Opinion
No. 380937
July 6, 2004
MEMORANDUM OF DECISION
The plaintiff, Michael Verrilli, has filed a two-count revised complaint against the defendant, Sikorsky Aircraft Corporation, in which he alleges the following. The plaintiff was employed by the defendant from March 5, 1979 through March 30, 2000. In September 1999 and on March 30, 2000, the defendant requested that the plaintiff submit to drug tests and the plaintiff complied. On March 30, 2000, the defendant terminated the plaintiff's employment, allegedly for testing positive for drug use.
In the first count of his revised complaint, the plaintiff alleges that he was wrongfully discharged in violation of General Statutes § 31-51x, for the defendant required him to take drug tests without any reasonable suspicion that he was using alcohol or drugs in a way that could negatively impact his performance at work. In the second count of the revised complaint, the plaintiff alleges that the defendant violated General Statutes § 31-51u, because the defendant did not use "reliable methodology in drug testing the [p]laintiff and by failing to utilize a reliable second drug test to confirm the Defendant's allegation of a positive drug [test] result." The plaintiff seeks to recover damages, as well as attorneys fees, costs, and special damages pursuant to General Statutes § 31-51z.
Section 31-51x provides:
(a) No employer may require an employee to submit to a urinalysis drug test unless the employer has reasonable suspicion that the employer is under the influence of drugs or alcohol which adversely affects or could adversely affect such employee's job performance. The Labor Commissioner shall adopt regulations in accordance with chapter 54 to specify circumstances which shall be presumed to give rise to an employer having such a reasonable suspicion, provided nothing in such regulations shall preclude an employer from citing other circumstances as giving rise to such a reasonable suspicion.
(b) Notwithstanding the, provisions of subsection (a) of this section, an employer may require an employer to submit to a urinalysis drug test on a random basis if (1) such test is authorized under federal law, (2) the employee serves in an occupation which has been designated as a high-risk or safety-sensitive occupation pursuant to regulations adopted by the Labor Commissioner pursuant to chapter 54, or (3) the urinalysis is conducted as part of an employee assistance program sponsored or authored by the employer in which the employee voluntarily participates.
Section 31-5u provides in relevant part that: "a) No employer may determine an employee's eligibility for promotion, additional compensation, transfer, termination, disciplinary or other adverse personnel action solely on the basis of a positive urinalysis drug test result unless (1) the employer has given the employee a urinalysis drug test, utilizing a reliable methodology, which produced a positive result and (2) such positive test result was confirmed by a second urinalysis drug test, which was separate and independent from the initial test, utilizing a gas chromatography and mass spectrometry methodology or a methodology which has been determined by the Commissioner of Public Health to be as reliable or more reliable than the gas chromatography and mass spectrometry methodology."
Section 31-51z provides in relevant part that: "(a) Any aggrieved person may enforce the provisions of sections 31-51t to 31-51aa, inclusive, by means of a civil action. Any employer, laboratory or medical facility that violates any provision of sections 31-51t to 31-51aa, inclusive, or who aids in the violation of any provision of said sections shall be liable to the person aggrieved for special and general damages, together with attorneys fees and costs."
The defendant has filed a motion to dismiss the plaintiff's revised complaint in which it argues that the court lacks subject matter jurisdiction over the plaintiff's claims. The defendant's primary ground, and the only one addressed in its memorandum in support of its motion, is that the plaintiff's state law claims are preempted by § 301 of the Labor Management Relations Act, 29 U.S.C. § 185. The defendant's basis for this ground is that a collective bargaining agreement (CBA) sets out the defendant's drug testing policy, and, therefore, the plaintiff's claims, which relate to the administration and processing of employee drug tests, are dependent upon an interpretation of the terms of the CBA. In its motion to dismiss, the defendant also asserts as a ground that the CBA contains a mandatory grievance and arbitration procedure for resolving claims arising out of the CBA. This ground has not been briefed and is, therefore, considered abandoned by the court. Grace Community Church v. Planning Zoning Commission, 42 Conn. Sup. 256, 259, 615 A.2d 1092, 6 Conn. L. Rptr. 152 (1992).
29 U.S.C. § 185(a) provides in relevant part that "[s]uits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this Act, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties."
The plaintiff has filed an objection to the defendant's motion to dismiss, accompanied by a memorandum and an affidavit from the plaintiff. The plaintiff argues that his claims are not preempted by federal law and that he did not fail to exhaust his remedies because the fact that he is covered by a CBA does not affect his ability to maintain state statutory claims.
"A motion to dismiss shall be used to assert lack of jurisdiction over the subject matter, essentially asserting that the plaintiff cannot as a mater of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 51, 794 A.2d 498 (2002). "A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it . . . Once it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action." (Citation omitted; internal quotation marks omitted.) Amodio v. Amodio, 247 Conn. 724, 728, 724 A.2d 1084 (1999).
