Sixth Circuit Holds That a Supervisor’s Wrongful Discharge

CLAIM IS PREEMPTED BY THE NATIONAL LABOR RELATIONS ACT

Although supervisors generally are not covered by the National Labor Relations Act (“NLRA”), which protects “employees” from unfair labor practices, there is an exception that exists where a supervisor may bring a claim under the NLRA when he/she is disciplined and/or terminated for refusing to commit an unfair labor practice. The Sixth Circuit Court of Appeals in Lewis v. Whirlpool Corporation recently held that this exception warranted the dismissal of a supervisor’s wrongful termination claim. 

In Lewis, Plaintiff worked for Whirlpool for 30 years, from 1977 until 2007, in its non-union facility in Marion, Ohio.  In 2004, several Whirlpool employees began wearing pro-union shirts and meeting with union representatives.  As a result of this unionizing activity, Plaintiff claimed he was told by the Whirlpool Division Vice President to “build a case” and terminate two of the instigating employees.  Plaintiff also claimed he was told that the company would retaliate against him if he did not follow the Division Vice President’s directive.  Plaintiff refused to terminate the employees.  

In March 2007, Plaintiff was accused of “paying an employee for an entire shift despite the employee not being on the premises.”  Plaintiff was also accused of “badging an employee,” “which refers to when a supervisor clocks in one employee using the time badge of a different employee.”  After an investigation into these incidents, Plaintiff was fired for “badging an employee.”   

Following his termination, Plaintiff filed a charge with the NLRB asserting that he was terminated for his failure “to commit unfair labor practices on behalf of [Whirlpool] during a previous organizational campaign among its production employees.”  In November 2007, Plaintiff received a letter from the NLRB which informed him that his charge was “without merit” and that the NLRB was prepared to dismiss the case if he did not voluntarily withdraw the charge – which he did.

Four months later, Plaintiff filed a lawsuit against Whirlpool claiming that he was terminated “in violation of public policy.”  The company filed a motion to dismiss the case arguing that his claim was pre-empted by the NLRA. The district court agreed and dismissed the lawsuit.  Plaintiff appealed to the Sixth Circuit.

On appeal, Plaintiff argued that as a supervisor he was not subject to the NLRA since he was not an “employee” covered by the act.  The Sixth Circuit disagreed.  In affirming the judgment of the district court, the Sixth Circuit held that that Plaintiff’s wrongful termination claim was preempted by the NLRA because the sole and dispositive inquiry for his claims was whether he was terminated for the failure to commit unfair labor practices, as defined by the NLRA.  The court also held that plaintiff’s alternative argument that the district court’s dismissal of the complaint denied him procedural due process was meritless.

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