PACKOWSKI v. UNITED FOOD AND COMMERCIAL WORKERS LOCAL 951 (2010)

Plaintiff, Mark Packowski, appeals by right the circuit court's order granting summary disposition for defendant, United Food and Commercial Workers Local 951 (defendant, or the union), under MCR 2.116(C)(4), and an order denying plaintiff's motion for reconsideration. Because we agree with the circuit court that federal preemption applies to plaintiff's remaining claim, we affirm.

I

Defendant employed plaintiff as a business agent, and later, as an organizer. In his complaint, plaintiff alleged that he was demoted from business agent to organizer in 1999 after he assisted in a federal Department of Labor investigation of defendant's election activities. Plaintiff further alleged that he was treated differently and excluded from staff events, such as training, because he refused to contribute to defendant's legal defense fund. Plaintiff alleged that, for these reasons, defendant subsequently terminated him against public policy. In an amended complaint, plaintiff also alleged that his termination violated defendant's just-cause policy, prohibiting employees from being discharged except for just cause. The sole issue before us on appeal is plaintiff's claim that he was terminated without just cause.

Plaintiff's complaint alleged that he had worked for defendant since in 1995, and he took a medical leave from work from September 10, 2001, to September 14, 2001. However, plaintiff alleged that he returned to work for a half-day on September 14, but then a flare-up of his health condition forced him to leave work.

Defendant asserted below that it discharged plaintiff on September 27, 2001, for being absent from work without authorization. Defendant also has asserted that it terminated plaintiff for falsifying records, including his daily itinerary and mileage records for September 14, 2001. Defendant admitted that it has an employment policy that employees, including plaintiff, can only be terminated for just cause, but defendant denied that its termination of plaintiff violated that policy.

Defendant has employment policies and standards that govern automobile use and business mileage reporting. The policies prohibit reimbursement for personal miles, and require a monthly report specifying business and personal miles. The policies require accurate record keeping ensuring that defendant complies with the law. Department staff who have organizing duties, such as plaintiff, are also required to contact defendant by 9:00 a.m. every day to report their itineraries to the supervisor, and to promptly contact the supervisor if any changes in itinerary occur.

Defendant argued below that on or about September 9, 2001, plaintiff informed defendant by a voicemail message of a flare-up in his health condition, but he did not communicate with defendant again regarding his condition or his resulting inability to work, until September 14, 2001, when he faxed a note from his doctor indicating that he would be absent from September 10 to September 14. Defendant asserted that plaintiff reported that he was going to work the second shift at the Wal-Mart store in St. John's, Michigan, on September 14. Defendant later determined that plaintiff did not work the full shift, because he left to referee a football game, and that plaintiff failed to report a change in his itinerary. Defendant also asserted that plaintiff claimed that he intended to stop at the Wal-Mart stores in Alma and Mt. Pleasant after the game, but that he did not inform defendant of this change in his itinerary, and regardless, defendant contends that plaintiff went home after the game rather than to work as he stated he would. Defendant further maintained that plaintiff falsified his mileage report for September 14, by overstating his business miles.

II

After plaintiff filed this action, defendant filed several motions for summary disposition. This appeal involves defendant's summary disposition motion regarding plaintiff's cause of action involving wrongful termination in violation of defendant's just-cause policy. Defendant contended below that this claim was preempted by the Labor Management Reporting and Disclosure Act of 1959, 29 USC 401, et seq. (LMRDA). Defendant argued that, under Finnegan v. Leu, 456 U.S. 431; 102 S Ct 1867; 72 L.Ed.2d 239 (1982), the primary purpose of the LMRDA is to ensure union democracy. Thus, a union president, elected by the rank-and-file members, may terminate policymaking or policy implementing employees without violating the LMRDA, because the LMRDA does not restrict an elected union official's freedom to choose staff whose views reflect his or her own (which would be the views based on which, he or she was elected). Further, defendant argued that courts from other jurisdictions have interpreted the purpose of the LMRDA, as interpreted in Finnegan, to preempt state-law wrongful discharge claims by policymaking or policy implementing employees, because such claims would interfere with the elected union leader's ability to implement the policy upon which the union members elected the leader.