The defendant asserts that the plaintiff's state law claims are preempted under § 301 of the Labor Management Relations Act, thus depriving this court of subject matter jurisdiction over the claims. "Section 301 governs claims founded directly on rights created by collective-bargaining agreements, and also claims substantially dependent on analysis of a collective bargaining agreement." (Internal quotation marks omitted.) Barbieri v. United Technologies Corp., 255 Conn. 708, 722, 771 A.2d 915 (2001). The defendant argues in support of its motion to dismiss that resolution of the plaintiff's state law claims substantially depend upon analysis of the CBA.
"[I]t is the legal character of a claim, as `independent' of rights under the collective-bargaining agreement . . . that decides whether a state cause of action may go forward." (Citations omitted.) Livadas v. Bradshaw, 512 U.S. 107, 123-24, 114 S.Ct. 2068, 129 L.Ed.2d 93 (1994). "[Section] 301 preemption merely ensures that federal law will be the basis for interpreting collective-bargaining agreements, and says nothing about the substantive rights a State may provide to workers when adjudication of those rights does not depend upon the interpretation of such agreements. In other words, even if dispute resolution pursuant to a collective-bargaining agreement, on the one hand, and state law, on the other, would require addressing precisely the same set of facts, as long as the state-law claim can be resolved without interpreting the agreement itself, the claim is `independent' of the agreement for § 301 pre-emption purposes." (Internal quotation marks omitted.) Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 262, 114 S.Ct 2239, 129 L.Ed.2d 203 (1994).
The defendant asserts that because the CBA covering the plaintiff's position sets forth drug testing guidelines, the plaintiff's claims are preempted because their resolution is substantially dependent on the terms of the labor agreement. The plaintiff argues in response that his state law claims do not require analysis of the CBA provisions, and, therefore, are not preempted by § 301.
The plaintiff's claim in the first count is that the defendant violated General Statutes § 31-51x by requiring him to submit to drug testing without reasonable suspicion that he was using drugs or alcohol to the extent that his work performance was being or could be negatively impacted. General Statutes § 31-51x provides:
(a) No employer may require an employee to submit to a urinalysis drug test unless the employer has reasonable suspicion that the employee is under the influence of drugs or alcohol which adversely affects or could adversely affect such employee's job performance. The Labor Commissioner shall adopt regulations in accordance with chapter 54 to specify circumstances which shall be presumed to give rise to an employer having such a reasonable suspicion, provided nothing in such regulations shall preclude an employer from citing other circumstances as giving rise to such a reasonable suspicion.
(b) Notwithstanding the provisions of subsection (a) of this section, an employer may require an employee to submit to a urinalysis drug test on a random basis if (1) such test is authorized under federal law, (2) the employee serves in an occupation which has been designated as a high-risk or safety-sensitive occupation pursuant to regulations adopted by the Labor Commissioner pursuant to chapter 54, or (3) the urinalysis is conducted as part of an employee assistance program sponsored or authorized by the employer in which the employee voluntarily participates. CT Page 10551
The first count, though consisting of only seven simple paragraphs, is a quagmire of contradictions and nonsequiturs. First, the plaintiff alleges that the defendant "requested" that he submit to drug tests. "Request" means "to ask as a favor or privilege . . ." Merriam-Webster's Collegiate Dictionary (10th Ed.); see State v. Harris, 32 Conn. App. 831, 841 n. 10, 632 A.2d 50 (1993), appeal dismissed, 230 Conn. 347, 644 A.2d 911 (1994). "In its ordinary or natural meaning the word `request' is precatory and not mandatory." Banks v. Banks, 262 S.W.2d 119, 121 (Tex.Civ.App. 1953). There is no legal prohibition against an employer making such a request. General Statutes § 31-51x provides only that "[n]o employer may require an employee to submit to a urinalysis drug test" (emphasis added) unless the employer has a reasonable suspicion provided by the statute. To request is not synonymous with to require. Norfolk Western Ry. v. Transportation Communications International Union, 17 F.3d 696, 701 (4th Cir. Va. 1994); see also United States v. John Henricks, Inc., 388 F.2d 677, 679 (7th Cir. Ill. 1968) (under regulation providing that motor carrier shall "require" truck drivers to keep a driver's daily log, the word "require" "suggests the authority and duty to impose sanctions [upon drivers] for noncompliance and [the motor carrier's obligation] is not satisfied by a mere request [that logs be kept]").
