Internal. Union of Operating Engineers, Local 18 v. CNR Trucking Inc. , 2013 Ohio 2094 ( 2013 )

[Cite as Internal. Union of Operating Engineers, Local 18 v. CNR Trucking Inc., 2013-Ohio-2094.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98935
INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL 18
PLAINTIFF-APPELLANT
vs.
CNR TRUCKING INCORPORATED, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-769170
BEFORE: Keough, J., Jones, P.J., and Kilbane, J.
RELEASED AND JOURNALIZED: May 23, 2013
ATTORNEY FOR APPELLANT
Timothy R. Fadel
Wuliger, Fadel & Beyer
1340 Sumner Court
Cleveland, Ohio 44115
ATTORNEYS FOR APPELLEES
For CNR Trucking, Inc.
Cara L. Santosuosso
Laubacher & Company
Westgate Towers, Suite 626
20525 Center Ridge Road
Rocky River, Ohio 44116
For Laborers’ International Union
of North America, Local 310
Andrew A. Crampton
Susan L. Gragel
Goldstein Gragel, L.L.C.
526 Superior Avenue, East
Suite 1040
Cleveland, Ohio 44114
KATHLEEN ANN KEOUGH, J.:
{¶1} Plaintiff-appellant, International Union of Operating Engineers, Local 18
(“Local 18”) appeals from the trial court’s judgment dismissing its complaint against
defendants-appellees CNR Trucking, Inc. (“CNR”) and Laborers’ International Union of
North America, Local 310 (“Local 310”) for lack of subject matter jurisdiction. For the
reasons that follow, we affirm.
I. Facts and Procedural Background
{¶2} On May 16, 2009, CNR agreed to be bound by the terms and provisions of
the collective bargaining agreement between Local 310 and the Construction Employers
Association, effective May 1, 2009 to April 30, 2012.
{¶3} On August 31, 2011, CNR entered into two “addendum agreements” to the
collective bargaining agreement between Local 18 and the Construction Employers
Association, effective May 1, 2009 to April 30, 2012 (“Local 18 CBA”). The addenda
required CNR to “abide by all the terms and conditions contained in the [Local 18 CBA]
as to hours, wages, fringes, and other conditions of employment” and to pay a minimum
number of hours of fringe benefits on behalf of each employee at rates set forth in the
Local 18 CBA. CNR’s execution of the addendum agreements was a condition
precedent to CNR’s participation in and assent to the Local 18 CBA. The next day,
September 1, 2011, CNR agreed to be bound by the terms and provisions of the Local 18
CBA.
{¶4} Local 18 subsequently filed suit against CNR and Local 310. In its
complaint, Local 18 alleged that on September 27, 2011, CNR sent correspondence to
Local 18 that repudiated the CBA and its addenda. Local 18 further alleged that Local
310 intentionally and without justification caused CNR’s repudiation of its agreements
with Local 18. In its complaint, Local 18 set forth claims for breach of contract against
CNR and tortious interference with contract against Local 310. Local 18 sought
compensatory damages from both CNR and Local 310, punitive damages from Local 310,
and specific performance of the agreements from CNR.
{¶5} After answering, both Local 310 and CNR filed Civ.R. 12(C) motions for
judgment on the pleadings, arguing that the court lacked subject matter jurisdiction over
Local 18’s claims because they were preempted by the National Labor Relations Act
(“NLRA”). The trial court denied the motions. Subsequently, upon Local 18’s request,
the originally-assigned judge recused himself, and the matter was reassigned.
{¶6} On August 21, 2012, the newly-assigned judge issued an opinion and
judgment entry dismissing the matter without prejudice for lack of subject matter
jurisdiction. The court determined that Local 18’s claims against Local 310 and CNR
were preempted by federal law; specifically, Section 8(b)(4)(D) of the NLRA.
{¶7} Local 18 now appeals from the trial court’s judgment dismissing its
complaint.1
On November 28, 2012, this court granted Local 18’s motion to dismiss CNR. Accordingly,
1
this appeal concerns only the trial court’s dismissal of Local 18’s claims against Local 310.
