Sergio Padilla v. Communications Workers of America, ALF-CIO, CLC Local 9003 et al

Filing 18

ORDER REMANDING TO STATE COURT by Judge Dean D. Pregerson: The Court finds that it lacks jurisdiction to hear this case. The case is REMANDED to state court 12 . The pending motion to dismiss 7 is VACATED as moot. ( MD JS-6. Case Terminated ). cc: order, docket, remand letter to Los Angeles Superior Court, case no. BC 558647. (lc) Modified on 2/19/2015 (lc).

1
2

O

3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11

SERGIO PADILLA,

12

Plaintiff,

13
14
15
16

v.
PACIFIC BELL TELEPHONE
COMPANY; AT&T CALIFORNIA;
AT&T CORP.; AT&T
COMMUNICATIONS WORKERS OF
AMERICA AFL-CIO, CLC LOCAL
9003,

17
18

Defendants.
___________________________

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. CV 14-09760 DDP (JPRx)
ORDER REMANDING TO STATE COURT
Dkt. Nos. 7, 12

19
20

Presently before the Court is Plaintiff’s motion to remand

21

this case to state court under 28 U.S.C. 1447.

22

Having considered the parties’ submissions, the Court adopts the

23

following order.

24

I.

25

(Dkt. No. 12.)

BACKGROUND
Plaintiff worked as “Premises Technician” for Pacific Bell

26

(“Bell”) from some unknown time until 2012.

27

Decl. Sheila Bordeaux ¶¶ 3, 6.)

28

suffered a back injury, resulting in a physical disability.

(Compl. ¶¶ 17, 23;

In September 2011, Plaintiff

1

(Compl. ¶ 18; Bordeaux Decl. at ¶ 4.)

Plaintiff alleges that he

2

requested an accommodation from Bell in the form of a transfer to

3

some job he could perform in his injured condition, but was

4

refused, although “suitable jobs were available.”

5

Plaintiff alleges that Bell did not accommodate him or engage in a

6

“good faith interactive process”; eventually, he alleges, his

7

supervisor told him to lie to his doctor to have his medical

8

restrictions removed.

9

refused to do so, after which Bell retaliated against him by

(Id. at ¶ 20-21.)

(Compl. ¶ 19.)

Plaintiff alleges that he

10

refusing to help him find a suitable alternative job and then

11

firing him in October 2012.

12

that his union, Communications Workers of America, Local 9003 (“the

13

Union”), “aided and abetted” Bell’s retaliatory behavior.

14

¶ 25.)

15

(Id. at ¶ 23.)

Plaintiff also alleges

(Id. at

On October 23, 2014, Plaintiff brought a complaint against

16

Defendants in California state court, alleging violations of

17

California’s fair employment laws, especially the Fair Employment

18

and Housing Act (“FEHA”).

19

makes no claims under federal law.

20

the Union removed to this federal district court.

21

(Id. generally.)

On December 22, 2014,
(Dkt. No. 1.)

Plaintiff moves to remand to state court on the ground that

22

there is no federal jurisdiction.

23

II.

24

(Id.)

Plaintiff’s complaint

(Dkt. No. 12.)

LEGAL STANDARD
A defendant may remove a case from state court to federal

25

court if the case could have originally been filed in federal

26

court. 28 U.S.C. § 1441(a); see also Snow v. Ford Motor Co., 561

27

F.2d 787, 789 (9th Cir. 1977).

28

bears the burden of proving federal jurisdiction. Duncan v.

As the removing party, Defendant

2

1

Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996); see also Matheson v.

2

Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir.

3

2003).

4

jurisdiction, and federal jurisdiction must be rejected if any

5

doubt exists as to the propriety of removal.

6

980 F.2d 564, 566 (9th Cir. 1992) (explaining that courts resolve

7

doubts as to removability in favor of remand).

8

III. DISCUSSION

9

A.

