MARK W. BENNETT, District Judge.
TABLE OF CONTENTS
I. INTRODUCTION AND BACKGROUND ..............................................911
A. Procedural Background ................................................911
B. Factual Background ...................................................912
II. LEGAL ANALYSIS ..........................................................914
A. Standards For A Motion To Dismiss ....................................914
B. NLRA Preemption ......................................................916
1. Garmon framework ..................................................916
2. Garmon analysis of Hussaini's causes of actions ...................918
a. Discharge in violation of public policy claim ..................918
b. Promissory estoppel claim ......................................921
c. Fraudulent misrepresentation claim .............................922
III. CONCLUSION .............................................................923
Labor relations are the National Labor Relations Board's ("the NLRB") sandbox. This case raises the question of whether plaintiff's Iowa common law claims against her former employer for wrongful discharge in violation of public policy, promissory estoppel, and fraudulent misrepresentation fall within that sandbox and are, therefore, preempted by the National Labor Relations Act, 29 U.S.C. § 151 et seq. ("NLRA").
On August 5, 2010, plaintiff Qudsia Hussaini filed a petition in Iowa District Court for Woodbury County against her former employer, Gelita USA, Inc. ("Gelita"). In her petition, Hussaini alleges the following three causes of action against Gelita: (1) a common law claim of wrongful discharge in violation of Iowa public policy; (2) a common law claim for promissory estoppel; and (3) a common law claim for fraudulent misrepresentation. On August 30, 2010, Gelita removed the case to this court, pursuant to 28 U.S.C. §§ 1332 and 1441, on
On September 14, 2010, Hussaini filed a resistance to Gelita's Motion to Dismiss. In her resistance, Hussaini argues that her state law claims are not preempted by the NLRA because her claims are not identical to the claims presented to the NLRA. She further argues that her claim of wrongful discharge in violation of public policy should not be dismissed for failure to state a cause of action because the Iowa Supreme Court would recognize such a claim where the plaintiff was fired to cover up violations of the NLRA. Finally, Hussaini argues that she is not required to plead that she was an at-will employee in order to state a claim of wrongful discharge in violation of public policy. Gelita did not filed a reply brief, but did file copies of filings in two cases, case no. 18-CA-19458 and case no. 18-CA-19478, currently pending before the National Labor Relations Board ("NLRB").
On October 28, 2010, the court heard telephonic oral arguments on defendant Gelita's Motion to Dismiss. Plaintiff Hussaini was represented by Paul D. Lundberg of Lundberg Law Firm, P.L.C., Sioux City, Iowa. Defendant Gelita was represented by Roger J. Miller and Abigail M. Moland of McGrath North Mullin & Kratz, P.C. L.L.O., Omaha, Nebraska. Before discussing the standards for defendant Gelita's Motion to Dismiss, the court will first examine the factual background of this case.
On a motion to dismiss, the court must assume all facts alleged in Hussaini's petition are true, and must liberally construe those allegations. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Accordingly, the following factual background is drawn from Hussaini's petition in such a manner.
Qudsia Hussaini is a resident of Dakota County, Nebraska. Gelita is a Delaware Corporation authorized to do business in the State of Iowa. It has a facility in Sergeant Bluff, Iowa. Hussaini was employed as a laboratory technician at Gelita's Sergeant Bluff facility for over thirteen years.
In 2008, employees at Gelita's Sergeant Bluff facility were unionized and represented by United Food and Commercial Workers International Union Local # 1142 ("the Union"). Hussaini, however, had voted against certification of the Union as the laboratory employees' collective bargaining representative. In September 2009, Melissa Simon, Gelita's Sales Manager, gave Hussaini an envelope containing information on how to obtain a decertification petition from the District National Labor Relations Board office to decertify the Union as the laboratory employees' collective bargaining representative. After Simon gave Hussaini the decertification information, Simon promised Hussaini that, if she obtained the signatures necessary to hold a decertification election for laboratory employees, Hussaini's job would be protected, she would be protected from
After Hussaini was given the decertification materials by Simon, Gelita's management gave Hussaini assistance in preparing the necessary paperwork and obtaining signatures for the decertification election. Tolsma and Dean Wood, who was in charge of the Q.C. Laboratory, were among those Gelita management employees providing assistance to Hussaini in her decertification efforts. Hussaini was able to obtain the necessary signatures to hold the decertification election despite direct harassment from Union members. As a result of the decertification election, the Union was decertified as the laboratory employees' collective bargaining representative.