Defendant also argued that plaintiff claimed that he was terminated because he cooperated with the Department of Labor's investigation of defendant's election activities, and that this contention directly implicated the LMRDA's regulatory scheme, because 29 USC 521(a)¹ addresses this specific conduct, and authorizes an investigation, and 29 USC 412² provides for a civil action in federal court if there is retaliation based on giving truthful testimony to the Department of Labor. Thus, defendant argued, plaintiff's exclusive remedy was to file a retaliation claim under the LMRDA in federal court, and his state law claim interferes with and is preempted by federal law. In response, plaintiff argued that his claim was not preempted by the LMRDA; that the LMRDA did not prohibit defendant from adopting a policy prohibiting termination without just cause, and that he was not a management-level employee to which the LMRDA and interpreting case law would apply.

The circuit court granted defendant's motion. The circuit court concluded that plaintiff was a policy-implementing employee of defendant, and that, as such, his state-law wrongful termination claim based on the just-cause policy was preempted by the LMRDA because it would interfere with the union president's authority to choose his own staff, and would thereby jeopardize union democracy. The circuit court denied plaintiff's subsequent request for reconsideration, determining that plaintiff merely reiterated the same arguments addressed in the summary disposition motion, and clarifying that summary disposition of plaintiff's claim was granted under substantive preemption, not jurisdictional preemption.

III

Plaintiff argues on appeal that the circuit court erred in granting defendant's motion for summary disposition, and in holding that his claim of termination in violation of defendant's just-cause-for-termination policy is not preempted by the LMRDA. We disagree.

A

We review summary dispositions de novo. Willett v. Waterford Charter Twp., 271 Mich.App 38, 45; 718 NW2d 386 (2006). Issues of law, such as federal preemption of state law, are reviewed de novo. City of Detroit v. Ambassador Bridge Co., 481 Mich. 29, 35; 748 NW2d 221 (2008). Whether a court has subject-matter jurisdiction is an issue of law, reviewed de novo. Fisher v. Belcher, 269 Mich.App 247, 252-253; 713 NW2d 6, 10 (2005). We review the circuit court's denial of plaintiff's motion for reconsideration for an abuse of discretion. Churchman v. Rickerson, 240 Mich.App 223, 233; 611 NW2d 333 (2000).

Defendant moved for summary disposition under MCR 2.116(C)(4), (8) and (10). The circuit court decided the motion under subrule (C)(4). Summary disposition is appropriate when the trial court “lacks jurisdiction of the subject matter.” MCR 2.116(C)(4). For jurisdictional questions under MCR 2.116(C)(4), this Court “determine[s] whether the affidavits, together with the pleadings, depositions, admissions, and documentary evidence, demonstrate ․ [a lack of] subject matter jurisdiction.” L & L Wine & Liquor Corp v. Liquor Control Comm'n, 274 Mich.App 354, 356; 733 NW2d 107 (2007) (citation omitted).

B

The supremacy clause of the United States constitution gives Congress the authority to preempt state laws. City of Detroit, 481 Mich. at 35-36. The supremacy clause of the United States constitution provides:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. [US Const, art VI, cl 2 (emphasis added).]

Under the supremacy clause, then, this Court is bound by federal statutes, despite any state law to the contrary. In other words, this Court is bound to find preemption where it exists, because federal law is the supreme law of the land. See City of Detroit, 481 Mich. at 36.

Whether a federal statute preempts a state-law claim is a question of federal law. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 214; 105 S Ct 1904; 85 L.Ed.2d 206 (1985). Where such questions of federal law are involved, courts are bound to follow the prevailing opinions of the United States Supreme Court. Betty v. Brooks & Perkins, 446 Mich. 270, 276; 521 NW2d 518 (1994). Where a state-law proceeding is preempted by federal law, the state court lacks subject matter jurisdiction to hear the state law cause of action. Ryan v. Brunswick Corp., 454 Mich. 20, 28; 557 NW2d 541 (1997), abrogated in part on other grounds by Sprietsma v. Mercury Marine, 537 U.S. 51; 123 S Ct 518; 154 L.Ed.2d 466 (2002).