The removal statute is strictly construed against removal

Gaus v. Miles, Inc.,

Federal Labor Law and Preemption of State Law Claims

10

Ordinarily, this Court does not have jurisdiction to hear

11

cases grounded purely in state law, unless the parties are diverse.

12

28 U.S.C. 1331-32.

13

“only when a federal question is presented on the face of the

14

plaintiff's properly pleaded complaint.”

15

Williams, 482 U.S. 386, 392 (1987).

16

the master of her complaint and may choose whether to subject

17

herself to federal question jurisdiction by careful selection of

18

claims.

19

as defenses to the complaint, federal question jurisdiction does

20

not exist.

21

Id.

“Federal question” jurisdiction normally arises

Caterpillar Inc. v.

In essence, the plaintiff is

Additionally, if questions of federal law arise only

Id. at 392-93.

There is, however, an exception to this “well-pleaded

22

complaint” rule. “On occasion . . . the pre-emptive force of a

23

statute is so extraordinary that it converts an ordinary state

24

common-law complaint into one stating a federal claim for purposes

25

of the well-pleaded complaint rule.”

26

quotation marks omitted).

27

applied primarily in employment cases involving union member

Id. at 393 (internal

This “complete preemption” rule is

28
3

1

employees, because such cases can implicate § 301 of the Labor

2

Management Relations Act (“LMRA”).

That section provides that:

3

Suits for violation of contracts between an employer and a

4

labor organization representing employees in an industry

5

affecting commerce as defined in this chapter, or between any

6

such labor organizations, may be brought in any district court

7

of the United States having jurisdiction of the parties,

8

without respect of the amount in controversy or without regard

9

to the citizenship of the parties.

10

29 U.S.C. § 185(a).

11

Suits asserting violations of a collective bargaining

12

agreement (“CBA”) between a union and an employer are therefore

13

preempted by § 301 and provide federal question jurisdiction.

14

such suit is purely a creature of federal law, notwithstanding the

15

fact that state law would provide a cause of action in the absence

16

of § 301.”

17

Vacation Trust for S. California, 463 U.S. 1, 23 (1983).

“Any

Franchise Tax Bd. of State of Cal. v. Constr. Laborers

18

Where the plaintiff in an employment action is a union member,

19

employed pursuant to a CBA, but does not base a claim directly on a

20

violation of the CBA, the preemption question is more nuanced.

21

Claims involving interpretation of a CBA are also considered

22

federal law claims, because “the policies that animate § 301"

23

require a uniform federal interpretation of union contracts.

24

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 210-11 (1985).

25

Nonetheless, “not every dispute concerning employment, or

26

tangentially involving a provision of a collective-bargaining

27

agreement, is pre-empted by § 301.”

28

preempt claims rooted in “nonnegotiable state-law rights” that are
4

Id. at 211.

The LMRA does not

1

not “inextricably intertwined” with the interpretation of the terms

2

of a labor contract.

3
4

Id. 213.

These principles have been distilled by the Ninth Circuit into
a three-prong test:

5

In deciding whether a state law is preempted under section 301

6

. . . a court must consider: (1) whether the CBA contains

7

provisions that govern the actions giving rise to a state

8

claim, and if so, (2) whether the state has articulated a

9

standard sufficiently clear that the state claim can be

10

evaluated without considering the overlapping provisions of

11

the CBA, and (3) whether the state has shown an intent not to

12

allow its prohibition to be altered or removed by private

13

contract. A state law will be preempted only if the answer to

14

the first question is “yes,” and the answer to either the

15

second or third is “no.”

16

Miller v. AT & T Network Sys., 850 F.2d 543, 548 (9th Cir. 1988).

17

B.

18

Section 301 Preemption of Plaintiff’s Claims Against Union
None of Plaintiff’s claims are breach of contract claims.

19

Rather, they are allegations of disability discrimination,

20

harassment, and retaliation, actionable under FEHA and other state

21

laws.