On June 11, 2010, Hussaini, and four other laboratory employees were summarily fired by Gelita. The other four employees fired at the same time as Hussaini were active Union supporters who supported the Union in the decertification election. Hussaini and the other four employees were told that they were being fired as part of a downsizing effort by Gelita. Gelita's reason for firing the five employees was a pretext for their firing, because Gelita was actively hiring new laboratory technicians the same week that the five were fired. Gelita fired Hussaini with the four other employees to mask Gelita's intent to discharge the other four for their pro-Union activities.
On June 16, 2010, Hussaini filed a charge of unfair labor practices against Gelita with the NLRB, case no. 18-CA-19458. On June 30, 2010, the Union also filed a charge of unfair labor practices against Gelita with the NLRB, case no. 18-CA-19478. Hussaini and the Union's cases before the NLRB have been consolidated and are currently pending adjudication.
Gelita seeks dismissal of all claims asserted against it for lack of subject matter jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1) and failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6).
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for a motion to dismiss on the basis of "failure to state a claim upon which relief can be granted."
Bell Atlantic, 550 U.S. at 555-56, 127 S.Ct. 1955 (footnote omitted); see Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (instructing that "short and plain statement" requirement "demands more than an unadorned, the-defendant-unlawfully-harmed me accusation."). Thus, the Eighth Circuit Court of Appeals has recognized that, under Bell Atlantic, "To survive a motion to dismiss, a complaint must contain factual allegations sufficient `to raise a right to relief above the speculative level. ...'" Parkhurst v. Tabor, 569 F.3d 861, 865 (8th Cir.2009) (quoting Bell Atlantic, 550 U.S. at 555, 127 S.Ct. 1955). To put it another way, "the complaint must allege `only enough facts to state a claim to relief that is plausible on its face.'" B & B Hardware, Inc. v. Hargis Indus., Inc., 569 F.3d 383, 387 (8th Cir.2009) (quoting Bell Atlantic, 550 U.S. at 570, 127 S.Ct. 1955); accord Iqbal, 129 S.Ct. at 1949 ("Where a complaint pleads facts that are `merely consistent with' a defendant's liability, it `stops short of the line between possibility and plausibility of entitlement to relief.'") (quoting Bell Atlantic, 550 U.S. at 557, 127 S.Ct. 1955).
Nevertheless, the court must still "accept as true the plaintiff's well pleaded allegations." Parkhurst, 569 F.3d at 865 (citing Neitzke v. Williams, 490 U.S. 319, 326-27, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989)); B & B Hardware, Inc., 569 F.3d at 387 ("[W]e `assume[ ] as true all factual allegations of the complaint'" (quoting Levy v. Ohl, 477 F.3d 988, 991 (8th Cir. 2007)). The court must also still "construe the complaint liberally in the light most favorable to the plaintiff." Eckert v. Titan Tire Corp., 514 F.3d 801, 806 (8th Cir. 2008) (post-Bell Atlantic decision). On the other hand, "[w]here the allegations show on the face of the complaint that there is some insuperable bar to relief, dismissal under Rule 12(b)(6) is [still] appropriate." Benton v. Merrill Lynch & Co., Inc., 524 F.3d 866, 870 (8th Cir.2008) (citing Parnes v. Gateway 2000, Inc., 122 F.3d 539, 546 (8th Cir.1997)), for this standard in a discussion of Rule 12(b)(6) standards in light of Bell Atlantic).
Gelita argues that Hussaini's claims are all preempted because they fall within the exclusive jurisdiction of the NLRB. Specifically, Gelita contends that Hussaini's claims are preempted by Sections 7 and 8 of the NLRA.
Over fifty years ago, in Garmon, the United States Supreme Court established one general framework for determining whether particular state-law claims are preempted by the NLRA. See Garmon, 359 U.S. at 243-45, 79 S.Ct. 773. In Garmon, the Court vacated a state court award of tort damages against a labor union that engaged in picketing. Id. at 246, 79 S.Ct. 773. In doing so, the Court announced a rule of preemption for state law based claims that touched on conduct protected or prohibited by the NLRA:
Garmon, 359 U.S. at 244-45, 79 S.Ct. 773.
Thus, a court need not decide whether the alleged conduct would be prohibited by the NLRA to decide whether it is preempted since all that is required under Garmon is that the conduct upon which the state cause of action is based is "arguably" prohibited. See id. at 245, 79 S.Ct. 773. As the Court explained in Garmon, it is for the NLRB, not the courts, to decide whether the particular conduct controversy falls within the scope of § 7 or 8 of the NLRA:
Garmon, 359 U.S. at 244-46, 79 S.Ct. 773.
