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July 23, 1997


The opinion of the court was delivered by: BREWSTER

 On June 10, 1997, Defendants filed a motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Plaintiffs are represented by Dennis Grady and Jeff Geraci of Grady and Associates. Defendants are represented by John Klinedinst and Garrett Gillespie of Klinedinst, Fliehman & McKillop. After careful consideration of the moving and opposing papers, the Court hereby DENIES Defendants' motion to dismiss.

 I. Background

 Antonio Araiza worked for Defendant National Steel and Shipbuilding Company ("NASSCO") for approximately 22 years before being terminated on July 22, 1997. Araiza was placed on disability by his physician on June 12, 1995 due to medical problems including cirrhosis of the liver and gall stones. Plaintiff's physician released him to return to work in July 1996. Araiza was then examined by a physician of NASSCO's choosing, who cleared him to return to work on August 19, 1996. Araiza reported to NASSCO's human resources department and spoke with Defendant Carl Hinrichson. Plaintiff alleges that Hinrichson accused him of abusing alcohol and then terminated him.

 Plaintiff filed a complaint in federal court on May 1, 1997, alleging violations of the Age Discrimination in Employment Act ("ADEA"), the Americans with Disabilities Act ("ADA"), and the California Fair Employment and Housing Act ("FEHA"). Plaintiff indicated that timely charges of discrimination were filed with the Equal Employment Opportunity Commission and the California Department of Fair Employment and Housing, and that he received notifications of the right to sue.

 On June 10, 1997, Defendants filed a motion to dismiss for lack of subject matter jurisdiction. As a member of Carpenters Local 1300, Plaintiff was subject to a collective bargaining agreement ("CBA") entered into by NASSCO and Plaintiff's union. Defendants argue that Plaintiff's ADEA, ADA, and FEHA claims are barred by the CBA's mandatory arbitration provision. The agreement states that all grievances, complaints, and disputes must be settled in accordance with the grievance procedure. In the event that an agreement is not reached, either party may refer the matter to arbitration. Defendants do not contend that Plaintiff waived his rights under the ADEA, ADA, or FEHA. Rather, Defendants move to compel Plaintiff to arbitrate his claims in accordance with the grievance and arbitration provisions of his union's CBA. Defendants additionally argue that Plaintiff's FEHA claim is preempted under Section 301 of the Labor Management Relations Act ("LMRA").

 II. Discussion

 A. Standards for 12(b)(1) Motion to Dismiss

 Dismissal is appropriate when the court lacks subject matter jurisdiction over a claim. Fed. R. Civ. P. 12(b)(1). A 12(b)(1) motion to dismiss may attack either the complaint on its face or the existence of subject matter jurisdiction in fact. See Thornhill Publ'g v. General Tel. & Elecs., 594 F.2d 730, 733 (9th Cir. 1979). The plaintiff, as the party seeking to invoke the court's jurisdiction, bears the burden of establishing subject matter jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Amer., 511 U.S. 375, 128 L. Ed. 2d 391, 114 S. Ct. 1673 (1994).

 When considering a 12(b)(1) motion to dismiss, the district court "is free to hear evidence regarding jurisdiction and to rule on that issue prior to trial, resolving factual disputes where necessary." Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983). "No presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Mortensen v. First Federal Sav. and Loan Ass'n, 549 F.2d 884, 891 (3rd Cir. 1977).

 Defendants properly raise this motion as a 12(b)(1) motion for lack of subject matter jurisdiction. Plaintiff asserts federal question and supplemental jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367. The Court lacks diversity jurisdiction; Araiza is a resident of California, and NASSCO's principal place of business is San Diego, California. See 28 U.S.C. § 1332(c)(1). If the CBA bars Plaintiff from pursuing judicial resolution of his statutory claims, Plaintiff's assertion of federal question jurisdiction would be void and the Court would have no basis for jurisdiction.

 B. The Federal Arbitration Act

 The Federal Arbitration Act ("FAA") is a "congressional declaration of a liberal federal policy favoring arbitration agreements." Moses H. Cone Hospital v. Mercury Constr. Corp., 460 U.S. 1, 24, 74 L. Ed. 2d 765, 103 S. Ct. 927 (1982). Section 2 of the FAA declares that a written agreement to arbitrate "in any maritime transaction or a contract evidencing a transaction involving commerce" is valid and enforceable. *fn1" 9 U.S.C. § 2. "If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court . . . shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement . . . ." 9 U.S.C. § 3. In cases decided under the FAA, "any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration." Moses H. Cone, 460 U.S. at 24-25. Section 1 expressly excludes from the FAA's purview employment contracts of seaman, railroad workers, and any other class of workers engaged in foreign or interstate commerce. 9 U.S.C. § 1. Those who fall within the Section 1 exclusion are not subject to the FAA.

 The Supreme Court has yet to interpret the scope of Section 1. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 25, n.2, 114 L. Ed. 2d 26, 111 S. Ct. 1647 (1991) (declining to address the scope of Section 1 because the arbitration clause at issue was not contained in an employment contract). Under a broad interpretation of Section 1, courts have held that all employment contracts are excluded from the FAA. Id. The Tenth Circuit concluded that Section 1 "encompasses collective bargaining agreements, and [] thus held the FAA 'is generally inapplicable to labor arbitration.'" Harrison v. Eddy Potash, Inc., 112 F.3d 1437, 1454 (10th Cir. 1997) (quoting United Food & Commercial Workers, Local Union No. 7R v. Safeway Stores, Inc., 889 F.2d 940, 944 (10th Cir. 1989)). The Ninth Circuit has not decided how to interpret Section 1. See Mago v. Shearson Lehman Hutton, Inc., 956 F.2d 932, 934 (9th Cir. 1992) (noting that the FAA's application to employment contracts is unresolved). The "majority of the circuits . . . have concluded that the exclusion should be narrowly construed to apply only to workers who . . . are involved directly in interstate transportation of goods." Golenia v. Bob Baker Toyota, 915 F. Supp. 201, 203 (S.D. Cal. 1996) (citing Dickstein v. duPont, 443 F.2d 783, 785 (1st Cir. 1971); Erving v. Virginia Squires Basketball Club, 468 F.2d 1064, 1069 (2nd Cir. 1972); Tenney Eng'g, Inc. V. United Elec. Radio & Mach. Workers, 207 F.2d 450, 452 (3rd Cir. 1953); Asplundh Tree Expert Co. v. Bates, 71 F.3d 592, 596-602 (6th Cir. 1995); Miller Brewing Co. v. Brewery Workers Local No. 9, 739 F.2d 1159, 1162 (7th Cir. 1984), cert. denied, 469 U.S. 1160, 83 L. Ed. 2d 926, 105 S. Ct. 912 (1985)).

 The Court narrowly construes Section 1 of the FAA to exclude only employment contracts of workers directly involved in interstate transportation of goods. Plaintiff's employment as an abrasive blaster does not fall within the ...

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