Gould, Inc., 475 U.S. 282, 286 (1986) (“States

may not * * * ‘regulate activity that the NLRA protects, prohibits, or arguably protects or

prohibits.’”). An exception to the Garmon doctrine lies when unprotected conduct “was a

merely peripheral concern of the [NLRA] [or] touched interests so deeply rooted in local feeling
                                                   4


and responsibility that, in the absence of compelling congressional direction, [courts] could not

infer that Congress had deprived States of all power to act.” Id. at 355, quoting Garmon at 243-

244. Yet, the exception is “inapplicable where state regulation would restrain or inhibit activity

that is actually protected by Section [157] of the NLRA.” J.A. Croson Co. at 356.

       {¶8}    Under the Machinists doctrine, states may not regulate “areas that have been left

‘to be controlled by the free play of economic forces.’” J.A. Croson Co. at 351, quoting Lodge

76, Internatl. Ass’n of Machinists and Aerospace Workers, AFL-CIO v. Wisconsin Employment

Relations Comm’n, 427 U.S. 132, 140 (1976). “This analysis reflects the [NLRA’s] broader

purpose of restoring an equality of bargaining power between labor and management and is

invoked primarily in cases involving the use of certain self-help economic weapons to which the

parties occasionally resort in an effort to advance their respective bargaining goals.” Ohio State

Bldg. & Constr. Trades Council at ¶ 56. The Machinists doctrine “does not pertain to conduct

that is either arguably or clearly protected or prohibited under * * * the NLRA. Instead, it

involves a range of activity that is not expressly regulated under the NLRA * * *.” J.A. Croson

Co. at 357.

       {¶9}    The trial court determined that it lacked jurisdiction to hear Romano

Construction’s claim for intentionally interfering with a business relationship because picketing,

the alleged conduct upon which the claim was based, is an activity regulated by the NLRA.

Romano Construction argues that the trial court erred by dismissing its complaint because it was

not challenging Local 80’s right to picket. Instead, it argues that it was challenging Local 80’s

purposeful interference with a binding contract.

       {¶10} In its complaint against Local 80, Romano Construction did not allege any

particular conduct on Local 80’s part. It did, however, attach an email to the complaint that it
                                                5


had received from the President of B.G.C., LLC. The email notified Romano Construction of

B.G.C., LLC’s intention to terminate their contract. The email from B.G.C., LLC’s president

provided:

       I will not be able to use you on this project. The union has started [a] picket line
       and some tradesmen will not cross. I have been informed [b]y [J.P.] at the Geis
       companies that I should pay a[n] extra $ 15,000.00 for AC Plastering which is a
       union company. I hope to work with you on future projects.

Local 80 filed its motion to dismiss on the basis of preemption because, it argued, Romano

Construction only sought to sue it for having engaged in picketing, a regulated activity. In

response, Romano Construction filed an amended complaint. The amended complaint indicated

that Romano Construction “had no problem or complaints with the picketing or other standard

union activities by [Local 80] at the job site.” Rather, the problem was that Local 80:

       for the purpose of interfering with [Romano Construction’s] contract with B.G.C.
       LLC, got all tradesmen at the job site * * * to refuse to work unless B.G.C. LLC
       got rid of the contract with [Romano Construction] and a [Local 80] member was
       given the job.

Romano Construction argues on appeal that the plain language of its amended complaint

evidences that it was not challenging any picketing that occurred.

       {¶11} The problem with Romano Construction’s argument is that, while it generally

asserted that Local 80 interfered with its contract, it never specified how Local 80 did so other

than to say that it “got all tradesmen at the job site * * * to refuse to work.” The letter from

B.G.C., LLC that Romano Construction attached to its own complaint plainly indicates that the

reason the tradesmen were not working was that they would not cross the picket line that the

union had formed at the job site. B.G.C., LLC opted to hire another company to perform

Romano Construction’s contract to stop the union from picketing.            Thus, while Romano
                                                6


Construction claims not to challenge the picketing that Local 80 allegedly performed at the job

site, the picketing was in fact the conduct that caused B.G.C., LLC to breach the contract.

       {¶12} “Picketing, depending on the circumstances, is both arguably protected under

section [157] and arguably prohibited under section [158].” Fechko v. Excavating, Inc. v. Ohio

Valley & S. States LECET, 9th Dist. No. 09CA0006-M, 2009-Ohio-5155, ¶ 17.               Under the

Garmon doctrine, a state court generally must refrain from adjudicating a picketing issue unless

an exception to the Garmon doctrine applies. See J.A. Croson Co., 81 Ohio St.3d 352. This

Court has recognized that “[c]laims of tortious interference with business relations do not fall

within the Garmon exception for regulated conduct which is deeply rooted in local feeling and

responsibility.” (Internal quotations omitted.) Fechko at ¶ 18, quoting A & D Supermarkets,

Inc., #2 v. United Food & Commercial Workers, Local Union 880, 732 F.Supp. 770, 779

(N.D.Ohio 1989). Therefore, Romano Construction’s claim is one that the Garmon doctrine

prohibits state courts from hearing. Further, because Romano Construction’s claim pertains to

conduct that is arguably protected or prohibited under the NLRA, the Machinists doctrine does

not apply to it. See J.A. Croson Co. at 357 (Machinists doctrine “does not pertain to conduct that

is either arguably or clearly protected or prohibited under * * * the NLRA”).

       {¶13} Even viewing the pleadings and documentary evidence in a light most favorable

to Romano Construction, we must conclude that its claim challenges conduct that Congress

intended to regulate through the NLRA. See id. at 350. As such, the NLRA preempts the claim,

and the trial court did not err by dismissing Romano Construction’s complaint for lack of subject

matter jurisdiction. Romano Construction’s sole assignment of error is overruled.
                                                 7


                                                III

       {¶14} Romano Construction’s sole assignment of error is overruled. The judgment of

the Summit County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                      BETH WHITMORE
                                                      FOR THE COURT



BELFANCE, P. J.
HENSAL, J.
CONCUR.
                                         8



APPEARANCES:

MICHAEL A. CREVELING, Attorney at Law, for Appellant.

SUSAN L. GRAGEL and ANDREW A. CRAMPTON, Attorneys at Law, for Appellee.