The Supreme Court further explained that "to allow the States to control activities that are potentially subject to federal regulation involves too great a danger of conflict with national labor policy." Id. at 247, 79 S.Ct. 773. The Court subsequently summarized the framework it established in Garmon as follows:
Belknap, 463 U.S. at 498-99, 103 S.Ct. 3172 (citations omitted) (emphasis added); see also Jones, 460 U.S. at 676, 103 S.Ct. 1453. Thus, to determine whether Hussaini's state law claims are preempted under the Garmon doctrine, the court must ask "whether the conduct at issue was arguably protected or prohibited by the NLRA." International Longshoremen's Ass'n v. Davis, 476 U.S. 380, 394, 106 S.Ct. 1904, 90 L.Ed.2d 389 (1986).
As the Eighth Circuit Court of Appeals has explained:
Lupiani v. Wal-Mart Stores, Inc., 435 F.3d 842, 846 (8th Cir.2006). In this case, like Garmon, the potential conflict is between the NLRA and state law. Here, Gelita, as the party claiming that all of Hussaini's Iowa state common law claims are preempted by the NLRA, bears the burden of showing that the challenged conduct is arguably prohibited or protected by the NLRA. See Davis, 476 U.S. at 395, 106 S.Ct. 1904; see also Ohio Adm'rs, Inc. v. Walcher & Fox, Inc., 270 F.3d 1018, 1027 (6th Cir.2001) ("The party arguing Garmon preemption bears the burden of showing that the conduct at issue is prohibited or protected by the [NLRA]."). Accordingly, the court must conduct a Garmon analysis of each of Hussaini's three state causes of action in this case to ascertain whether they are preempted.
In Count One, Hussaini sets out a claim of discharge in violation of public policy. Under Iowa law, "[a]bsent a valid contract of employment, an employment relationship is generally considered to be inherently indefinite and presumed to be at-will." Fitzgerald v. Salsbury Chem., Inc., 613 N.W.2d 275, 280 (Iowa 2000) (citing Anderson v. Douglas & Lomason Co., 540 N.W.2d 277, 281 (Iowa 1995)); see Jasper v. H. Nizam, Inc., 764 N.W.2d 751, 761 (Iowa 2009). An at-will employment
The Iowa Supreme Court first recognized such a claim in Springer I. See Springer I, 429 N.W.2d at 560. In Springer I, the plaintiff alleged she was fired from her job because she had filed a workers' compensation claim and contended that her firing constituted a discharge in violation of public policy. Id. at 558-59. Reversing the decision of an Iowa district court, which had entered a directed verdict in favor of the employer, the Iowa Supreme Court recognized a remedy for employees at-will who are terminated "when the discharge serves to frustrate a well-recognized and defined public policy of the state." Id. at 560. The Iowa Supreme Court found such a public policy in the protections of the Iowa's workers' compensation statute, and concluded that this statute evinced "a clear expression that it is the public policy of [Iowa] that an employee's right to seek the compensation which is granted by law for work-related injuries should not be interfered with regardless of the terms of the contract of hire." Id. at 560-61. The Iowa Supreme Court further concluded that allowing the firing of an employee seeking workers' compensation benefits would undercut that public policy, "by sanctioning wrongful discharge actions for contravention of a public policy which has been articulated in a statutory scheme, we are acting to advance a legislatively declared goal." Id. at 561.
Since recognizing a claim of discharge in violation of public policy in Springer I, the Iowa Supreme Court has acknowledged several other violations of public policy sufficient to give rise to such a claim. See Jasper, 764 N.W.2d at 767-68 (firing for refusing to violate administrative rule regarding ratio of children to care providers for daycare facility); Fitzgerald, 613 N.W.2d at 286 (discharge for refusing to commit perjury); Teachout v. Forest City Cmty. Sch. Dist., 584 N.W.2d 296, 300 (Iowa 1998) (termination of employees for attempting to report child abuse); Lara v. Thomas, 512 N.W.2d 777, 782 (Iowa 1994) (discharge of employees for pursuing partial unemployment benefits); see also Wilcox v. Hy-Vee Food Stores, Inc., 458 N.W.2d 870, 872 (Iowa Ct.App.1990) (retaliatory discharge of employee who refused to take a polygraph test).
In order to prevail on her claim of wrongful discharge in violation of public policy, Hussaini must prove:
Jasper, 764 N.W.2d at 761 (citing Lloyd v. Drake Univ., 686 N.W.2d 225, 228 (Iowa 2004)); see Davis v. Horton, 661 N.W.2d 533, 535-36 (Iowa 2003) (setting out the same four element test); Springer v. Weeks & Leo Co., Inc., 475 N.W.2d 630, 633 (Iowa 1991) (Springer II) (approving a jury instruction with five elements substantially similar to the four elements listed above).
