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McCALL v. VOLUME SERVICES OF AMERICA

September 13, 2005.

ROBERT McCALL, et al., Plaintiffs,
v.
VOLUME SERVICES OF AMERICA, INC., et al., Defendants.



The opinion of the court was delivered by: MAXINE CHESNEY, District Judge

ORDER REMANDING ACTION

On June 21, 2005, the Court ordered defendants to show cause why the above-titled action should not be remanded for lack of subject matter jurisdiction. Before the Court is the response filed on behalf of defendants Bon Appetit Management Company, Inc. and Marcus Hartmann (collectively, "Bon Appetit"), and a joinder therein filed by defendants Volume Services of America, Inc., d/b/a Centerplate, and William Greathouse (collectively, "Centerplate"). Plaintiffs Robert McCall, Cheryl Cross-Toby, Barbara Patch, Michelle Jackson, Deborah Torano, and Cornell James filed a reply to defendants' response. Having considered the papers filed by the parties, the Court rules as follows.*fn1

BACKGROUND

  Plaintiffs allege they are employed by Centerplate as Luxury Suite Servers at SBC Park during baseball games, (see Compl. ¶ 17), and that Centerplate hired Bon Appetit as its subcontractor to provide food and beverage services, (see id. ¶ 16.)

  According to plaintiffs, during the 2000 season, plaintiffs would present customers with a "guest check" that included a line for an 18% service charge and another line for tips. (See id. ¶ 18.) Plaintiffs allege that in April 2001, defendants altered the language on the guest checks to state, "A portion of the service charge is distributed to your server and support staff," (see id. ¶ 19), and, in 2002, added, "Any additional gratuity is at your discretion," (see id. ¶ 22). Plaintiffs also allege that although they complained to defendants that such language on the guests checks resulted in a reduction in tips, defendants refused to change the language and would not allow plaintiffs to discuss with customers the amount of the service charge plaintiffs received. (See id. ¶ 31.) According to plaintiffs, defendants made a misrepresentation to plaintiffs when defendants told plaintiffs that a "portion of the service was a tip." (See id. ¶ 20.)

  Plaintiffs further allege that during the 2004 season, defendants implemented a new policy whereby plaintiffs were not allowed to collect tips left by customers, where the tip was charged on a credit card and the holder had not signed the guest check. (See id. ¶ 32.) According to plaintiffs, such policy resulted in a further loss of tips, because the credit card holder often was not present at the ballpark. (See id.)

  On April 1, 2005, plaintiffs filed the instant complaint in state court, alleging statutory claims under the California Labor Code and the California Business and Professions Code, as well as claims for fraud, negligent misrepresentation, and conversion. On June 3, 2005, defendants removed the action on the ground plaintiffs' claims are completely preempted by the Labor Management Relations Act ("LMRA")*fn2 and thus arise under federal law. DISCUSSION

  The LMRA completely preempts state law claims brought to enforce collective bargaining agreements, as well as "state-law actions that require interpretation of labor agreements." See Balcorta v. Twentieth Century-Fox Film Corp., 208 F. 3d 1102, 1107-08 (9th Cir. 2000) (internal quotation and citation omitted). Here, defendants argue, plaintiffs' claims are completely preempted by the LMRA, because resolution of the claims will require a court to interpret certain provisions of the parties' collective bargaining agreement ("CBA"),*fn3 specifically, the following provisions:
Gratuities for Suite Employees as follows:
Suite Attendants: $103.00 per shift effective 4/1/03 Suite Cashiers $40.00 per shift effective 4/1/03 Managers/Runners $38.00 per shift effective 4/1/03.
(See Notice of Removal Ex. C at 25.)
 
No Employee will be permitted to requests [sic] or encourage tips. Any such employees [sic] who requests or encourages tips will be subject to disciplinary action up to and including discharge. Employees may accept tips but will not be permitted to solicit tips. Any such employee who solicits tips will be subject to disciplinary action up to and including discharge.
(See id. Ex. C at 12.)
 
In the exercise of its customary management rights, the Employer reserves the right to discipline and/or discharge any employee for the violation of any reasonable rules or regulations made by the said Employer or for inefficiently [sic] or incompetence in the work in which the employee is classified or for other reasons of just cause.
(See id. Ex. C at 2.)

  Plaintiffs' complaint contains nine causes of action, which the Court will address in the order discussed in defendants' response to the Order to Show Cause.

  A. Fraud

  In their Seventh Cause of Action, plaintiffs allege a claim for fraud. Specifically, plaintiffs allege that defendants represented to them that "a portion of the 18% service charge is a tip," and that such representation was false because "a service charge is not a tip under the law." (See Compl. ¶ 65.)*fn4

  Defendants argue that, in order to resolve whether the alleged statement was a misrepresentation, a court will be required to interpret the above-quoted "Gratuities for Suite Employees" provision of the CBA. Defendants note that although the provision entitles plaintiffs to a specific "gratuity" per shift, the CBA is silent as to the source of the gratuity. Thus, defendants argue, a court would have to determine whether the CBA provides that the source of the gratuity is the service charge. As noted, however, plaintiffs allege that the representation at issue was false because it is contrary to law, i.e., that, as a matter ...


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