No. C 02-01157 CRB
May 1, 2002
MEMORANDUM AND ORDER
Defendant removed this case on the ground that plaintiff's California Fair Employment and Housing Act ("FEHA") claims are preempted by the LMRA. Now pending before the Court are the parties' responses to the Court's Order To Show Cause why this action should not be remanded for lack of jurisdiction. After carefully considering the papers filed by the parties, and having had the benefit of oral argument, this action is hereby REMANDED.
ALLEGATIONS OF THE COMPLAINT
Defendant hired plaintiff, an Asian, in April 1988 as a Meat Clerk. Ten years later defendant promoted plaintiff to Apprentice Meat Cutter. In February 1999, plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC") and the California Department of Fair Employment and Housing ("DFEH") alleging employment discrimination. After plaintiff filed the complaint, defendant required plaintiff to retake the apprentice program before he could be considered for promotion to the position of Journey Meat Cutter.
In August 2000, defendant gave two lesser qualified non-Asian employees the opportunity to take a test, prior to their completion of the apprentice program, so that they could be promoted early to the position of Journey Meat Cutter. Defendant did not provide plaintiff with the same opportunity to take the test. In addition, defendant's requirement that plaintiff retake the apprentice program had never been imposed on any other employee.
From approximately February 2001 through the present plaintiff has been subjected to unfair discipline and denied management training.
Plaintiff is a member of the local Meat Cutters Union. Defendant removed the complaint on the ground that plaintiff's claims are preempted by the Labor Management Relations Act ("LMRA") because resolution of his lawsuit will require interpretation of the governing collective bargaining agreement ("CBA"). The issue before the Court is whether any one of plaintiff's claims is preempted; if so, removal was proper. See 28 U.S.C. § 1441(b).
The LMRA, Section 301, establishes federal jurisdiction for "[s]uits for violation of contracts between an employer and a labor organization." 29 U.S.C. § 185(a). The LMRA therefore preempts any state cause of action for breach of a CBA. See Jimeno v. Mobil Oil Corp., 66 F.3d 1514, 1522 (9th Cir. 1995). "Even suits based on torts, rather than on breach of collective bargaining agreements, are governed by federal law if their evaluation is inextricably intertwined with consideration of the terms of [a] labor contract." Miller v. AT T Network Systems, 850 F.2d 543, 545 (9th Cir. 1988) (internal quotations omitted). "Of course, not every dispute involving provisions of a collective bargaining agreement is preempted by the LMRA. When the meaning of particular contract terms is not disputed, the fact that a collective bargaining agreement will have to be consulted for information will not result in § 301 preemption." Firestone v. Southern California Gas Co., 219 F.3d 1063, 1065 (9th Cir. 2000); see also Beals v. Kiewitt Pacific Co., Inc., 114 F.3d 892, 895 (9th Cir. 1997) (stating that a claim is not preempted if it merely requires reference to, as opposed to interpretation of, the provisions of a cba); Jimeno, 66 F.3d at 1522-23 (the "LMRA does not . . . preempt the application of a state law remedy when the `factual inquiry [under the state law] does not turn on the meaning of any provision of a collective bargaining agreement.'") (quoting Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 407 (1988)); Ramirez v. Fox Television Station, Inc., 998 F.2d 743, 749 (9th Cir. 1993) ("state-law causes of action are preempted if they are either based upon a collective-bargaining agreement or dependent upon an interpretation of the agreement.").
In Ramirez, 998 F.2d 743 (9th Cir. 1993), for example, the plaintiff brought a claim under the FEHA for national origin discrimination. Plaintiff alleged that only Hispanics like herself were required to submit jury-service verification forms. The Ninth Circuit held the claim was not preempted:
The Bargaining Agreement may be crystal clear — that all or no employees need such verification forms — but Fox nonetheless may have ignored the Bargaining Agreement in Ramirez's case or applied it to her in a discriminatory manner. Thus, reference to or consideration of the terms of a collective-bargaining agreement is not the equivalent of interpreting the meaning of the terms. If it were, all discrimination actions brought by unionized employees would be preempted because the starting point for every case would have to be the agreement. Although the line between reference to and interpretation of an agreement may be somewhat hazy, merely referring to an agreement does not threaten the goal that prompted preemption — the desire for uniform interpretation of labor contract terms.
Id. at 749.
A. The apprenticeship program claim
Plaintiff claims that he was required to retake the meat cutter apprentice program. In particular, he alleges that approximately six months after defendant employed plaintiff as an apprentice, defendant demoted plaintiff from apprentice to meat clerk based on what it claimed was an error in computing seniority. In 1999, when plaintiff was again accepted into the apprentice program, the program gave him credit for the time already spent in class, but defendant refused to consider plaintiff's hours logged in the calculation of his pay. Plaintiff claims this action was taken in retaliation for his previous discrimination complaint and that defendant had not imposed a similar condition upon any other employee.
Defendant contends that Article IX (Apprentices) and Article VIII (Wages) of the CBA specifically govern this claim. Nothing in these Articles, however, governs credit for time previously spent in an apprenticeship program. Plaintiff is not challenging defendant's demotion of plaintiff, merely the decision not to credit his previous time spent as an apprentice even though the program gave him credit. In other words, plaintiff was paid at a lower rate than other apprentices who had been in the program for the same number of hours. This claim does not require interpretation of the CBA; rather, it involves a factual dispute over the reason defendant did not give plaintiff credit.
At oral argument defendant insisted that the court will be required to interpret the wage rates set forth in Article VIII. Article VIII provides a certain wage rate based on the number of months worked as an apprentice meat cutter: a different wage for the first six months, second six months, third six months, and fourth six months. Defendant's defense will apparently be that Article VIII did not require defendant to give plaintiff credit for the time previously worked as an apprentice; thus, argues defendant, the Court will be required to interpret whether Article VIII requires defendant to give plaintiff credit.