The preemption issue here turns on the public policy element of the tort. Iowa courts have typically looked to statutes or administrative regulations as the source of a public policy. See Jasper, 764 N.W.2d at 762; Teachout, 584 N.W.2d at 300; Lara, 512 N.W.2d at 782; Springer I, 429 N.W.2d at 560. Here, Hussaini concedes that the public policy at issue is the firing of the four Union supporters in violation of the NLRA and Gelita's attempt to cover up this violation by firing her too. Thus, Hussaini is alleging that Gelita's violation of public policy is its engaging in unfair labor practices in violation of § 8 of the NLRA, namely, "discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization." 29 U.S.C. § 158(a)(3). Thus, the same conduct which forms the basis of Hussaini's discharge in violation of public policy claim also underlies the unfair labor practice charges currently before the NLRB, and the same facts would need to be determined in each proceeding. This creates a risk of conflicting rulings from this court and the NLRB, and threatens to interfere with the NLRB's enforcement of national labor relations policy. See Jones, 460 U.S. at 682, 103 S.Ct. 1453 (state claim preempted where fundamental element of claim also had to be proved to make out a case under the NLRA).
Hussaini argues that her state law claims are not preempted because her state law claims involve different elements than those unfair labor practice claims presently before the NLRB. Hussaini urges this court to adopt an identical element test for preemption based upon this statement found in Sears:
Sears, 436 U.S. at 197, 98 S.Ct. 1745. The court declines to adopt such a test here. First, the court notes that in Sears the Supreme Court spoke in broad terms of "the controversy presented" rather than using more restrictive language such as the claims or issues presented. The controversy here, Gelita's firing of the pro-Union supporters in violation of the NLRA and its attempt to cover up that action by also firing Hussaini, is identical to the
In Count Two, Hussaini alleges a claim of promissory estoppel. Under Iowa law, the elements of promissory estoppel are:
Kolkman v. Roth, 656 N.W.2d 148, 156 (Iowa 2003) (quoting Schoff v. Combined Ins. Co. of Am., 604 N.W.2d 43, 47 (Iowa 1999)); see also In re Marriage of Harvey, 523 N.W.2d 755, 756 (Iowa 1994) (citing Merrifield v. Troutner, 269 N.W.2d 136, 137 (Iowa 1978)); Farmers State Bank v. United Cent. Bank of Des Moines, 463 N.W.2d 69, 71 (Iowa 1990); National Bank of Waterloo v. Moeller, 434 N.W.2d 887, 889 (Iowa 1989); City of Cedar Rapids v. McConnell-Stevely-Anderson Architects & Planners, P.C., 423 N.W.2d 17, 19 (Iowa 1988); Estate of Graham v. Fergus, 295 N.W.2d 414, 418 (Iowa 1980); Merrifield v. Troutner, 269 N.W.2d 136, 137 (Iowa 1978); Uhl v. City of Sioux City, 490 N.W.2d 69, 73 (Iowa Ct.App.1992). The party asserting the doctrine of promissory estoppel as its theory of recovery has the burden of proving this theory, and "strict proof of all elements is required." National Bank of Waterloo, 434 N.W.2d at 889 (citing Pillsbury Co. v. Ward, 250 N.W.2d 35, 39 (Iowa 1977)).