Preemption occurs when a state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. City of Detroit, 481 Mich. at 36. Preemption can also occur where a state or local regulation prevents a private entity from performing a function that Congress has tasked it with performing. Id.

There are three types of federal preemption: express preemption, conflict preemption, and field preemption. X v. Peterson, 240 Mich.App 287, 289; 611 NW2d 566 (2000). Express preemption occurs when the federal statute clearly states an intent to preempt state law, or such intent is implied in the federal law's purpose or structure. Ryan, 454 Mich. at 28. Under conflict preemption, a federal law preempts state law to the extent that the state law directly conflicts with federal law, or with the purposes and objectives of Congress. Id. at 28, citing Cipollene v. Liggett Group, Inc., 505 U.S. 504, 516; 112 S Ct 2608; 120 L.Ed.2d 407 (1992). Under field preemption, the federal statute acts to preempt state law where federal law so thoroughly occupies a legislative field, that it is reasonable to infer that Congress did not intend for states to supplement it. Id.

A few of our sister states have considered analogous situations, and analogous state-law claims, and have found that the LMRDA conflict-preempted those claims. While we are not bound by those decisions, we may follow them if we find them persuasive. Mettler Walloon, LLC v. Melrose Twp., 281 Mich.App 184, 221 n 6; 761 NW2d 293 (2008).

One closely analogous case is Screen Extras Guild, Inc. v. Superior Court, 800 P 2d 873, 876-879 (Cal, 1990), in which it was held that California common-law, which implied a covenant of good faith and fair dealing into some employment relationships, conflicted with the LMRDA and was preempted. The plaintiff in Screen Extras was employed by the union as a business agent, and was discharged for alleged dishonesty and insubordination. The plaintiff sued for wrongful discharge, among other claims, and alleged that the union breached a state-law covenant of good faith and fair dealing. Id. at 879. Analyzing whether the plaintiff's state law cause of action conflicted with the LMRDA's policy, the court relied on Finnegan in holding that in order to ensure union democracy, “Congress must have intended that elected union officials would retain unrestricted freedom to select business agents, or, conversely, to discharge business agents with whom they felt unable to work or who were not in accord with their policies.” Id. at 876-877 (emphasis added).

The plaintiff in Screen Extras argued that her claims for wrongful discharge in breach of contract, negligent and intentional infliction of emotional distress and defamation were not preempted, because she was terminated, not because of a policy disagreement with the union's elected officials, but because of her alleged incompetence and dishonesty. Screen Extras, 800 P 2d at 879. The court found this distinction between a termination for policy reasons and a “garden-variety” termination not implicating policy unpersuasive, because it was unworkable in the real world, and involved highly subjective determinations. Id. “If a business agent, for example, were discharged for failing to efficiently adopt a new set of procedures for prioritizing routine tasks which had been endorsed by elected officials, should that be characterized as a termination to facilitate policy, or as a ‘garden-variety’ termination for inefficiency? ” Id. (emphasis added). The court in Screen Extras noted it would be impossible to develop an objective test to distinguish the two, and “every wrongful discharge claim brought against a union by a business agent will be cast in ‘garden-variety’ terms if that is all it takes to survive preemption.” Id. (emphasis added). Relying on Finnegan, the court held that the plaintiff's claim was preempted because it conflicted with the LMRDA:

To allow a state claim for wrongful discharge to proceed from the termination of a union business agent by elected union officials would interfere with the ability of such officials to implement the will of the union members they represent. This would frustrate full realization of the goal of union democracy embodied by the LMRDA, in contravention of the supremacy clause. Consequently, the LMRDA and the supremacy clause preempt wrongful discharge claims brought against labor unions or their officials by former policymaking or confidential employees. [Id. at 881 (citations omitted).]

See also Tyra v. Kearney, 153 Cal App 3d 921, 923, 926; 200 Cal Rptr 716 (1984) (relying on Finnegan, 456 U.S. at 441, to hold that the plaintiff's claim for wrongful discharge, following termination from her position as a business agent for union after running against the winning candidate, was preempted by the LMRDA's purpose of ensuring democratically governed unions and union official's concomitant authority to select business agents).

