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Jose F. andino v. Kaiser Foundation Hospitals


November 23, 2011


The opinion of the court was delivered by: Claudia Wilken United States District Judge



Plaintiff Jose F. Andino brings eight causes of action against Defendant Kaiser Foundation Hospitals based on allegations 14 that Defendant failed to pay overtime wages, provide second meal 15 periods for shifts greater than twelve hours or pay additional 16 wages in lieu of those meal periods, provide itemized wage 17 statements, and timely pay wages upon termination. Plaintiff 18 further alleges that Defendant engaged in unfair competition by 19 failing to pay those wages. Defendant removed the case to federal 20 court and Plaintiff moves for remand. Defendant opposes the 21 motion, and Plaintiff has filed a reply to the opposition. For 22 the reasons stated below, Plaintiff's motion for remand to state 23 court is GRANTED. 24


Plaintiff was employed by Defendant, pursuant to a collective bargaining agreement (CBA), as a patient transporter aide from May 2008 through March 2011.

Plaintiff alleges he was underpaid for shifts when he worked more than eight hours, both when his shifts started and ended on 3 the same calendar day and when the shifts started on one calendar 4 day and extended into the next. He brought eight causes of action 5 in Alameda County Superior Court: (1) underpayment of wages based 6 on alleged improper rounding methodologies that used fractions of 7 hours; (2) failure to pay all overtime wages; (3) failure to pay 8 overtime wages when an eight hour shift begins on one calendar day 9 continues into the next; (4) failure to provide meal periods or 10 pay in lieu thereof; (5) failure to provide accurate wage 11 statements; (6) failure to pay wages owed at termination; (7) violation of California Business and Professions Code sections 13 17200 et. seq. Plaintiff's eighth listed cause of action claims

14 statutory damages for the preceding seven claims. 15

The CBA is between Defendant, its affiliated groups, and SEIU United Healthcare Workers West. It provides that Defendant's 17

Northern California employees shall be paid at the rate of time 18 and one-half "for all hours of work performed in excess of eight 19 (8) hours in any one work day and/or for all hours worked in 20 excess of forty (40) within the work week." Ex. A, Art. XII, 21 § 1(C). The preceding subsection of the CBA defines the term 22 "payroll week" as the "seven (7) day period beginning at 12:01 23 a.m., Sunday, or at the shift changing hour nearest that time," 24 and it defines the term "payroll day" as "a twenty-four (24) hour 25 period, beginning at the same time each Payroll Day as the Payroll 26 Week begins." Ex. A, Art. XII, § 2(B). 27 28

Defendant opposes the motion to remand based on the argument 2 that federal law preempts Plaintiff's third, fifth, sixth, and 3 seventh causes of action. 4


I. Legal Standard 6

A defendant may remove a civil action filed in state court to 7 federal district court so long as the district court could have 8 exercised original jurisdiction over the matter. 28 U.S.C. 9 § 1441(a). Title 28 U.S.C. section 1447(c) provides that if, at 10 any time before judgment, it appears that the district court lacks subject matter jurisdiction over a case previously removed from state court, the case must be remanded. On a motion to remand, 13 the scope of the removal statute must be strictly construed. Gaus 14 v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). "The 'strong 15 presumption' against removal jurisdiction means that the defendant 16 always has the burden of establishing that removal is proper." 17

Id. Courts should resolve doubts as to removability in favor of 18 remanding the case to state court. Id. 19

"In general, district courts have federal-question 20 jurisdiction only if a federal question appears on the face of a 21 plaintiff's complaint." Brennan v. Southwest Airlines Co., 134 22 F.3d 1405, 1409 (9th Cir. 1998) (citing Louisville & Nashville R. 23 Co. v. Mottley, 211 U.S. 149, 152 (1908)). Because the plaintiff 24 is the master of the complaint, a court does not exercise original 25 jurisdiction over a matter solely because a federal defense may be 26 anticipated. Franchise Tax Bd. v. Construction Laborers Vacation 27

Trust, 463 U.S. 1, 14 (1983). A plaintiff chooses what claims he 28 or she wishes to bring and may forgo federal claims. There is, however, an exception to the general rule: the artful pleading 2 doctrine. Artful pleading exists where a plaintiff states an 3 inherently federal claim in state-law terms. Brennan, 134 F.3d at 4 1409. 5


I. Remand 7

Defendant moves to dismiss on the basis of federal pre- emption. Section 301 of the LMRA provides federal jurisdiction 9 over "[s]uits for violations of contracts between an employer and 10 a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between such labor organizations." 29 U.S.C. § 185(a). 13

The Supreme Court has stated that section 301 of the LMRA preempts equivalent remedies under state law and that "the 15 preemptive force of section 301 is so powerful as to displace 16 entirely any state cause of action 'for violation of contracts 17 between an employer and a labor organization.' Any such suit is 18 purely a creature of federal law, notwithstanding the fact that 19 state law would provide a cause of action in the absence of 20 [section] 301." Franchise Tax Bd. v. Construction Laborers 21 Vacation Trust, 463 U.S. 1, 23 (1983); see also Caterpillar Inc. 22 v. Williams, 482 U.S. 386, 393 (1987). 23

A state law claim is completely preempted by section 301 of 24 the LMRA if resolution of the claim requires the interpretation of 25 a collective bargaining agreement. Lingle v. Norge Div. of Magic 26 Chef, Inc., 486 U.S. 399, 413 (1988). "Section 301 governs claims 27 founded directly on rights created by collective-bargaining 28 agreements, and claims 'substantially dependent on analysis of a collective-bargaining agreement.'" Caterpillar, 482 U.S. at 394 2 (citation omitted); Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 3 220 (1985) (tort claim preempted because extent of employer's duty 4 of good faith depends on terms of collective bargaining 5 agreement). 6

Preemption under section 301 will not apply, however, in all 7 instances in which a collective bargaining agreement is present. 8

Section 301 preemption does not apply where a state-law remedy is 9 independent of a collective bargaining agreement in the sense that 10 resolution of the state-law claim does not require construing the collective bargaining agreement. Lingle, 486 U.S. at 407.

