                           STATE OF MICHIGAN

                            COURT OF APPEALS



MICHAEL D. WILLIAMS,                                                 UNPUBLISHED
                                                                     May 23, 2017
               Plaintiff-Appellant,

v                                                                    No. 330628
                                                                     St. Clair Circuit Court
STAFFORD TRANSPORT OF MICHIGAN,                                      LC No. 15-000948-CZ
INC., and INTERNATIONAL BROTHERHOOD
OF TEAMSTERS LOCAL 337,

               Defendants-Appellees.


Before: RIORDAN, P.J., and RONAYNE KRAUSE and SWARTZLE, JJ.

PER CURIAM.

        Plaintiff appeals by right the trial court’s grant of summary disposition, pursuant to MCR
2.116(C)(4) (lack of subject matter jurisdiction), in favor of defendants, Stafford Transport of
Michigan, Inc. (defendant Stafford, plaintiff’s former employer), and International Brotherhood
of Teamsters Local 337 (defendant the Union, plaintiff’s union). Plaintiff alleged that he had
been discharged by Stafford for participating in union organizing activities and retaliated against
by the Union for participating in those activities and for refusing to pay his union dues.1 In
response to defendants’ motions to dismiss, plaintiff requested leave to amend his complaint to
add a claim of intentional infliction of emotional distress and “a related public policy tort claim.”
The trial court denied the request as futile. We affirm.

        Specifically, the trial court dismissed plaintiff’s claims for discharge in violation of
public policy and conspiracy to discharge in violation of public policy based on lack of subject
matter jurisdiction for the reason that the National Labor Relations Act (NLRA), 29 USC § 151
et seq., preempted plaintiff’s claims of unfair labor practices. The trial court also held that the
addition of plaintiff’s claims for intentional infliction of emotional distress and a wrongful
discharge public policy tort claim would be futile because they would be time barred. The trial
court stated that if plaintiff attempted to plead a claim for intentional infliction of emotional
distress outside of the labor agreement it would be subject to a six-month statute of limitations in


1
  Plaintiff voluntarily withdrew a third claim that the Union breached its duty of fair
representation for failing to process his grievances.


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accord with the Labor-Management Relations Act (LMRA), 29 USC § 141 et seq. The trial
court also found that if plaintiff brought his proposed wrongful discharge public policy tort
claim, it would be subject to the 90-day statute of limitations applicable to the Whistleblower’s
Protection Act (WPA), MCL 15.361 et seq. We find that the trial court correctly analyzed the
substance of plaintiff’s claims, however artfully he presents them. See Hurtford v Holmes, 3
Mich 460, 463 (1855); Wilcox v Moore, 354 Mich 499, 504; 93 NW2d 288 (1958); Norris v
Lincoln Park Police Officers, 292 Mich App 574, 582; 808 NW2d 578 (2011).

        We review de novo a trial court’s decision on a motion under MCR 2.116(C)(4) to
determine whether the record shows that the trial court lacks subject matter jurisdiction.
Packowski v United Food & Commercial Workers Local 951, 289 Mich App 132, 138-139; 796
NW2d 94 (2010). We review a trial court’s denial of a motion to amend a complaint for an
abuse of discretion. Diem v Sallie Mae Home Loans, Inc, 307 Mich App 204, 215-216; 859
NW2d 238 (2014). Although such motions “are generally granted,” futility is a proper basis for
denial. Id. at 216. “An amendment would be futile if (1) ignoring the substantive merits of the
claim, it is legally insufficient on its face; (2) it merely restates allegations already made; or (3) it
adds a claim over which the court lacks jurisdiction.” PT Today, Inc v Comm’r of the Office of
Fin & Ins Servs, 270 Mich App 110, 143; 715 NW2d 398 (2006) (internal citations omitted).
We review de novo whether a claim is preempted or barred by a statutory limitations period.
Biondo v Biondo, 291 Mich App 720, 724; 809 NW2d 397 (2011); Titan Ins Co v Farmers Ins
Exch, 241 Mich App 258, 260; 615 NW2d 774 (2000).

