United States District Court, E.D. California
ORDER DENYING DEFENDANTS' MOTION TO DISMISS AND
REMANDING MATTER TO THE STANISLAUS COUNTY SUPERIOR COURT FOR
LACK OF SUBJECT MATTER JURISDICTION (DOC. NOS. 8 AND
January 15, 2016, plaintiff Keith Williams filed the instant
action in the Stanislaus County Superior Court, alleging a
single cause of action for wrongful termination in violation
of public policy. (Doc. No. 3-1, at 4-8.) Plaintiff alleges
that his right to privacy under Article 1, Section 1 of the
California Constitution was violated when defendants
terminated his employment on their night stocking crew after
he failed a random drug test. (Id. at 6-7.) On April
11, 2016, defendants removed the action to federal court on
the basis of federal question jurisdiction pursuant to §
301 of the Labor Management Relations Act ("LMRA"),
29 U.S.C. § 185. (Doc. Nos. 1 and 2.) On April 18, 2016,
defendants moved to dismiss the complaint under Federal Rule
of Civil Procedure ("Rule") 12(b)(6) on the grounds
that plaintiff's claim is completely preempted by §
301 of the LMRA, and that he failed to exhaust his claim
pursuant to the procedures of the LMRA. (Doc. No. 8-1, at 2.)
Plaintiff argues that his claim is not preempted because a
state law claim is only preempted by § 301 when its
resolution requires the interpretation of, as opposed to
merely a reference to, a collective bargaining agreement.
(Doc. No. 11, at 6-7) (citing Cramer v. Consol.
Freightways, Inc., 255 F.3d 683, 690 (9th Cir. 2001) and
Lingle v. Norge, 486 U.S. 399 (1988)).
17, 2016, defendant's motion to dismiss came on for
hearing before the court.Attorney Kristina Launey appeared
telephonically on behalf of defendants and attorney Jeremy
Pasternak appeared telephonically on behalf of plaintiff.
Having considered the arguments of the parties and for the
reasons set forth below, defendants' motion to dismiss
will be denied and the action remanded back to Stanislaus
County Superior Court due to lack of subject matter
Judicial Notice of Collective Bargaining Agreements
request that the court take judicial notice of two collective
bargaining agreements ("CBA") - WinCo Foods #21
Hourly Employee Working Conditions and Wages Agreements -
which were in effect during plaintiff's employment with
WinCo. (Doc. No. 9.) The court "may take judicial notice
of a CBA in evaluating a motion to dismiss . . . [as] such
documents properly are considered . . . materials ‘not
subject to reasonable dispute' because they are
‘capable of accurate and ready determination by resort
to sources whose accuracy cannot reasonably be
questioned.'" Jones v. AT & T, No. C
07-3888 JF, 2008 WL 902292, *2 (N.D. Cal. Mar. 31, 2008).
See also Densmore v. Mission Linen Supply, 2016 WL
696503, at *4 (E.D. Cal. Feb. 22, 2016) (taking judicial
notice of CBAs where necessary to resolve issues of
preemption). Therefore, the court will take judicial notice
of the two CBAs.
Preemption under Section 301 of the LMRA
301 of the LMRA, codified at 29 U.S.C. § 185(a), states
in relevant part:
Suits for violation of contracts between an employer and a
labor organization representing employees in an industry
affecting commerce . . . may be brought in any district court
of the United States having jurisdiction of the parties . . .
Supreme Court has recognized that the LMRA "does more
than confer jurisdiction in the federal courts over labor
organizations. It expresses a federal policy that federal
courts should enforce these agreements on behalf of or
against labor organizations and that industrial peace can be
best obtained only in that way." Textile Workers
Union of Am. v. Lincoln Mills of Ala., 353 U.S. 448,
456-57 (1957). See also Local 174, Teamsters of Am. v.
Lucas Flour Co., 369 U.S. 95, 103-04 (1962) ("The
dimensions of § 301 require the conclusion that
substantive principles of federal labor law must be paramount
in the area covered by the statute."). As a result,
because "[a]n action arising under § 301 is
controlled by federal substantive law even though it is
brought in state court, " the Supreme Court has deemed
it proper for such cases to be removed to federal court under
federal question jurisdiction. Avco Corp. v. Aero Lodge
No. 375, Int'l. Ass'n of Machinists & Aerospace
Workers, 390 U.S. 557, 560 (1968).
301 preemption subsequently expanded "beyond cases
specifically alleging contract violation to those whose
resolution is ‘substantially dependent upon analysis of
the terms of an agreement made between the parties in a labor
contract.'" Cramer, 255 F.3d at 689 (citing
Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985)).
"The preemptive force of § 301 is so powerful as to
displace entirely any state cause of action ‘for
violation of contracts between an employer and a labor
organization.'" Franchise Tax Bd. v. Constr.
Laborers Vacation Trust, 463 U.S. 1, 23 (1983).
"Any such suit is purely a creature of federal law,
notwithstanding the fact that state law would provide a cause
of action in the absence of § 301." Id.
