Sunday, July 03, 2005
NLRA does not necessarily preempt state law wrongful discharge claim
In Lontz v. Tharp, the Fourth Circuit in an opinion by Judge Wilkinson joined by Judges Luttig and Traxler held that the plaintiff's state law wrongful discharge claim was not preempted by the National Labor Relations Act, where she claimed in essence that she was in retaliation for union-organizing activity. The case was filed in state court, and removed based on total NLRA preemption. In reversing, the Court reasoned that there was either the NLRB had exclusive jurisdiction, or would allow a state law claim, but in either event there was no jurisdiction in the district court, and so left the preemption defense to be decided on remand in state court.