        The LMRA is an amendment to the NLRA, and the two pieces of legislation do not really
stand alone. See Int’l Longshoremen’s Ass’n AFL-CIO v NLRB, 56 F 3d 205, 207 (DC, 1995).
Generally, conduct prohibited or protected by the LMRA, as amended by the NLRA, is within
the exclusive jurisdiction of the National Labor Relations Board (NLRB); albeit subject to some
exceptions. See Weber v Anheuser-Busch, Inc, 348 US 468, 474-477, 480-481; 75 S Ct 480; 99
L Ed 546 (1955); San Diego Bldg Trades Council, Millmen’s Union, Local 2020 v Garmon, 359
US 236, 243-246; 79 S Ct 773; 3 L Ed 2d 775 (1959); Town & Country Motors, Inc v Local
Union No 328, Int’l Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of
America, 355 Mich 26, 54-56; 94 NW2d 442 (1959); Bescoe v Laborers’ Union No 334, 98
Mich App 389, 395-396; 295 NW2d 892 (1980). A claim is therefore generally preempted under
state law if it involves “‘an activity that is actually or arguably protected or prohibited by the
NLRA.’” Calabrese v Tendercare of Michigan, Inc, 262 Mich App 256, 260; 685 NW2d 313
(2004), quoting Bullock v Automobile Club of Michigan, 432 Mich 472, 492-493; 444 NW2d
113 (1989) (LEVIN, J, concurring; that portion of his opinion was agreed with by the majority, id.
at 478-479). In relevant part, Sections 7 and 8 of the NLRA, 29 USC §§ 157-158, guarantee
employees the right to form unions and engage in collective bargaining, and they prohibit
employers from interfering with that right.

       In plaintiff’s complaint, he asserted that he had been retaliated against by Stafford for
engaging in union organization activities, although by implication he also contended that
Stafford retaliated against him for filing complaints with the NLRB. In other words, plaintiff
contended that he was retaliated against precisely for engaging in conduct protected by the
NLRA. Plaintiff asserted that both defendants conspired against him for, again, participating in
union organization activities, refusing to pay union dues, and impliedly for filing complaints.
Again, this is conduct precisely within the exclusive purview of the NLRA. Review of the

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gravamen of plaintiff’s complaint, leads us to conclude that the trial court correctly determined
that plaintiff’s claims of unfair labor practices fell directly within the purview of the NLRA.
Hence, plaintiff’s state claims are preempted because they arise from “an activity that is actually
or arguably protected or prohibited by the NLRA.” Calabrese, 262 Mich App at 260, quoting
Bullock, 432 Mich at 492-493. The trial court’s dismissal of plaintiff’s complaint pursuant to
MCR 2.116(C)(4) was therefore correct.

        Plaintiff argues that his allegations are subject to the “local interest exception” to
preemption. We disagree. Under that exception, a claim might not be preempted if it “touches
interests deeply rooted in local feeling and responsibility,” but even if so, any such interest must
be balanced against that of the NLRB. Belknap, Inc v Hale, 463 US 491, 498-499; 103 S Ct
3172; 77 L Ed 2d 798 (1983); Bullock, 432 Mich at 493. This interest has been construed
narrowly in favor of the NLRB’s broad jurisdiction. See Int’l Longshoremen’s Ass’n v Davis,
476 US 380, 391-393; 106 S Ct 1904; 90 L Ed 2d 389 (1986); see also Bescoe, 98 Mich App at
395-396. “The critical inquiry is whether the controversy presented to the state court is identical
to or different from that which could have been, but was not, presented to the NLRB.” Sargent v
Browning-Ferris Industries, 167 Mich App 29, 34; 421 NW2d 563 (1988). The balancing
inquiry is only undertaken after determining that such a strong local interest exists. Belknap, 463
US at 498. Here, plaintiff has only asserted that Michigan has a strong interest in the conduct he
alleges. That conduct is either squarely within the NLRB’s jurisdiction or, as we discuss below,
within the ambit of his proposed amendment to his complaint and preempted for other reasons.

        We find that the trial court also properly denied plaintiff’s proposed amendment to his
complaint as being futile. Plaintiff sought to add claims of intentional infliction of emotional
distress and a wrongful discharge public policy tort claim.

        Plaintiff correctly states that the LMRA does not preempt claims under the
Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., even if those claims pertain to
reporting wrongdoing relating to an employer’s labor practices. Henry v Laborers’ Local 1911,
495 Mich 260, 293-295; 848 NW2d 130 (2014). However, the WPA has a 90-day limitations
period, MCL 15.363(1), that plaintiff undisputedly failed to meet. Plaintiff therefore attempts to
characterize his proposed claim as “not a WPA claim, [but] analogous to a WPA claim.” To the
extent plaintiff contends that he was retaliated against because of his threats to report defendants’
alleged conduct to any of several law enforcement entities, those are in fact WPA claims: if
defendants took plaintiff at all seriously, they inevitably must have concluded that he was “about
to report . . . a violation or suspected violation of a law or regulation or rule.” MCL 15.362. To
the extent plaintiff contends that he was retaliated against for “overtly protesting or resisting a
suspected illegal or criminal act” but, apparently, not actually reporting it, all plaintiff manages is
a convoluted and opaque repackaging of the same substance: that he was retaliated against for
exercising rights guaranteed by the NLRA.

