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Culfin v. IBEW Local 11


June 15, 2010


The opinion of the court was delivered by: Dean D. Pregerson United States District Judge


This matter comes before the Court on a Motion for Summary Judgment filed by the defendant International Brotherhood of Electrical Workers, Local 11 ("the Union"). As of the date of this order, the plaintiff William Culfin ("Plaintiff") has not filed an opposition. After considering the papers submitted by the Union, the Court grants the motion and adopts the following order.


Plaintiff, an electrician and a member of the Union, was dispatched to various job sites in Los Angeles County. (Compl. ¶ 4.) Plaintiff's terms and conditions of employment were governed by collective bargaining agreements signed by the Union and employer contractors. (Id. ¶ 5.)

The gravamen of Plaintiff's complaint is that from May 2007 through May 2009, agents of the Union slandered and harassed him by telling others that he was not competent, failing to prosecute his grievances, and subjecting him to excessive drug testing in violation of the written drug testing policies. (Id. ¶ 8.) Plaintiff alleges that these acts amounted to "blacklisting" him. (Id.)

On January 22, 2010, Plaintiff filed suit against Defendant in Los Angeles Superior Court, alleging three causes of action: (1) violation of public policy, (2) violation of the duty of fair representation, and (3) unfair business practices. After being served with process on March 17, 2010, Defendant timely removed on April 15, 2010.


Federal Rule of Civil Procedure 12(c) provides that "[a]fter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). The Ninth Circuit has held that "the pleadings are closed for the purposes of Rule 12(c) once a complaint and answer have been filed," and that a motion for judgment on the pleadings is "premature" where no answer has yet been filed. Doe v. United States, 419 F.3d 1058, 1061 (9th Cir. 2005). However, where a defendant files a motion for judgment on the pleadings prior to filing an answer, "it is within the court's discretion whether to treat the motion as one to dismiss or as one for summary judgment." Knight v. Storex Sys., Inc., 739 F. Supp. 739, 743 (N.D.N.Y. 1990) (citing Williams v. Walnut Park Plaza, 68 F. Supp. 957, 959 (E.D. Pa. 1946)); cf. Elvig v. Calvin Prebyterian Church, 375 F.3d 951, 954 (9th Cir. 2004) (treating a motion to dismiss pursuant to Rule 12(b)(6) that was filed after an answer as a motion for judgment on the pleadings pursuant to Rule 12(c)). Here, Defendant has not filed an answer to the Complaint. Therefore, the Court will treat the motion for judgment on the pleadings as though it were a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6).

Pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint is subject to dismissal when the Plaintiff's allegations fail to state a claim upon which relief can be granted. When considering a 12(b)(6) motion to dismiss for failure to state a claim, "all allegations of material fact are accepted as true and should be construed in the light most favorable to [the] plaintiff." Resnick v. Hayes, 213 F.3d 433, 447 (9th Cir. 2000).

In Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009), the Supreme Court explained that a court considering a 12(b)(6) motion should first "identify[] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. Next, the court should identify the complaint's "well-pleaded factual allegations, . . . assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) ("In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief" (internal quotation marks omitted)).


A. Claims are Subject to Dismissal Under the Local Rules

Under the local rules, any opposition to a motion must be filed not later than twenty-one days before the hearing and failure to file a timely opposition may be deemed consent to granting the motion. C.D. Cal. Civ. Local R. 7-9; 7-12. Because this motion was noticed for a hearing on Monday, June 14, 2010, Plaintiff's opposition was due by no later than May 24, 2010. As of the date of this Order, Plaintiff has not filed anything in response to Defendant's motion. For that reason alone, it would be appropriate for the Court to grant the motion and dismiss the complaint with prejudice. Nevertheless, a brief discussion of the merits of Defendant's motion is appropriate.

B. Claims are Subject to Dismissal on the Merits

1. First and Third Claims are Preempted

Plaintiff's first cause of action alleges that Defendant's "blacklisting" violated the public policy embodied in "the Fair Representation principles developed under the National Labor Relations Act (NLRA) and the Labor Management Relations Act (LMRA)" and other unspecified codes and regulations. (Compl. ¶ 14.) Plaintiff's third cause of action alleges that Defendant's blacklisting was a breach of the duty of fair representation constituting an unlawful and unfair business practice in violation of the California Business & Professions Code § 17200 et seq. (Compl. ¶ 30-32.)

Unions have a federal statutory duty to represent their members fairly, a duty that "is inferred from unions' exclusive authority under the NLRA, 29 U.S.C. § 159(a), to represent all employees in a bargaining unit." Moore v. Local Union 569 of Int'l Bhd. of Elec. Workers, 989 F.2d 1534, 1540 (9th Cir. 1993), cert. denied, 510 U.S. 1117 (1994). Pursuant to the duty of fair representation, a union has "a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct." Air Line Pilots Ass'n, Int'l v. O'Neill, 499 U.S. 65, 76 (1991).

This federal statutory duty "displaces state law that would impose duties upon unions by virtue of their status as the workers' exclusive collective bargaining representative." Adkins v. Mireles, 526 F.3d 531, 539 (9th Cir. 2008). Therefore, in order to pursue a state law action against a union, "aggrieved workers must make a showing of additional duties, if they exist beyond the normal incidents of the union-employee relationship," with such duties "deriv[ing] from sources other than the union's status as its members' exclusive collective bargaining representative, such as an express provision of the collective bargaining agreement or a collateral contract." Id. In addition, insofar as an employee's action against her union is "substantially dependent" upon the terms of a collective bargaining agreement, it is preempted by § 301 of the LMRA, 29 U.S.C. § 185. Id.

Here, Plaintiff's first and third causes of action are both preempted. Although the first cause of action is styled as one based on a "violation of public policy," and the third as an unfair business practices claim, both hinge on the allegation that the Union breached its duty of fair representation. The first cause of action states that the relevant public policy is one embodied in the "Fair Representation principles" developed under the NLRA and LMRA, (Compl. ¶ 14), while the third states that the unfair business practice the Union engaged in was "deny[ing] its duty of fair representation," (id. ¶29). Thus, insofar as these causes of action purport to state a state law cause of action premised on the duty of fair representation, they are preempted. In essence, Plaintiff's complaint collapses into a single cause of action for breach of the duty of fair representation, discussed further below.

2. Second Cause of Action is Time-Barred

Plaintiff's second cause of action asserts that the Union breached its duty of fair representation by "blacklisting" Plaintiff between May 2007 and May 2009.

In DelCostello v. Teamsters, 462 U.S. 151, 169-71 (1983), the Supreme Court held that a duty of fair representation against a union is subject to a six-month statute of limitations, borrowed from § 10(b) of the NLRA, 29 U.S.C. § 160(b). The statute of limitations begins to run "when the plaintiff knew, or should have known, of the defendant's wrongdoing and can successfully maintain a suit in the district court." Allen v. United Food & Comm. Workers Int'l Union, 43 F.3d 424, 427 (9th Cir. 1994).

Plaintiff alleges that the Union's "blacklisting" continued only through May 2009; however, Plaintiff did not file suit until January 2010. Therefore, it appears on the face of the Complaint that Plaintiff's claim for breach of the duty of fair representation is barred by the six-month statute of limitations.


For the foregoing reasons, the Court (1) converts Defendant's motion for judgment on the pleadings into a motion to dismiss for failure to state a claim, (2) grants the motion, and (3) DISMISSES the Complaint WITH PREJUDICE.



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