"not every dispute concerning employment, or
tangentially involving a provision of a [CBA], is preempted
by § 301 or other provisions of the federal labor
law." Allis-Chalmers, 471 U.S. at 211. In
Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987),
the Supreme Court clarified that § 301 preemption
applies only to "claims founded directly on rights
created by collective-bargaining agreements, and claims
‘substantially dependent on analysis of a
collective-bargaining agreement.'" Id. at
394 (quoting Franchise Tax Bd., 463 U.S. at 23). In
that case the Supreme Court also explicitly rejected the
argument that "all employment-related matters involving
unionized employees be resolved through collective bargaining
and thus be governed by a federal common law created by
§ 301." Id. at 396, n.10 (internal
Burnside v. Kiewit Pacific Corp., 491 F.3d 1053,
1060 (9th Cir. 2007), the Ninth Circuit set forth a two-part
analysis for determining whether a plaintiff's claim is
preempted by § 301. First, a court must "determine
whether a particular right inheres in state law or, is
instead grounded in a CBA." Id. "If the
right exists solely as a result of the CBA, then the claim is
preempted, and [ ] analysis ends there."
Burnside, 491 F.3d at 1059. However, if the claim
exists independently from the CBA, the court must still
decide whether it is "‘substantially
dependent' on the terms of a CBA" by determining
"whether the claim can be resolved by ‘looking
to' versus interpreting the CBA." Id. at
1060 (citing Caterpillar, 482 U.S. at 394 and
Livadas v. Bradshaw, 512 U.S. 107, 125 (1994)). If
the claim requires interpretation of the CBA, the claim is
preempted; if the claim merely requires "looking
to" the CBA, it is not preempted. Id.
first step of the Burnside analysis described above
requires the court to "consider the legal character of a
claim, as ‘independent' of rights under the
collective-bargaining agreement [and] not whether a grievance
arising from ‘precisely the same set of facts'
could be pursued." Id. at 1059-60 (quoting
Livadas, 512 U.S. at 123). The second step of the
analysis requires the court to determine whether the claimed
rights are "substantially dependent" on the
analysis of the CBA. The court in Burnside clarified
that a defense relying on the terms in a CBA is "not
enough to ‘inject[ ] a federal question into an action
that asserts what is plainly a state-law claim.'"
Id. at 1053 (quoting Caterpillar, 482 U.S.
at 398-99). See also Humble v. Boeing Co.,
305 F.3d 1004, 1011 (9th Cir. 2002) ("reliance on CBA
provisions to defend against an independent state law claim
does not trigger § 301 preemption."). The
distinction" in the second step of the analysis has been
recognized as "not a task that always lends itself to
analytical precision." Id. at 1060. See
also Cramer, 255 F.3d at 691. Of course, "when the
meaning of the contract terms is not the subject of dispute,
the bare fact that a collective-bargaining agreement will be
consulted in the course of state-law litigation plainly does
not require that" the state law claim is preempted.
Livadas, 512 U.S. at 124. See also Valles v. Ivy
Hill Corp., 410 F.3d 1071, 1076 (9th Cir. 2005);
Ward v. Circus Circus Casinos, Inc., 473 F.3d 994,
998 (9th Cir. 2007); Aguilera v. Pirelli Armstrong Tire
Corp., 223 F.3d 1010, 1014 (9th Cir. 2000). Moreover,
"‘[§] 301 does not permit parties to waive,
in a collective-bargaining agreement, nonnegotiable state
rights' conferred on individual employees."
Valles, 410 F.3d at 1076 (quoting Balcorta v.
Twentieth Century-Fox Film Corp., 208 F.3d 1102, 1111
(9th Cir. 2000)). "Thus, in order for complete
preemption to apply, ‘the need to interpret the CBA
must inhere in the nature of the plaintiff's claim. If
the claim is plainly based on state law, § 301
preemption is not mandated simply because the defendant
refers to the CBA in mounting a defense.'"
Id. (quoting Cramer, 255 F.3d at 691).
See also Ward, 473 F.3d at 998 (the
"determinative question is whether the state law factual
inquiry . . . turn[s] on the meaning of any provision of the
Ninth Circuit's decision in Cramer is
instructive. There, the court addressed the appropriate
considerations in determining if a state law claim required
the court to "interprets" or merely "refer
to" a CBA in a case presenting the issue of whether a
plaintiff's state law claims for invasion of privacy and
intentional infliction of emotional distress were preempted
under § 301. 255 F.3d at 688. The court held that the
CBA at issue in that case could not have "contemplate[d]
the surreptitious videotaping plaintiffs challenge[d] in
their state law claims . . . [because] § 301 does not
grant the parties . . . the ability to contract for what is
illegal under state law." Id. at 694-95. In
reviewing the Supreme Court's decisions in
Allis-Chalmers, Lingle, and
Livada, the court found that preemption under §
301 was not appropriate where "the legal character of a
claim [is] ‘independent' of rights under the
collective bargaining agreement . . . [and] the bare fact
that a collective bargaining agreement will be
consulted" does not extinguish the claim. Id.
at 690-91. Thus, the court concluded where a claim involves
the "employer's alleged failure to comport with its
contractually established duties, " it is preempted.
Id. However, "if the claim may be litigated
without reference to rights and duties established" in a
collective bargaining agreement, it is not preempted.
Id. The court noted that "the plaintiff's
claim is the touchstone for this analysis . . . [and] the
need to interpret the CBA ...