Also analogous is Vitullo v. Int'l Brotherhood of Electrical Workers, Local 206, 317 Mont 142; 75 P3d 1250 (2003), in which the plaintiff was a former assistant business manager for a union local. A newly elected official fired the plaintiff after the plaintiff accepted a nomination to run against the official. The plaintiff brought a claim under Montana's wrongful discharge from employment act, which created a just-cause for termination requirement and a probationary period. The court held that the statutory claim conflicted with the LMRDA and Finnegan, and was therefore conflict-preempted. See also Smith v. Int'l Brotherhood of Electrical Workers, Local Union 11, 109 Cal App 4th 1637, 1648; 1 Cal Rptr 3d 374 (Cal App, 2003) (the plaintiff, a union organizer employee, was discharged and brought a breach of contract claim, among other claims, against the union; the court held that he was a policymaking employee and his claim was preempted by the LMRDA).

In another case finding preemption, Dzwonar v. McDevitt, 791 A.2d 1020, 1022 (NJ, 2002), the plaintiff was discharged from her position as a union arbitration officer for inappropriate behavior at an arbitration proceeding and for involvement in disputes with other union members. The plaintiff brought an action under New Jersey's conscientious employee protection act, arguing that she was fired in retaliation for objecting to a union official's acts that allegedly violated the LMRDA. Id. at 1022-1023. Although the LMRDA contained no express provision that limited a state's right to protect union employees from retaliation in plaintiff's circumstances, the court held that “such a limitation may be inferred from” the LMRDA's scope. Id. at 1024. Although the court adopted a preemption exception for claims based on an employee's unwillingness to aid in the violation of a criminal statute, Bloom v. Gen. Truck Drivers, Office, Food & Warehouse Union, Local 952, 783 F.2d 1356, 1357-1360 (CA 9, 1986) (discussed further infra ), the court held that the plaintiff's claim was preempted because it was not based on an allegation that the union official's acts were criminal. Id. at 1026. “Rather, this case involves, at most, the federal regulatory scheme and the union's own internal operating policies.” Id.

We conclude that the reasoning in Screen Extras, Tyra, Vitullo, Smith and Dzwonar is persuasive, and we adopt the reasoning and apply it here. Conflict preemption applies to preclude plaintiff's state law action. The democratic purposes of the LMRDA would be contravened by allowing a demoted or discharged business agent or organizer to sue for wrongful discharge.

We decline to follow Young v. International Brotherhood of Locomotive Engineers, 683 N.E.2d 420, 421-422 (Ohio App, 1996), a case in which the court concluded that preemption was not applicable. The plaintiff in Young was fired from her position as a union employee for allegedly being insubordinate, uncooperative, and making derogatory remarks about the union president. Denying these allegations, the plaintiff brought a breach of contract action, based on her alleged ten-year contract with the union. Id. at 422-423. The trial court granted summary judgment, and the court of appeals reversed and remand for trial, which resulted in a judgment for the plaintiff and an appeal by the union. In the second appeal, the court held that whether the plaintiff's claim was preempted by the LMRDA depended on whether the plaintiff was a policymaking employee, which was an issue of fact for the jury to resolve. Id.

Unlike the parties in Young, plaintiff and defendant do not dispute the circuit court's finding that he was a policy-implementing employee. Therefore, Young is distinguishable from the instant case. We also find Young unpersuasive in that it concludes the question of preemption is a jury question, despite that fact that whether state law conflicts with federal law is more properly characterized as a question of law. City of Detroit, 481 Mich. at 35.

Other cases finding no conflict preemption are also more easily distinguished from the instant case than those cases finding preemption. In Bloom, 783 F.2d at 1357-1360, the plaintiff was a union business manager who sued the union for, among other claims, wrongful discharge, after he was terminated because he refused to falsify the union's minutes to cover up an unapproved expenditure. The plaintiff argued that his claim was not preempted because he was an at-will employee, and because there was no federal statute directly covering his employment. Id. The court held that the state had a strong interest in preventing criminal actions such as embezzlement, and that the LMRDA supported the plaintiff's position, because it expressly “saves both state criminal actions and state-imposed responsibilities of union officers” in 29 USC 523(a) and 29 USC 524. Id. at 1361. The court stated that there was an exception to preemption “to the extent a claim is based on an employee's unwillingness to aid his superior in the violation or concealment of a violation of a criminal statute.” Id. at 1356 (emphasis added). The court further determined that, because the plaintiff alleged that he was fired for refusing to illegally alter minutes, and not for political reasons, the federal interest in union democracy recognized in Finnegan was not implicated, and the state cause of action would not interfere with that statutory purpose. Id. at 1362.