"In interpreting the language of a statute, the words must be given their plain and ordinary meaning and their natural and usual sense unless the context indicates that a different meaning was intended." (Internal quotation marks omitted.) Blumenthal v. Barnes, 261 Conn. 434, 460 n. 37, 804 A.2d 152 (2002). The plain meaning of "require" in the sense in which it is used in the statute is "to claim or ask for by right and authority . . ." Merriam-Webster's Collegiate Dictionary (10th Ed.); see Harwood v. Dysart Consol. School Dist., 237 Iowa 133, 21 N.W.2d 334, 336 (1946) (to require may mean "`to demand,' or `to exact,' or `to enforce'"); Missouri Pac. R. Co. v. Illinois Commerce Comm'n, 401 Ill. 241, 81 N.E.2d 871, 876 (1948) (noting that according to Webster's New International Dictionary, "require" can be defined as "to demand or exact as necessary or appropriate"); Hiestand v. Ristau, 135 Neb. 881, 284 N.W. 756, 759 (1938) (the word "requires," as used in the Workmen's Compensation Act, "means `compel' or `exact'"). A request to take a drug test is, without more, not `a requirement that one take a drug test. Otherwise stated, a law prohibiting an employer from requiring an employee to take a drug test does not prohibit a request by the employer. See Eilene's Beauty Parlor, Inc. v. Danaher, 11 Conn. Sup. 340, 343-44 (1942) (regulation of Administrator of Unemployment Compensation Act providing that "employees shall not be required [by employer] to disclose the amount [of tips they] actually received" did not prohibit employer from requesting such information); see also United States v. San Francisco Bridge Co., 88 F. 891, 893 (D.Cal. 1898) (a charge in an information that defendant "required" its laborers to work more than eight hours "necessarily implies that in making such requirement there was an intention upon the part of the defendant that its order or direction should be obeyed"); compare United States v. Oregon-Washington R Nav. Co., 213 F. 688, 690 (D.Wash. 1914), aff'd, 223 F. 596 (9th Cir. Wash. 1915).
Second, the plaintiff affirmatively alleges in count one of his revised complaint that the drug tests were "submitted to by the plaintiff." Apart from whether the plaintiff's union could, in effect consent on the plaintiff's behalf to drug testing, the plaintiff's own complaint affirmatively raises the issue of his consent and alleges nothing that suggests coercion. Such consent vitiates a claim under § 31-51x. Poulos v. Pfizer, Inc., 244 Conn. 598, 607-08, 711 A.2d 688 (1998).
Third, the wrongful discharge claim purports to be based on General Statutes § 31-51k. That statute does not prohibit the discharge of an employee. Fourth, absent a statutory cause of action for wrongful discharge, the plaintiff is left with a common-law action. However, in his brief, he does not dispute that he was subject to a CBA. This subverts any common-law claim of wrongful discharge. The doctrine of wrongful discharge protects only employees at will. D'Ulisse-Cupo-v. Board of Directors of Notre Dame High School, 202 Conn. 206, 211 n. 1, 520 A.2d 217 (1987). Since the plaintiff was protected by a collective bargaining agreement, he was not an at-will employee and cannot assert a common-law cause of action for wrongful discharge. Tomlinson v. Board of Education, 226 Conn. 704, 730 n. 18, 629 A.2d 333 (1993) (noting that tenured teacher whose employment contract is governed in part by a CBA is not entitled to maintain a common-law action for wrongful discharge); see also Cross v. Nearine, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 940538675 (February 17, 1995, Wagner, J.) (granting defendants' motion to dismiss plaintiff's common-law claims, including a wrongful discharge claim because plaintiff did not exhaust the administrative remedies available under the CBA); Cassotto v. Winchester Board of Education, Superior Court, judicial district of Litchfield, Docket No. CV 93 0062801 (November 15, 1994, Pickett, J.) ( 13 Conn. L. Rptr. 4) (plaintiff covered by CBA not entitled to maintain common-law wrongful discharge claim because plaintiff failed to exhaust administrative remedies and no exception to the exhaustion doctrine applied).
It is unnecessary to unravel this legal quagmire, however. "Preemption of state law under the Labor Management Relations Act . . . does not divest state courts of subject matter jurisdiction, but simply supplants state substantive law. Livadas v. Bradshaw, [ supra, 512 U.S. 122] (noting that § 301 of the Labor Management Relations Act `does not preclude state courts from taking jurisdiction over cases arising from disputes over the interpretation of collective-bargaining agreements, [but] state contract law must yield to the developing federal common law, lest common terms in bargaining agreements be given different and potentially inconsistent interpretations in different jurisdictions'). `[The Supreme] Court has made clear that § 301 is a potent source of federal labor law, for [although] state courts have concurrent jurisdiction over controversies involving collective-bargaining agreements . . . state courts must apply federal law in deciding those claims . . . and indeed any state-law cause of action for violation of collective-bargaining agreements is entirely displaced by federal law under § 301 . . . State law is thus "pre-empted" by § 301 in that only the federal law fashioned by the courts under § 301 governs the interpretation and application of collective-bargaining agreements.' (Citations omitted.) United Steelworkers of America, AFL-CIO-CLC v. Rawson, 495 U.S. 362, 368, 110 S.Ct. 1904, 109 L.Ed.2d 362 (1990); see also Local 174, Teamsters, Chauffeurs, Warehousemen Helpers of America v. Lucas Flour Co., 369 U.S. 95, 103, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962) (noting that § 301 requires that substantive principles of federal labor law take precedence over state law in enforcement of collective bargaining agreements); Textile Workers Union of America v. Lincoln Mills of Alabama, 353 U.S. 448, 457, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957) (noting that any state law applied that is compatible with federal labor policy will be absorbed as federal law and will not be independent source of private rights)." Barbieri v. United Technologies Corp., supra, 255 Conn. 717-18. Therefore, the court has jurisdiction over the plaintiff's complaint, and the motion to dismiss is denied.
BY THE COURT
Bruce L. Levin Judge of the Superior Court