22

are preempted by § 301, because “[as] Plaintiff’s bargaining

23

representative, any alleged action taken or alleged failure by the

24

Union reasonably requires analysis of the CBA.”

25

(emphasis added).)

26

saying that any lawsuit involving a union and an employer that have

27

entered into a CBA would necessarily be removable to federal court.

28

If that were true, the Miller test would be beside the point.

Nonetheless, the Union contends that these claims, as to it,

(Opp’n at 6:21-22

That cannot be correct – that is equivalent to

5

1

The Union also argues, more appropriately, that “the substance

2

of Plaintiff’s state law claims center around whether he was

3

improperly denied an alternative job position in light of his

4

rights under the CBA.”

5

however, points to no provision in the CBA requiring Bell to

6

provide alternative work for disabled workers – nor, after diligent

7

search, can the Court find any such provision.

8
9

(Id. at 6:26-28.)

The Union’s Opposition,

Two provisions of the CBA do touch on the subject matter of
the FEHA claims in a limited sense.

Section 2.04(B)(1)(a) of the

10

CBA provides that certain employees, such as those returning from

11

the military or a leave of absence, will have priority when Bell

12

seeks to fill a job vacancy.

13

employees” are included in that list.

14

And Memorandum of Agreement 86-37 governs the salary of medically

15

restricted employees who are moved to different job positions.

16

Neither provision requires the employer to attempt to accommodate a

17

disabled employee, nor to engage in a good-faith interactive

18

process with the employee, as FEHA does.

“[Q]ualified medically restricted
(Dkt. No. 1-18 at 000018.)

19

But even assuming that those provisions satisfy the first

20

prong of the Miller test1 – that is, assuming they actually “govern

21

the actions giving rise to [the] state claim,” 850 F.2d at 548 –

22

the Union has not shown that the second and third prongs are

23

satisfied.

24

established statute whose provisions apply with equal force whether

Nor, likely, could it.

FEHA is a clear and well-

25
1

26
27
28

The Court finds even this assumption unlikely. “Causes of
action that only tangentially involve a provision of a
collective-bargaining agreement are not preempted by section 301.”
Detabali v. St. Luke's Hosp., 482 F.3d 1199, 1203 (9th Cir. 2007)
(quoting Ramirez v. Fox Television Station, Inc., 998 F.2d 743, 748
(9th Cir. 1993)) (internal quotation marks and brackets omitted).
6

1

there is a collective bargaining arrangement or not, and the Ninth

2

Circuit has repeatedly held that its provisions are not subject to

3

being contracted away.2

4

Longshoremen's & Warehousemen's Union, in which the Ninth Circuit

5

held that workers’ claims of sex discrimination and retaliation

6

were preempted by LMRA.

7

Audette is distinguishable, both because it applies Washington

8

rather than California law, id., and because the discrimination

9

alleged in that case was in the context of enforcing a settlement

The Union relies on Audette v. Int'l

195 F.3d 1107, 1113 (9th Cir. 1999).

But

10

agreement that relied on an underlying CBA to define its terms and

11

provide for enforcement.

12

not upset the long line of Ninth Circuit cases concluding that FEHA

13

claims are freestanding under state law and not preempted by LMRA.

14

Id. at 1112.

That case therefore does

There is therefore no basis for concluding that § 301 preempts

15

Plaintiff’s claims.

16

C.

Preemption as to the “Duty of Fair Representation”

