In Clark v. Eagle Ottawa, LLC, No. 06-CV-2028-LRR, 2007 U.S. Dist. LEXIS 12061 (N.D.Iowa Feb. 20, 2007), the employer sought dismissal of plaintiff's FMLA claims on the grounds that they were pre-empted by the National Labor Relations Act (NLRA). There, Plaintiff alleged that the employer discriminated against him in the terms and conditions of employment due to his union membership and status as chief union steward. Clark alleged that he was subjected to disparate treatment because of his status as chief steward in that he was required to provide medical recertification for his approved intermittent FMLA leave for migraines more frequently than other similarly situated employees. Plaintiff was subsequently terminated the day after he informed management that he had contacted the U.S. Department of Labor regarding delays in his return to work from FMLA leave.
The Employer argued that the Clark's FMLA claims were preempted because they involve an unfair labor practice prohibited under Section 8(a)(3) of the NLRA, 29 USC 158(a). Section 8(a)(3) makes it unlawful for an employer to discriminate in regard to hire or tenure of employment to encourage or discourage membership in any labor organization. Pursuant to the decision of the U.S. Supreme Court in San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959), the NLRA pre-empts state and federal court jurisdiction to remedy conduct that is arguably protected or prohibited by the NLRA. The Court denied the Employer's motion to dismiss the FMLA claims under the Garmon preemption doctrine.
The Court noted that the so-called Garmon preemption doctrine arguably does not apply where, as here, the potential conflict is between two federal statutes (the NLRA and the FMLA) and not between a federal law and a state law. The Court declined to rule on whether Garmon preemption was implicated because it found that the FMLA and NLRA were not in conflict. After reviewing the burden of proof schemes for FMLA interference and discrimination claims the Court concluded that the "Plaintiff's FMLA claims are not "inextricably intertwined" with the NLRA" as requried for the doctine to apply. The Court continued:
It is possible to determine whether Defendant violated Plaintiff's right to take intermittent FMLA leave and whether Defendant retaliated against Plaintiff "without reference to substantive labor law." Moreover, this controversy over Plaintiff's requests to take medical leave due to migraines could not have been presented to the NLRB.
The critical inquiry in Garmon preemption cases, the Court observed, is "whether the controversy presented to the court is identical to the one that could have been presented to the NLRB." Here, to determine whether Defendant violated the FMLA it is not, the Court found, necessary to decide whether Defendant's actions violated sections 7 or 8 of the NLRA. Therefore, the Court concluded that that Plaintiff's FMLA claims were not preempted by the NLRA.
Alternatively, the Court went on to find that, even if the NLRA and FMLA were in conflict in the case and Garmon preemption applied, the Court would hold that Plaintiff's FMLA claims fall under the "collateral issue" or "peripheral concern " exception to Garmon. Under Garmon, an exception to the NLRB's primary jurisdiction has been recognized where the conduct at issue is of only "peripheral concern" to federal labor policy. Noting that other federal anti-discrimination laws have been found to fit within the peripheral concern exception to Garmon preemption, the Court concluded that Plaintiff's FMLA claims would fall under the peripheral concern exception to Garmon preemption.
Comment: Had the Garmon preemption doctrine applied Clark would not have been able to sue his employer for violation of the FMLA in a federal or state court. Clark would have been limited to filing an NLRB complaint alleging that his employer engaged in an unfair labor practice. Any vioations of the FMLA would only be examples in support of Clark's unfair labor practice charge.
The NLRA applies to the Postal Service and some other federal employers. Labor management relations in most of the federal government, however, is not governed by the NLRA.