Similarly, in Montoya v. Local Union III of the Int'l Brotherhood of Electrical Workers, 755 P.2d 1221, 1224 (Colo App, 1988), the plaintiff claimed that he was discharged from his position as a union business manager for uncovering illegal union practices and refusing to vote for the candidate that the business manager favored. Because the court found that the business manager could hire and fire his representatives and assistants at any time and discharge would not affect the plaintiff's union membership, the plaintiff's wrongful discharge claims generally conflicted with LMRDA and were preempted. Id. at 1223. However, the court held that the doctrine of preemption did not bar the plaintiff's wrongful discharge claim “insofar as he allege[d] that he was discharged because he refused to aid [the business manager] in his alleged criminal misuse of union funds.” Id. at 1224.

Whereas Bloom and Montoya involved discharges for the plaintiffs' alleged refusal to commit or aid in committing a crime, here, plaintiff was terminated for failing to abide by legitimate policies, such as itinerary and mileage recording, designed to comply with law.³

Finally, we consider the decision in Ardingo v. Local 951, United Food & Commercial Workers Union, unpublished opinion of the Sixth Circuit Court of Appeals, issued May 29, 2009 (Docket No. 08-1078). In Ardingo, the United States Court of Appeals held that the LMRDA did not preempt a wrongful termination claim almost identical to the claim at issue here. For the reasons stated below, we do not follow Ardingo.⁴

The plaintiff in Ardingo was a business agent for the same union which employed the plaintiff in this case. The same policy requiring that employees be terminated only for just cause was in force. Ardingo, unpub op at p 2. After rumors circulated that Ardingo might mount a campaign against the union's president, the union president insinuated that Ardingo was a “pipeline to the Department of Labor.” Id. Thereafter, Ardingo cooperated with a Department of Labor investigation concerning financial irregularities in the union, and then testified before a grand jury concerning the same issues. Id. at 2-3. Ardingo was then reassigned, in rapid succession, to jobs in other states, allegedly for organizing. Id. at 3. But the union was also experiencing substantial declines in revenue. Id. Later, Ardingo, who earned $100,000 per year and had less seniority than other similarly situated employees, was one of ten employees who were discharged. Id. The union president testified that the discharge of Ardingo was for economic and other reasons. Ardingo argued that the economic reasons were not the real reason for his discharge, but a mere pretext, and that his discharge was retaliatory, and in violation of the just-cause policy. Id. at 3-4.

The United States Court of Appeals held that the LMRDA did not preempt Ardingo's state-law claim of discharge in violation of the just-cause policy. Ardingo, unpub op at 5-10. The court reasoned that “[t]he fact that the LMRDA does not provide a cause of action to union employees who have been fired for political reasons does not mean that state law could never restrict a union leader's discretion to terminate a union employee.” Id. at 10, citing Bloom. The court further reasoned that “[s]uch a question was not even before the Finnegan Court. Therefore, it would be wrong to say that Finnegan stands for the proposition that the LMRDA gives union officials unlimited discretion in employment matters.” Id. at 11.

We disagree with Ardingo's reasoning, and decline to follow it. While Finnegan does not absolutely decide the question of whether this exact claim is preempted by the LMRDA, Finnegan is clear that at least one of the purposes of the LMRDA was to promote union democracy and ensure that the representatives whom union members elect are able to carry out the policies on which they were elected. See Finnegan, 456 U.S. at 442 (“in enacting Title I of the Act, Congress simply was not concerned with perpetuating appointed union employees in office at the expense of an elected president's freedom to choose his own staff. Rather, its concerns were with promoting union democracy ․”). Preemption applies when a state-law claim conflicts with the purposes of federal law. City of Detroit, 481 Mich. at 36. We believe that, here, plaintiff's claim would conflict with the efforts of union elected officials to implement the policies on which they were elected, and, in that way, interfere with one of the purposes of the LMRDA.