II. Analysis
{¶8} In its single assignment of error, Local 18 argues that the trial court erred in
finding that its state-law claims against Local 310 for tortious interference with contract
were preempted by Section 8(b)(4)(D) of the NLRA.
{¶9} Because the issue of whether a trial court has subject matter jurisdiction
involves a question of law, we review a trial court’s judgment dismissing claims for lack
of subject matter jurisdiction de novo. State ex rel. Rothal v. Smith, 151 Ohio App.3d
289, 2002-Ohio-7328, 783 N.E.2d 1001, ¶ 110 (9th Dist.). When reviewing a matter de
novo, we afford no deference to the trial court’s decision. BP Communications Alaska v.
Cent. Collection Agency, 136 Ohio App.3d 807, 812, 373 N.E.2d 1050 (8th Dist.2000).
{¶10} The doctrine of preeemption in labor law was developed to prevent state
court interference with the federal regulatory scheme set forth in the NLRA. Bldrs. Assn.
of E. Ohio & W. Pennsylvania, Inc. v. Commercial Piping Co., Inc., 70 Ohio St.2d 9, 10,
434 N.E.2d 271 (1982). “‘The overriding goal of preemption has been to promote a
uniform application of the NLRA by a centralized administrative agency, thereby
avoiding potential conflict of rules of law, of remedy, and of administration,’
promulgated by different tribunals.” Id., quoting San Diego Bldg. Trades Council v.
Garmon, 359 U.S. 236, 242, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959).
{¶11} The NLRA contains no express preemption provision. Ohio State Bldg. &
Constr. Trades Council v. Cuyahoga Cty. Bd. of Commrs. 98 Ohio St.3d 214,
2002-Ohio-7213, 781 N.E.2d 951, ¶ 46. Further, “Congress has neither exercised its full
authority to occupy the entire field in the area of labor relations nor clearly delineated the
extent to which state regulation must yield to this subordinating federal legislation.” Id. at
¶ 49, citing Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 480-481, 75 S.Ct. 480, 99
L.Ed. 546 (1955).
{¶12} Nevertheless, the United States Supreme Court has recognized two types of
preemption by the NLRA. The first, known as Garmon preemption, forbids state and
local regulation of activities arguably protected under Section 7 of the NLRA or
prohibited as an unfair labor practice under Section 8 of the Act. San Diego Bldg.
Trades Council at 246. Under the second type of preemption, known as Machinists
preemption, regulation will be preempted if Congress intended that the conduct involved
be unregulated and left to the free play of economic forces. Lodge 76, Internatl. Assn. of
Machinists & Aerospace Workers, AFL-CIO v. Wisconsin Emp. Relations Comm., 427
U.S. 132, 96 S.Ct. 2548, 49 L.Ed.2d 396 (1976). Both the Garmon and Machinists
analyses focus on the conduct or activities involved, and not the cause of action alleged,
when determining whether the cause is preempted by the NLRA. Humility of Mary
Health Partners v. Sheet Metal Workers’ Local Union No. 33, 7th Dist. No. 09 MA 91,
2010-Ohio-868, ¶ 17, citing Internatl. Longshoremen’s Assn., AFL-CIO v. Davis, 476
U.S. 380, 106 S.Ct. 1904, 90 L.Ed.2d 389 (1986).
{¶13} In this case, we find that Local 18’s tortious interference claims are
preempted under Garmon because the conduct alleged is arguably subject to Section
8(b)(4)(D) of the NLRA, which governs jurisdictional disputes between unions.
{¶14} Under Section 8(b)(4)(D) of the NLRA, it is an unfair labor practice for a
labor organization to “threaten, coerce, or restrain any person engaged in commerce or in
an industry affecting commerce” where the intent is:
forcing or requiring any employer to assign particular work to employees in
a particular labor organization * * * rather than to employees in another
labor organization * * *.
This language condemns the “prototypical jurisdictional dispute” in which two rival
unions have collective bargaining agreements with one employer, each claims that its
members are entitled to perform a particular task for that employer, and the employer
“seems perfectly willing to assign work to either if the other will just let him alone.”
NLRB v. Radio & Television Broadcast Engineers Union, Local 1212 (Columbia
Broadcasting Serv.), 364 U.S. 573, 579, 81 S.Ct. 330, 5 L.Ed.2d 302 (1961) (“CBS”).