17
18
2

19
20
21
22
23
24
25
26
27
28

See Jimeno v. Mobil Oil Corp., 66 F.3d 1514, 1527 (9th Cir.
1995) (detailing FEHA’s “clear statutory and regulatory standards”
which “provide a means to determine ‘reasonable accommodation’
without reference to the CBA”); id. at 1528 (“[T]he California FEHA
is unlike the Missouri anti-discrimination provision which requires
consideration of the employer's authority under the CBA to make
accommodations. Therefore, Mobil cannot assert that the state is
indifferent to negotiation and alteration of the right by private
contract . . . .”) (citation omitted); Ramirez v. Fox Television
Station, Inc., 998 F.2d 743, 748 (9th Cir. 1993) (“[T]he rights
conferred by the California Employment Act are defined and enforced
under state law without reference to the terms of any collective
bargaining agreement. Actions asserting those rights are thus
independent of collective-bargaining agreements. These rights are
nonnegotiable and cannot be removed by private contract.”)
(citations omitted) (internal quotation marks omitted). See also
Cramer v. Consol. Freightways, Inc., 209 F.3d 1122, 1131-32 (9th
Cir. 2000) (distinguishing between rights under FEHA, which are
non-negotiable, and the right to privacy under California law,
which is negotiable).
7

1

The Union also argues that, independent of any possible § 301

2

preemption, Plaintiff’s claims are preemption because they

3

implicate the Union’s “duty of fair representation,” which is a

4

matter of federal law.

5

he did not plead any claim as to the duty of fair representation.

6

(Reply at 10.)

7

(Opp’n at 2-5.)

Plaintiff points out that

The “duty of fair representation” is not mentioned in the LMRA

8

statute; rather, it is a judicial creation imputing to unions a

9

duty “to serve the interests of all members without hostility or

10

discrimination toward any,” based on the provisions of the National

11

Labor Relations Act (“NLRA”).3

12

87 S. Ct. 903, 910, 17 L. Ed. 2d 842 (1967).

13

touchstone of the federal district court's removal jurisdiction is

14

. . . the intent of Congress,” Metro. Life Ins. Co. v. Taylor, 481

15

U.S. 58, 66 (1987), and although the duty of fair representation is

16

“judicially evolved” and predates Congress’s passage of the LMRA,

17

Breininger v. Sheet Metal Workers Int'l Ass'n Local Union No. 6,

18

493 U.S. 67, 79 (1989), some circuits have nonetheless found that

19

this judicial creation preempts state law claims and provides

20

removal jurisdiction.

21

Am., 864 F.2d 1162, 1166-67 (5th Cir. 1989) (holding that a claim

22

predicated solely on a union’s failure to meet its duty of fair

23

representation provided removal jurisdiction); BIW Deceived v.

24

Local S6, Indus. Union of Marine & Shipbuilding Workers of Am.,

Vaca v. Sipes, 386 U.S. 171, 177,
Although “the

See Richardson v. United Steelworkers of

25
3

26
27
28

The Supreme Court has never held that the NLRA can preempt
state law for purposes of removal jurisdiction. Holman v.
Laulo-Rowe Agency, 994 F.2d 666, 668 (9th Cir. 1993) (noting that
the Court “has identified only two federal acts whose preemptive
force” can justify federal question jurisdiction: LMRA and the
Employee Retirement Income Security Act).
8

1

IAMAW Dist. Lodge 4, 132 F.3d 824, 831 (1st Cir. 1997) (holding

2

that state law claims against a union rooted in negligence and

3

fraud fell under the duty of fair representation and therefore

4

provided removal jurisdiction).

5

Letter Carriers, 225 F.3d 1149, 1158 (10th Cir. 2000) (holding that

6

state wrongful discharge and civil conspiracy claims fell under the

7

duty of fair representation, but not addressing removal

8

jurisdiction).

9

specifically invoked the federal duty rather than a right under

See also Thomas v. Nat'l Ass'n of

Richardson, however, dealt with a complaint that

10

state law.4

11

these out-of-circuit decisions, respectfully disagrees with their

12

reasoning.

As to BIW Deceived and Thomas, the Court, not bound by

13

First, as at least one other district court has found, the

14

duty is fundamentally a judicial creation and has little to say

15

about congressional intent.

16

F. Supp. 2d 868, 874-75 (E.D. Mich. 2008).

17

into the NLRA, it is not an explicit statutory grant of

18

jurisdiction to federal courts, as § 301 of the LMRA is.