IV

In sum, the cases finding preemption under similar circumstances are more numerous, more analogous on their facts, and more persuasive than the cases finding no preemption by the LMRDA of similar wrongful discharge claims. The cases finding preemption of state common-law claims by the LMRDA illustrate that wrongful discharge claims by discharged or demoted union employees, who were in policymaking or policy-implementing positions, would counteract one of the purposes and goals of the LMRDA, namely, the purpose and goal of protecting democratic processes in union leadership. If union members cannot choose their leaders, or if the chosen leaders cannot then implement the policies they were elected to implement, then the rights of union members (as represented by their elected leaders) would be thwarted, or at least diminished. Accordingly, the circuit court correctly held that the LMRDA preempts plaintiff's claim of wrongful discharge in violation of the union's just cause policy and, because of federal preemption, the circuit court correctly held that it lacked subject matter jurisdiction to hear that claim. Ryan, 454 Mich. at 28.⁵

Affirmed. Defendant, being the prevailing party, may tax costs pursuant to MCR 7.219.

Plaintiff claims that his employment was terminated in violation of defendant's just cause policy. I write separately because I respectfully disagree with the majority's conclusion that plaintiff's wrongful discharge claim is preempted by the Labor-Management Reporting and Disclosure Act, 29 USC 401 et seq. (LMRDA). I would reverse the trial court's orders granting summary disposition to defendant and denying plaintiff's motion for reconsideration.

The trial court granted defendant summary disposition under MCR 2 .116(C)(4), based on a lack of subject matter jurisdiction. As indicated by the majority, this Court reviews a trial court's decision on a motion for summary disposition de novo, Maiden v. Rozwood, 461 Mich. 109, 118; 597 NW2d 817 (1999), and a motion for reconsideration for an abuse of discretion, Churchman v. Rickerson, 240 Mich.App 223, 233; 611 NW2d 333 (2000). Whether a trial court has subject matter jurisdiction is a question of law, which this Court reviews de novo. Fisher v. Belcher, 269 Mich.App 247, 252-253; 713 NW2d 6 (2005).

“Where the principles of federal preemption apply, state courts are deprived of subject matter jurisdiction.” Ryan v. Brunswick Corp., 454 Mich. 20, 27; 557 NW2d 541 (1997), overruled in part on other grounds Sprietsma v. Mercury Marine, 537 U.S. 51; 123 S Ct 518; 154 L.Ed.2d 466 (2002). In the absence of express preemption, federal preemption may be implied in the form of conflict or field preemption. Id. at 28. Here, the majority concludes that plaintiff's wrongful discharge claim under state law conflicts with the LMRDA and is, therefore, “conflict-preempted.” “Conflict preemption acts to preempt state law to the extent that it is in direct conflict with federal law or with the purposes and objectives of Congress.” Id.

In Finnegan v. Leu, 456 U.S. 431, 441; 102 S Ct 1867; 72 L.Ed.2d 239 (1982), the United States Supreme Court stated that when the LMRDA was enacted, its “overriding objective was to ensure that unions would be democratically governed, and responsive to the will of the union membership as expressed in open, periodic elections.” The Court further stated that “the ability of an elected union president to select his own administrators is an integral part of ensuring a union administration's responsiveness to the mandate of the union election.” Id. According to the majority in this case, allowing plaintiff's state claim for wrongful discharge to proceed would conflict with the LMRDA's purpose of ensuring union democracy and elected union officials' authority to select staff members.