Section 301 does not preempt state-law causes of action simply 13 because they require analysis of the same facts that would be at 14 issue in a section 301 claim, Lingle, 486 U.S. at 408-09, or 15 because the court must refer to the collective bargaining 16 agreement, as opposed to interpreting its terms, in order to 17 decide the claim. Livadas v. Bradshaw, 512 U.S. 107, 123-24 18 (1994). Only state-law causes of action "that do not exist 19 independently of private agreements, and that as a result can be 20 waived or altered by agreement of private parties, are preempted 21 by those agreements." Lueck, 471 U.S. at 213. 22

A. Overtime Claims

Defendant asserts that the third cause of action for non- 24 payment of overtime requires interpretation of the CBA. Defendant 25 casts the issue as whether a workday is a calendar day or the 26 twenty-four hour period containing an entire eight-hour work 27 shift. The effect of Defendant's interpretation is that an eight-28 hour shift could span two workdays and not trigger overtime pay 2 for hours worked in excess of eight hours in a single shift. 3

Another judge in this district considered a similar issue in 2007, and found that the plaintiff properly alleged a claim for 5 failure to pay overtime, where an employer set the beginning of 6 the workday at the middle of a shift. The court ruled that an 7 employer cannot circumvent the overtime pay provisions of the 8 California Labor Code by starting the workday in the middle of a 9 shift that would otherwise require overtime pay. In re Wal-Mart 10 Stores, Inc. Wage and Hour Litigation, 505 F. Supp. 2d 609, 617 (N.D. Cal. 2007). The court stated that "California's overtime laws are remedial" and should "be construed so as to promote 13 employee protection." The court read Labor Code section 510(a), 14 "Eight hours of labor constitutes a day's work," as indicating the 15 legislature's intent that "a shift of more than eight hours of 16 consecutive work qualifies for overtime pay." Id. The right to 17 overtime does not depend on an interpretation of the term 18 "workday" as provided by the CBA. 19

California Labor Code section 514 is an exemption providing 20 that sections 510 and 511, which establish the overtime 21 requirements, "do not apply to an employee covered by a valid 22 collective bargaining agreement if the agreement expressly 23 provides for the wages, hours of work, and working conditions of 24 the employees, and if the agreement provides premium wage rates 25 for all overtime hours worked and a regular hourly rate of pay for 26 those employees of not less than [thirty] percent more than the 27 state minimum wage." Section 514 provides that the CBA exemption 28 is only available when overtime is paid for "all overtime hours worked." As the court in Gregory v. SCIE explained, whether 2 overtime is paid for "all overtime hours worked" is based on a 3 state right and requires an interpretation of state law, even 4 where the CBA provided for a premium wage rate. 317 F.3d 1050, 5 1053 (9th Cir. 2003). While the CBA here establishes a premium 6 rate over the state minimum, the right to overtime pay is a state 7 right, regardless of rate. 8

B. Accurate Wage Statements and Wages Owed at Termination

Plaintiff's fifth and sixth claims are for violations of California Labor Code sections 203, 226(a) and 1174, and IWC Wage 11 Order section 5-2002(7). Defendant argues that because a section 226 claim requires "knowing and intentional" failure to provide 13 accurate wage statements and a section 203 claim requires a 14 finding that a defendant willfully failed to conform to the 15 statute, a fact finder would have to interpret the CBA to 16 determine whether Defendant reasonably believed that it owed no 17 additional pay. This might require reference to the CBA, but it 18 does not require interpretation of the contract terms. "Although 19 the line between reference to and interpretation of an agreement 20 may be somewhat hazy, merely referring to an agreement does not 21 threaten the goal that prompted preemption--the desire for uniform 22 interpretation of labor contract terms." Ramirez v. Fox 23 Television Station, Inc., 998 F.2d 743, 749 (9th Cir. 1993). 24

C. Unfair Competition

Plaintiff alleges that Defendant engaged in unfair 26 competition in violation of California Business and Professions 27 Code sections 17200 et. seq. by underpaying wages, allowing it to 28 gain an unfair advantage over other comparable companies doing business in the state. Defendant argues in response that the 2 claim would require an interpretation of the CBA and even its 3 bargaining history, to determine whether it is fair "to schedule a 4 workday in a manner that causes some employees to work in two 5 different 'workdays' when they work a single shift" and whether 6 parties to the CBA gave fair value for those provisions. Opp. at 7 10. But the claim is about fairness to competitors, not fairness 8 to employees or the fairness of the bargaining process. An 9 allegation of unfair competition under California Business and 10 Professions Code section 17200 et. seq. involves examining the allegedly unfair practice's "impact on the alleged victim, balanced against the reasons, justifications, and motives of the 13 alleged wrongdoer," Motors, Inc. v. Times Mirror Co., 102 14 Cal.App.3d 735, 740 (1980), not the value of any purported 15 concessions in reaching the terms of the CBA. 16


For the foregoing reasons, Plaintiff's motion for remand is GRANTED. The Clerk shall remand the case to the Alameda County 19 Superior Court. 20 21




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