Opinion
Civ. A. No. 2:89-0859.
November 15, 1989
James F. Wallington, Charleston, W.Va., for plaintiff.
Ricklin Brown, Bowles, Rice, McDavid, Graff Love, Charleston, W.Va., for defendant.
MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff's motion to remand. The parties have submitted memoranda in support of their respective positions, and the matter is mature for the Court's consideration.
Plaintiff filed this action in the Circuit Court of Kanawha County, West Virginia, alleging violations by Defendant of the West Virginia Labor Management Relations Act for the private sector (WVLMRA). W.Va. Code, § 21-1A-1, et seq. On July 1, 1989, the Defendant filed a timely notice of removal, asserting that the allegations of the complaint arise under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, thus providing federal court jurisdiction. Plaintiff moved to remand contending that the complaint raises only matters of West Virginia law.
In support of the motion Plaintiff states that the complaint alleges only violation of the WVLMRA, and does not allege a breach of the collective bargaining agreement. Plaintiff claims since the National Labor Relations Board has declined jurisdiction in proceedings under Sections 8, 9 and 10 of the National Labor Relations Act of 1957 involving horse racing and dog racing industries, that this Court is without subject matter jurisdiction to determine whether statutory unfair labor practices have been committed in such industries. Retail, Wholesale and Department Store Union, AFL-CIO Local 310 v. National Labor Relations Board, 745 F.2d 358 (6th Cir. 1984). Plaintiff claims, in the absence of a state administrative agency to enforce the WVLMRA that the state circuit court has jurisdiction under the West Virginia Uniform Declaratory Judgments Act, W.Va. Code, § 55-13-1, et seq., to protect statutory rights of employees under the WVLMRA. United Steelworkers of America, AFL-CIO, CLC v. Tri-State Greyhound Park, 364 S.E.2d 257 (W.Va. 1987). Plaintiff further argues that her WVLMRA action does not require an interpretation of the collective bargaining agreement. Lingle v. Norge Division of Magic Chef Inc. 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988).
The nondiverse citizenship of the parties is established by the pleadings.
Defendant argues in opposition that Plaintiff's state law claims are preempted by Section 301 because resolution of Plaintiff's claims requires interpretation of the labor contract. Defendant argues alternatively, and perhaps more urgently, for the Court to address the merits of Plaintiff's purported state law claims under the method approved in Washington v. Union Carbide Corp., 870 F.2d 957 (4th Cir. 1989) and Childers v. Chesapeake and Potomac Telephone Co., 881 F.2d 1259 (4th Cir. 1989).
In Childers the court provided additional guidance as to when the Washington v. Union Carbide analysis is to be applied and limited the circumstances as follows:
"Discretion of district courts to dismiss state claims is limited to those whose lack of merit is apparent. Where the plaintiff appears to state a claim under state law, a federal district court would be well advised to proceed to the § 301 preemption inquiry and, if the state claim is not preempted, to remand the entire action to state court. Where the complaint, however, plainly fails to state a cause of action under state law, it is open to the federal court to dismiss it."Id. at 1262.
The Court concludes after review of Plaintiff's complaint and the parties' respective memoranda, that Plaintiff's claim under the WVLMRA is not patently without merit so as to warrant dismissal in this forum. Accordingly, the Court declines Defendant's invitation to address the merits of Plaintiff's claim under Washington v. Union Carbide and Childers.
The Court further concludes that Plaintiff's state law claims alleging violations of the WVLMRA can be resolved without interpreting the collective bargaining agreement. Accordingly the Court concludes that Plaintiff's claim is "independent" of the agreement for Section 301 preemption purposes. Lingle, supra. Plaintiff's motion is granted and pursuant to 28 U.S.C. § 1447(c), this action is remanded to the Circuit Court of Kanawha County, West Virginia, for further proceedings.
The Clerk is directed to send a certified copy of this Order to counsel of record and to the Circuit Clerk of Kanawha County, West Virginia.