19

jurisdiction exists only where “Congress has clearly manifested an

20

intent to make causes of action . . . removable to federal court.”

21

Taylor, 481 U.S. 58, 66.

Wrobbel v. Asplundh Const. Corp., 549
Although it is read

Removal

22

Second, the Supreme Court has said that the rationale for

23

preemption that undergirds LMRA preemption has much less force when

24

it comes to the duty of fair representation:

25
26
27
28

4

“The duty which the Union allegedly breached is described in
the original petition as ‘a duty’ which the Union had ‘[a]s the
bargaining agent for Plaintiffs’ (emphasis added). No other source
of duty is alleged in the original petition.” Richardson v. United
Steelworkers of Am., 864 F.2d 1162, 1165 (5th Cir. 1989).
9

1

[T]he decision to pre-empt federal and state court

2

jurisdiction over a given class of cases must depend upon the

3

nature of the particular interests being asserted and the

4

effect upon the administration of national labor policies of

5

concurrent judicial and administrative remedies.

6

A primary justification for the pre-emption doctrine—the need

7

to avoid conflicting rules of substantive law in the labor

8

relations area and the desirability of leaving the development

9

of such rules to the administrative agency created by Congress

10

for that purpose—is not applicable to cases involving alleged

11

breaches of the union's duty of fair representation.

12
13

Vaca, 386 U.S. at 180-81.
Third, even if preemption applies in cases like Richardson

14

where the complaint appeals to the duty directly and does not make

15

a claim under a clear, non-negotiable state statute, applying it as

16

a blanket rule in the face of such state claims would, again, tend

17

to make Miller a dead letter.

18

profoundly implicates the duty of fair representation that state

19

law claims are completely preempted, there is no need to engage in

20

analysis as to § 301.

21

If every act by a labor union so

Fourth, although the Ninth Circuit has not squarely considered

22

the question yet of whether the duty of fair representation

23

completely preempts state law claims for removal purposes, its

24

precedent suggests that FEHA’s provisions may not be preempted at

25

all, let alone completely.5

As the Circuit explained in 2008,

26
5

27
28

“The jurisdictional issue of whether complete preemption
exists . . . is very different from the substantive inquiry of
whether a ‘preemption defense’ may be established.” Holman v.
(continued...)
10

1

The federal statutory duty which unions owe their members to

2

represent them fairly also displaces state law that would

3

impose duties upon unions by virtue of their status as the

4

workers' exclusive collective bargaining representative . . .

5

.

6

must make a showing of additional duties, if they exist,

7

beyond the normal incidents of the union-employee

8

relationship.

9

the union's status as its members' exclusive collective

10

To bring a successful state law action, aggrieved workers

Such duties must derive from sources other than

bargaining representative . . . .

11

Adkins v. Mireles, 526 F.3d 531, 539-40 (9th Cir. 2008) (emphases

12

added).

13

a FEHA claim “[t]he duty not to discriminate arises from a source

14

other than the Union's status as its members' exclusive collective

15

bargaining representative—i.e., the duty under FEHA.”

16

Kaiser Found. Hospitals, No. C-12-1824 EMC, 2012 WL 2598165, at *7

17

(N.D. Cal. July 5, 2012).

18

As the Northern District of California recently noted, in

Martinez v.

For all these reasons, the Court finds that Plaintiff’s state

19

law claims are not preempted by the federal duty of fair

20

representation.

21
22
23
24

///

25

///

26

///

27
5

28

(...continued)
Laulo-Rowe Agency, 994 F.2d 666, 669 (9th Cir. 1993).
11

1
2

IV.

CONCLUSION
The Court finds that it lacks jurisdiction to hear this case.

3

The case is REMANDED to state court.

4

The pending motion to dismiss

(Dkt. No. 7) is VACATED as moot.

5
6

IT IS SO ORDERED.

7
8

Dated: February 19, 2015
DEAN D. PREGERSON
United States District Judge

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
12