        Plaintiff correctly notes that in Michigan, there are three “public policy” exceptions to the
general rule of at-will employment, under which an employer may not terminate an employee for
“exercising a right guaranteed by law, executing a duty required by law, or refraining from
violating the law.” Landin v Healthsource Saginaw, Inc, 305 Mich App 519, 524-526; 854
NW2d 152 (2014), citing Suchodolski v Michigan Consol Gas Co, 412 Mich 692, 695-696; 316
NW2d 710 (1982). It has not been explicitly stated whether plaintiff was expressly considered

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an “at-will employee,” but because there is no dispute that a labor agreement governed the terms
and conditions of his employment, including providing him with a grievance process to resolve
disputes, we suspect not. Nonetheless, presuming those public policy exceptions have broader
applicability, they cannot override explicit legislative pronouncements or Federal preemption.
Plaintiff has provided no evidence that he was terminated for refusing to violate a law or for
carrying out a duty required by law. If he was terminated for exercising a right guaranteed by
law, and the law guaranteeing that right specifies an exclusive remedy, plaintiff may avail
himself of that remedy only. The trial court correctly found this proposed amendment to be
futile.

         Plaintiff’s proposed intentional infliction of emotional distress claim promised to
establish that he complained about his tires being deflated in the company parking lot after his
initial reinstatement at work; he threatened to call the police and a HIPAA enforcement agency;
he went on medical leave and was immediately declared “terminated”; he was a victim of
physical harassment resulting in stress-related symptoms; he was told he “would work here
longer” if he dropped the NLRB charges; and he was the victim of numerous bogus write-ups
and pressures from many of defendant Stafford’s agents. Several of these proposed allegations
are obviously preempted for reasons already discussed: plaintiff’s reporting threats are
preempted by the WPA, and the alleged threat concerning his NLRB charges is within the
NLRB’s exclusive jurisdiction.

        Under Section 301(a) of the Labor Management Relations Act (LMRA), 29 USC § 141 et
seq.,

        Suits for violation of contracts between an employer and a labor organization
        representing employees in an industry affecting commerce . . . may be brought in
        any district court of the United States having jurisdiction of the parties, without
        respect to the amount in controversy or without regard to the citizenship of the
        parties. [29 USC 185(a).]

Although § 301 “does not contain an express preemption clause,” it does impliedly preempt state
claims that are “inextricably intertwined with consideration of the terms of the labor contract and
when application of state law to a dispute requires the interpretation of a collective bargaining
agreement” or even merely “could . . . involve the meaning or scope of a term in a [labor]
contract suit.” Arbuckle v Gen Motors LLC, 499 Mich 521, 533-535; 885 NW2d 232 (2016). A
claim that either “requires interpretation of collective bargaining agreement terms” or involves a
right “created by the collective bargaining agreement” is preempted by § 301. Id.

        Some of the allegations plaintiff proposes might be actionable in other contexts.
However, the context here is critical. The gravamen of plaintiff’s claims, however presented, is
that he was improperly disciplined by Stafford and improperly represented by the Union.
Plaintiff’s claims arise out of the employment relationship, and there was a collective bargaining
agreement governing the terms and conditions of that employment relationship, including
resolving disputes through grievances. Because plaintiff’s accusations were both related to the
collective bargaining agreement and were themselves the basis for the intentional infliction of
emotional distress claim, it would be impossible to resolve the claim without interpreting terms
of the collective bargaining agreement. Therefore, plaintiff’s proposed claim would be

                                                -4-
preempted by § 301 of the LMRA and subject to its six-month statute of limitations. See
DelCostello v Int’l Brotherhood of Teamsters, 462 US 151, 172; 103 S Ct 2281; 76 L Ed 2d 476
(1983); Romero v Paragon Steel Div, 129 Mich App 566; 341 NW2d 546 (1983). Plaintiff
sought to amend his complaint long after the six-month statute of limitations applicable to claims
governed by § 301 would have expired. Therefore, the trial court properly found the proposed
amendment futile because the charge was not actionable. PT Today, Inc, 270 Mich App at 143.

       Affirmed.

                                                            /s/ Michael J. Riordan
                                                            /s/ Amy Ronayne Krause
                                                            /s/ Brock A. Swartzle




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