While "the line between reference to and interpretation of an agreement may be somewhat hazy," Ramirez, 998 F.2d at 749, the Court is unpersuaded that plaintiff's claim is preempted. Article VIII is silent as to how an employee's interrupted service as an apprentice should be credited for wage purposes.
There is simply nothing there for the Court to interpret. Defendant argues that its position — it does not have to give credit for the time previously served — is implied in Article VIII and therefore a factfinder will have to interpret the agreement to evaluate defendant's defense. If defendant were correct, however, nearly every claim by a union member would be preempted since a defendant could always argue that its position is justified by an implied term of the cba. See id.
Moreover, plaintiff does not rely on the cba to support his claim that defendant should have credited his previous time as an apprentice for the purpose of pay. Instead, plaintiff claims that defendant imposed a condition upon plaintiff that it had never before imposed on any other employee in retaliation for his protected activity; in other words, even if the cba does not require defendant to give credit for previous time served, defendant applied the cba differently to plaintiff. Thus, as in Ramirez, plaintiff's claim of right is separate and independent of the cba.
Defendant's citation to Firestone v. Southern California Gas Co., 219 F.3d 1063 (9th Cir. 2000), is unpersuasive. In Firestone, plaintiffs alleged that defendant violated California wage and hour laws for overtime. California law also provided that its overtime laws shall not apply to any employee covered by a cba if the cba provides "premium" wage rates for overtime work. Id. at 1065. The Ninth Circuit held that the state law overtime claim was preempted because the cba must be interpreted to determine if it "provides for premium wage rates for overtime work and, therefore, whether California's overtime exemption provision applies." Id. at 1067.
Here, in contrast, the cba does not need to be interpreted to determine if the FEHA applies. Nor does it need to be interpreted to determine if defendant refused to credit plaintiff for his previous service as an apprentice in retaliation for his discrimination complaint. The factual issue to be resolved is whether, regardless of what the cba provides, defendant imposed a condition upon plaintiff that it has not imposed upon other employees, namely, refusing to provide any credit for previous service as an apprentice.
Accordingly, plaintiff's apprentice claim is not preempted.
Audette v. Int'l Longshoremen's, 195 F.3d 1107 (9th Cir. 1999), is similarly distinguishable. In Audette, plaintiff union employees alleged a breach of a settlement agreement by their union and employer was done in retaliation and based on gender discrimination. The court held these discrimination/retaliation claims were preempted because determining whether the settlement agreement was breached in the first instance would require the interpretation of the cba. Id. at 1112, 1111. In particular, the settlement agreement provided that the defendants did not need to perform certain terms of the agreement if they had legitimate, business justification for why performance should not take place. Certain provisions of the cba provided defendants' justifications. Id. at 1111. Thus an issue dispositive to plaintiffs' discrimination claim — whether the settlement agreement had been breached — could not be resolved without an interpretation of the cba; the settlement agreement and cba were inextricably intertwined.
Plaintiff's claim that defendant unlawfully refused to credit his previous apprentice service is not so intertwined with the CBA. The issue is whether defendant required plaintiff to repeat the apprentice program although it did not require other employees to do the same, regardless of the terms of the CBA.
B. The promotion claim
The parties agree that an apprentice meat cutter cannot be promoted to a journey meat cutter until the apprentice passes a test. Plaintiff contends that defendant gave two lesser-qualified Caucasians the opportunity to take the test before they completed the apprentice program, but they did not give plaintiff the same opportunity to take the same test.
Defendant again responds that it will argue it followed the provisions of the cba governing the apprenticeship program. Moreover, it contends that plaintiff will have to prove that he was eligible to take the test and that defendant could have prevented him from taking the test, issues governed by the CBA.
Again, the Court is unpersuaded. Plaintiff's claim is that defendant allowed two employees to go outside the terms of the apprentice program and take the test early so that they could be considered for promotion early, whereas plaintiff was not given the same opportunity. Plaintiff does not have to prove he was eligible for the test under the CBA, only that he was similarly situated to the other two employees and not give the same opportunity, regardless of whether he or those employees were eligible under the CBA.
As in Ramirez, the question is whether defendant applied the terms of the CBA to plaintiff in a discriminatory manner; if it applied those terms differently to non-Asian employees than to plaintiff that is discrimination, regardless of the actual terms of the CBA. See Martinez v. Lucky Stores, Inc., 1998 WL 646662 (N.D.Cal. 1998) (holding that Lucky meat clerk's FEHA claim alleging that she was not promoted for discriminatory reasons was not preempted by the LMRA).
C. Denial of management training
Plaintiff also contends that defendant denied him management training. Defendant has not identified any provision of the CBA that must be interpreted to resolve this claim.
D. Unfair discipline
Plaintiff alleges generally that he was unfairly disciplined. Defendant contends this claim is governed by Article II(E) — Discharge. Article II(E) addresses demotion, suspension, and discharge. Plaintiff does not allege any such discipline. In any event, even assuming he was contesting such discipline, his claim is that defendant discriminated against him in its discipline decisions, that is, that it disciplined him for conduct that it did not discipline others. Such a claim does not require interpretation of the CBA, but rather resolution of the factual issues of what conduct plaintiff engaged in, whether other employees had engaged in the same conduct and not been disciplined, and the reason for defendant's disparate treatment of plaintiff.
For the foregoing reasons, the Court concludes that defendant has not met is burden of proving that the Court has jurisdiction of the removed complaint. Accordingly, this action is hereby REMANDED.
IT IS SO ORDERED.