In Ardingo v. Local 951, United Food & Commercial Workers Union, unpublished opinion of the Sixth Circuit Court of Appeals, issued May 29, 2009 (Docket No. 08-1078), however, the court concluded that “[t]here is no danger that [the LMRDA's] objective will be interfered with by a lawsuit that seeks to vindicate an employee's rights under a just-cause employment contract.” Id. at 7. Although this Court is not required to follow decisions of the United States Court of Appeals, Abela v. Gen. Motors Corp., 469 Mich. 603, 606; 677 NW2d 325 (2004), and Ardingo is unpublished, I find the Ardingo court's reasoning persuasive. See id. at 607. Like Ardingo, this case presents a unique set of facts in that plaintiff is suing to enforce his contractual rights under his just cause employment contract with defendant. None of the out-of-state cases relied upon by the majority involve a just cause contract provision. As noted by the Ardingo court, “when a union chooses to offer a just cause employment contract to an employee, there is nothing in Finnegan or the LMRDA that would prevent that contract from being enforced.” Ardingo, unpub op at 10. Finnegan does not stand for the proposition “that state law could never restrict a union leader's discretion to terminate a union employee.” Id., citing Bloom v. Gen Truck Drivers, Office, Food & Warehouse Union, Local 952, 783 F.2d 1356, 1360-1362 (CA 9, 1986) (holding that a wrongful discharge claim was not preempted by the LMRDA where a business agent claimed to have been discharged for refusing to violate state law). While the majority is correct that the LMRDA was enacted to ensure that unions are democratically governed and that elected union officials have the ability to select staff members, and, in that way, respond “to the mandate of the union election,” Finnegan, 456 U.S. at 441, a union, or its democratically elected officials, may choose to offer an employee a just cause employment contract, omit a just cause provision from an employment contract, or tailor such a provision by, for example, defining the term “just cause” in the contract. Thus, enforcing a union's just cause policy does not conflict with the LMRDA's objective of ensuring union democracy. To hold otherwise would permit unions to award employment contracts with just cause provisions that the employees have no ability to enforce, at least in state court, rendering the provisions virtually meaningless.¹ ,²

I would hold that plaintiff's wrongful discharge claim is not preempted by the LMRDA because his claim does not directly conflict with the act or with any of its purposes or objectives, see Ryan, 454 Mich. at 28, and would reverse the trial court's orders granting summary disposition to defendant and denying plaintiff's motion for reconsideration. Whether plaintiff can prevail on his claim of wrongful discharge is still in dispute.

FOOTNOTES

1.  29 USC 521(a) provides:The Secretary shall have power when he believes it necessary in order to determine whether any person has violated or is about to violate any provision of this chapter (except subchapter II of this chapter) to make an investigation and in connection therewith he may enter such places and inspect such records and accounts and question such persons as he may deem necessary to enable him to determine the facts relative thereto. The Secretary may report to interested persons or officials concerning the facts required to be shown in any report required by this chapter and concerning the reasons for failure or refusal to file such a report or any other matter which he deems to be appropriate as a result of such an investigation.

2.  29 USC 412 provides:Any person whose rights secured by the provisions of this subchapter have been infringed by any violation of this subchapter may bring a civil action in a district court of the United States for such relief (including injunctions) as may be appropriate. Any such action against a labor organization shall be brought in the district court of the United States for the district where the alleged violation occurred, or where the principal office of such labor organization is located.

3.  We note that, to the extent that plaintiff has a claim of being demoted or fired in retaliation for participating in a Department of Labor investigation, he has an action for such a claim in federal court. 29 USC 412 provides for a civil action in federal court if there is retaliation based on giving truthful testimony to the Department of Labor.

4.  Although Ardingo does address a question of federal law, i.e. federal preemption, we are not required to follow decisions of the United States Court of Appeals. Abela, 469 Mich. at 606. In addition, Ardingo is unpublished, and was not recommended for full-text publication. Ardingo, unpub op at 1.

5.  Because the circuit court correctly granted summary disposition, its denial of plaintiff's motion for reconsideration was not an abuse of discretion.

1.  In footnote three of its opinion, the majority states that plaintiff may bring a civil action in federal court under 29 USC 412 if he was discharged in retaliation for participating in a Department of Labor investigation. I note, however, that in general, the LMRDA protects the rights afforded union members due to their status as members, not the rights afforded appointed union employees due to their status as employees. See generally Finnegan, 456 U.S. at 431.

2.  Defendant claims on appeal that the just cause provision of plaintiff's employment contract could only be enforced through arbitration. I will not address this claim, as it is irrelevant to the question of preemption.

WILDER, J.