The opinion of the court was delivered by: Dean D. Pregerson United States District Judge
ORDER DENYING DEFENDANT'S MOTION TO DISMISS AND GRANTING PLAINTIFF'S REQUEST TO REMAND [docket number 7]
Presently before the court is Defendant Hollywood Park Racing Association LLC's Motion to Dismiss ("Motion"). Having reviewed the parties' moving papers, the court denies Defendant's Motion, grants Plaintiff's request to remand the matter to state court, and adopts the following Order.
Plaintiff Derrick Williams originally filed this action against Defendant Hollywood Park Racing Association LLC in California state court. Plaintiff's Complaint alleges state law claims for retaliation, wrongful termination, and intentional infliction of emotion distress ("IIED"). Defendant removed the action to federal court on February 10, 2012, and filed this Motion to Dismiss on February 17, 2012. In its Motion, Defendant argues that Plaintiff's claims are preempted by: 1) National Labor Relations Act ("NLRA") sections 7 and 8(a)(1), 29 U.S.C. §§ 157 & 158(a)(1); and 2) Labor-Management Relations Act ("LMRA") section 301, 29 U.S.C. § 185. In response, Plaintiff contends that his state law claims are not preempted, and asks the court to remand this action to California state court.
As Defendant explains, an action based on conduct "arguably subject" to NLRA sections 7 or 8(a)(1) is "both preempted and falls within the exclusive jurisdiction of the [National Labor Relations Board]." Ethridge v. Harbor House Rest., 861 F.2d 1389, 1397 (9th Cir. 1988). This NLRA preemption is commonly known as Garmon preemption, referring to the seminal Supreme Court decision. See San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236 (1959). Defendant fails to note, however, the Ninth Circuit's express holding that "state law actions claimed to be preempted by sections 7 and 8 of the NLRA are not removable to federal court." Ethridge, 861 F.2d at 1400. Rather, because federal courts lack original jurisdiction over such actions, the "question of Garmon-preemption must be decided in the first instance by the state courts." Id. at 1405. Accordingly, the court lacks jurisdiction to decide the alleged Garmon preemption of Plaintiff's state law claims.*fn1
Defendant also argues that LMRA section 301 preempts Plaintiff's state law claims. Unlike with Garmon preemption, "actions under section 301 of the LMRA are removable to federal district courts." Ethridge, 861 F.2d at 1397. LMRA section 301 "preempts claims founded directly on rights created by collective bargaining agreements, and also claims which are substantially dependent on analysis of a collective bargaining agreement." Paige v. Henry J. Kaiser Co., 826 F.2d 857, 861 (9th Cir. 1987) (citing Caterpillar, Inc. v. Williams, 482 U.S. 386, 394 (1987)). Section 301 does not, however, preempt state law rights that exist independent of a labor contract. See Paige, 826 F.2d at 863.
Here, Plaintiff alleges that Defendant unlawfully retaliated against him for reporting to management certain "work-related circumstances that Plaintiff felt were wrong and probably illegal." (Compl. at 2.) Specifically, Plaintiff claims that he reported Defendant's: 1) issuing of arbitrary cash fines to certain immigrant employees; 2) provision of inadequate security at events, resulting in serious violence; and 3) failure to provide required uniforms. Plaintiff claims that Defendant then retaliated against him through various adverse employment actions, including pay decreases, shift changes, and Plaintiff's ultimate termination. (Id. at 2-6.) Plaintiff therefore filed a complaint with the California Department of Fair Employment and Housing ("DFEH"), stating that Defendant terminated him in retaliation for "speaking with fellow employees regarding safety concerns and what [he] believe[d] was illegal activity, then video taping an unsafe incident." (Id. ¶ 25 & Ex. 1.)
The legal basis for each of Plaintiff's claims is not entirely clear. For his "first cause of action for retaliation," Plaintiff cites to Yanowitz v. L'Oreal USA, Inc., 36 Cal. 4th 1028 (2006), and California's Fair Employment and Housing Act ("FEHA"), Cal. Gov. Code § 12940(h). (Compl. ¶¶ 9-10.) For his wrongful termination cause of action, Plaintiff contends that his "termination was pretext in violation of public policy," FEHA, and "the implied or express covenant of continued employment." (Id. ¶ 26.) Plaintiff further states that he "was in the protected class of persons who engaged in protected activities, contemplated by [FEHA]," and "was harassed for reporting and complaining against wrongful conduct." (Id. ¶ 18.) Last, for his IIED cause of action, Plaintiff claims generally that Defendant's conduct caused him "severe emotional distress." (Id. ¶ 33.)
Despite some lack of clarity, the court finds that Plaintiff's Complaint asserts genuine claims for retaliation, wrongful termination, and IIED, based on state law rights that exist independent of any collective bargaining agreement. Reading the alleged facts as a whole, Plaintiff claims that he was retaliated against for reporting unsafe working conditions and potentially illegal conduct, including serious violence due to inadequate security and possible discrimination against immigrant workers. California law provides nonnegotiable protections against such retaliation, and courts have therefore found similar claims not preempted by federal labor law. See Paige, 862 F.3d at 863 ("[T]he tort of wrongful discharge in violation of public policy exists independent of any contractual right."); Emrick v. Fujitec Am., Inc., No. C-04-04514, 2005 WL 162235, at *4 (N.D. Cal. Jan. 24, 2005) ("Plaintiff's wrongful termination claim rests upon California Government Code section 12960 and California Labor section 1102.5 which prohibit harassment and retaliation against an employee for reporting serious health and safety violations. . . . Accordingly, Plaintiff's claim for wrongful termination in violation of public policy is not preempted.").
Nor does LMRA section 301 preempt IIED claims where the collective bargaining agreement "is silent on work conditions, and vague on disciplinary formalities," such that "examination or interpretation of the agreement would not help to resolve [the IIED] claim." Tellez v. Pac. Gas & Elec. Co., 817 F.2d 536, 539 (9th Cir. 1987). Here, with regard to the relevant issue of workplace safety, the apparent bargaining agreement states only that: 1) a "Safety Committee . . . shall meet once a month for purpose of reviewing general safety conditions and making recommendations"; and 2) Defendant will provide "personal safety devices" as necessary for employee safety, and "continue its practice and policy of providing a safe place of employment." (Notice of Removal, Attach. D at 18-19.) Resolving Plaintiff's IIED claim will not require any examination or interpretation of the four sentences addressing workplace safety. Plaintiff's IIED claim is therefore not preempted by LMRA section 301.
In arguing that Plaintiff's claims are preempted, Defendant makes much of Plaintiff's brief reference to uniforms not provided "in-spite of [the] union contract." (Compl. at 3.) As discussed above, the court finds that Plaintiff's claims focus primarily on state law rights to workplace safety and nondiscrimination, not any contractual right to uniforms. Further, Plaintiff clarifies in his Complaint that the uniform issue involves Defendant's demand that he "'come into compliance' with uniform dress code" at his own expense, including "time, money, and gas." (Id. at 4.) Thus, the uniform allegations may involve independently existing state law rights to reimbursement, provided by California Labor Code section 2802. See Lara v. San Bernardino Steel Inc., No. CV11-1357, 2011 WL 4480167, ...