Here, the gravamen of Hussaini's promissory estoppel claim is that Gelita promised her job security, protection from harassment and a promotion in exchange for her obtaining the signatures necessary to hold an election to decertify the Union as the laboratory employees' collective bargaining representative. Petition at ¶ 22. As a result of Gelita's promises, Hussaini, with the aid of Gelita's management, "obtained[ed] the necessary signatures for the decertification election in direct violation of the National Labor Relations Act." Petition at ¶ 9. Although Hussaini provided all the assistance requested by Gelita, Gelita nonetheless fired her, breaching its promise to
Under these alleged circumstances, Hussaini and Gelita acted together to engage in unfair labor practices prohibited by § 8 of the NLRA. Thus, Hussaini's promissory estoppel action concerns "conduct that is actually or arguably either prohibited or protected by the Act." Belknap, 463 U.S. at 498, 103 S.Ct. 3172 (citations omitted) (emphasis added). Clearly, in determining whether Gelita has committed unfair labor practices against its workers and the Union, the NLRB's focus will be on whether Gelita asked Hussaini to front its efforts at having the Union decertified, and then pretextually fired her with the four pro-Union workers in an attempt to mask its true reason for its firing of the four proUnion employees, those employees' efforts against decertification of the Union as the laboratory employees' collective bargaining representative. Gelita's conduct, if proven to be true, would constitute an unfair labor practice in violation of § 8(a)(3) of the NLRA, which provides that it is an unlawful labor practice for an employer to discharge or otherwise discriminate against an employee in retaliation for the employee's union activity. 29 U.S.C. § 158(a)(3); see Hospital Cristo Redentor, Inc. v. N.L.R.B., 488 F.3d 513, 518 (1st Cir.2007) ("An employer violates section 8(a)(3), as well as section 8(a)(1), by discharging an employee for engaging in union activities."); 6 West Ltd. Corp. v. N.L.R.B., 237 F.3d 767, 778 (7th Cir.2001) ("A company is free to discharge its employees `for good, bad, or no reasons, so long as its purpose is not to interfere with union activity.'") (quoting Carry Cos. of Ill. v. N.L.R.B., 30 F.3d 922, 926 (7th Cir.1994)); USF Red Star, Inc. v. N.L.R.B., 230 F.3d 102, 106 (4th Cir.2000) ("A company violates 29 U.S.C. § 158(a)(3) if it discharges an employee for engaging in protected union activity."); N.L.R.B. v. Talsol Corp., 155 F.3d 785, 797 (6th Cir. 1998) (noting that "`if the employer fires an employee for having engaged in union activities and has no other basis for the discharge, or if the reasons that he proffers are pre-textual, the employer commits an unfair labor practice.'") (quoting N.L.R.B. v. Transp. Management Corp., 462 U.S. 393, 398, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983)). Consequently, Hussaini's promissory estoppel claim lies within the exclusive jurisdiction of the NLRB. This court, therefore, lacks jurisdiction to hear this claim because it is preempted by the NLRA. Accordingly, Gelita's Motion to Dismiss is granted as to Count II of Hussaini's petition.
Hussaini also alleges a claim of fraudulent misrepresentation against Gelita. In order to establish her claim of fraudulent misrepresentation, Hussaini must prove:
Midwest Home Distributor, Inc. v. Domco Indus., Ltd., 585 N.W.2d 735, 737 (Iowa 1998) (citing Magnusson Agency v. Public Entity Nat'l Co.-Midwest, 560 N.W.2d 20, 27-28 (Iowa 1997)); accord Smidt v. Porter, 695 N.W.2d 9, 22 (Iowa 2005); Lloyd v. Drake Univ., 686 N.W.2d 225, 233 (Iowa
Hussaini's fraudulent misrepresentation claim is grounded on the same circumstances giving rise to her promissory estoppel claim. She alleges that Gelita represented to her that she would have job security, protection from harassment, and a promotion in exchange for her assistance in obtaining the signatures necessary to hold an election to decertify the Union as the laboratory employees' collective bargaining representative. Petition at ¶ 31. Gelita's representation was false and made with the intention of deceiving Hussaini. Petition at ¶¶ 32, 35. Hussaini acted in reliance on Gelita's representation, and that representation was the proximate cause of her being damaged. Petition at ¶¶ 36-37.
For the same reasons discussed above with respect to Hussaini's promissory estoppel claim, the court concludes that this claim is also preempted by the NLRA under the Garmon doctrine. Again, this court's inquiry must focus on the overlap between this cause of action and the current NLRB actions. Any determination of this claim necessarily rests on whether Gelita recruited Hussaini to act as its secret intermediary in its attempt to decertify the Union but than fired her along with the four pro-Union workers in order to hide its true reason for their firing, a retaliatory discharge grounded in Gelita's anti-Union animus. As such, resolution of this claim is also substantially dependent upon, and inextricably intertwined with, the claims of unfair labor practices presently before the NLRB. Thus, this claim not only implicates provisions of the NLRA, but allowing this claim to proceed runs the risk of a conflict between the judiciary and the NLRB. Therefore, Hussaini's fraudulent misrepresentation claim is preempted under the NLRA. Accordingly, Gelita's Motion to Dismiss is also granted as to Count III of Hussaini's petition.
After conducting a Garmon preemption analysis of each of Hussaini's three state law claims in this case, the court concludes that all three state law claims are preempted by the NLRA. Thus, defendant Gelita's Motion to Dismiss is granted.
29 U.S.C. § 157. "Sections 8(a) and 8(b) define certain employer and union practices as unfair labor practices." Local 926, Int'l Union of Operating Engineers, AFL-CIO v. Jones, 460 U.S. 669, 672 n. 3, 103 S.Ct. 1453, 75 L.Ed.2d 368 (1983). In particular, § 8(a) provides that it is an unfair labor practice for an employer:
29 U.S.C. § 158(a).