Employers involved in a jurisdictional dispute may file for a jurisdictional hearing with
the NLRB pursuant to Section 10(k) of the Act, and the National Labor Relations Board
is required to determine the merits of the dispute and award the disputed work in
accordance with its decision. Id.{¶15} This case presents such a jurisdictional dispute. Both Local 18 and Local
310 have collective bargaining agreements with CNR, and Local 18 is alleging that Local
310 “wrongfully, intentionally, and without justification” procured CNR’s breach of its
agreement with Local 18. In short, Local 18 is alleging that Local 310 coerced CNR to
repudiate its agreement with Local 18 and assign the disputed work to Local 310’s
members, conduct that is arguably prohibited by Section 8(b)(4)(D).
{¶16} Local 18 contends that this case does not involve a jurisdictional dispute,
however, because such a dispute requires that each union have a contract with the same
employer, and it has no agreement with CNR due to CNR’s repudiation. But a
repudiation of a contract does not rescind a contract; it merely results in the breach of that
contract. Am. Bronze Corp. v. Streamway Prods., 8 Ohio App.3d 223, 228, 456 N.E.2d
1295 (8th Dist.1982); Daniel E. Terreri & Sons, Inc. v. Mahoning Cty. Bd. of Commrs.,
152 Ohio App.3d 95, 2003-Ohio-1227, 786 N.E.2d 921 (7th Dist.). Moreover, there
could be no repudiation by CNR unless it did, in fact, have a contract with Local 18.
{¶17} Local 18 also argues that pursuant to CBS and its progeny, in order for there
to be any jurisdictional dispute within the exclusive purview of Section 8(b)(4)(D), there
must first be a claim to the same work made by two different groups. Local 18 asserts
that it has not made any claim for work “nor does Local 18 seek the assignment of such
work as a form of damages” anywhere “within the four corners of its complaint.” Our
review of Local 18’s complaint, however, demonstrates that it did indeed seek specific
performance from CNR, which can only be interpreted as a demand that CNR assign the
disputed work to Local 18.
{¶18} Local 18 next argues, citing Cleveland ex rel. O’Malley v. White, 148 Ohio
App.3d 565, 2002-Ohio-3633, 774 N.E.2d 337 (8th Dist.), that a state court may not find
lack of subject matter jurisdiction due to federal preemption unless the National Labor
Relations Board has rendered a decision regarding the same subject matter. But
O’Malley does not stand for the proposition argued by Local 18. While the O’Malley
matter was pending on appeal, the NLRB issued a decision regarding an unfair labor
practice charge in a related matter. This court found that although the parties named in the
lawsuit and the unfair labor practice charge were different, the issue raised in the suit and
unfair labor practice charge were the same. Accordingly, this court found that the trial
court’s decision was preempted by the NLRB’s decision. The O’Malley decision did not
suggest, however, that a court cannot make a preemption determination absent a NLRB
finding on the same issue.
{¶19} Finally, at oral argument, Local 18 argued that the trial court improperly
considered material outside the pleadings in deciding Local 310’s motion for judgment on
the pleadings. Specifically, Local 18 argued that its complaint made no mention of
competing collective bargaining agreements such that the trial court’s finding that Local
18’s “claims concern conflicts between two CBA’s involving the same employer” was
necessarily based on information outside the record. However, in ruling on a Civ.R.
12(C) motion, a trial court is permitted to consider both the complaint and answer. State
ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565, 569, 1996-Ohio-459, 664
N.E.2d 931. Paragraph 11 of Local 310’s answer stated that on May 16, 2009, CNR
executed a collective bargaining agreement with Local 310. A copy of CNR’s
participation and assent agreement and the Local 310 collective bargaining agreement
were attached as exhibits to Local 310’s answer. Accordingly, the trial court did not err in
considering these materials from Local 310’s answer.
{¶20} Finding no merit to Local 18’s arguments, we overrule the assignment of
error and affirm the trial court’s judgment dismissing Local 18’s claims against Local 310
for lack of subject matter jurisdiction.
{¶21} Affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
LARRY A. JONES, SR., P.J., and
MARY EILEEN KILBANE, J., CONCUR