Alexander v. Republic Services, Inc. et al

Filing 17

ORDER REMANDING CASE to California Superior Court for the County of Solano signed by Senior Judge William B. Shubb on 5/17/17: Because the matter must be remanded to the state court, this court does not consider defendants' motion to dismiss. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo----

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JIMMY ALEXANDER, on behalf of
himself and other aggrieved
current and former employees,
Plaintiff,

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v.

CIV. NO. 2:17-0644 WBS AC
MEMORANDUM AND ORDER RE: MOTION
TO REMAND AND MOTION TO DISMISS
OR, IN THE ALTERNATIVE, FOR A
MORE DEFINITE STATEMENT OF
ALLEGATIONS

REPUBLIC SERVICES, INC.;
ALLIED WASTE SYSTEMS, INC.,
doing business as “Republic
Services of Contra Costa
County”; SOLANO GARBAGE
COMPANY; and DOES 1 through
50, inclusive,
Defendants.

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----oo0oo----

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Plaintiff Jimmy Alexander brought this putative class

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action against defendants Republic Services, Inc.; Allied Waste

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Systems, Inc.; and Solano Garbage Company, alleging that

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defendants failed to pay him and putative class members minimum

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wages for all hours worked, include non-discretionary bonuses in

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regular rates of pay for purposes of calculating overtime pay,
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provide or pay for required rest breaks, pay wages upon

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termination, and provide complete and accurate wage statements in

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violation of the California Labor Code.

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Compl. (Docket No. 2).)

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Motion to remand this action to the California Superior Court for

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the County of Solano (“Solano County Superior Court”), where this

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action had originally been brought, (Pl.’s Mot. to Remand (Docket

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No. 9)), and (2) defendants’ Motion to dismiss plaintiff’s

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Complaint for failure to state a claim under Federal Rule of

(Notice of Removal,

Before the court now is plaintiff’s

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Civil Procedure 12(b)(6) or, in the alternative, for a more

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definite statement of allegations under Federal Rule of Civil

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Procedure 12(e), (Defs.’ Mot. to Dismiss (Docket No. 5)).

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I.

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Factual and Procedural Background
Plaintiff, a California resident, alleges that he “was

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formerly employed by Defendants in a non-exempt, hourly-paid

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position” in California.

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does not state what position he was employed in, his Opposition

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to defendants’ Motion to dismiss states that he was employed as a

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garbage collector.

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6 (Docket No. 10).)

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entities involved in the business of garbage collection.

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Compl. at 1, 12.)

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(Compl. ¶ 9.)

Though his Complaint

(See Pl.’s Opp’n to Defs.’ Mot. to Dismiss at
Defendants are allegedly related California
(See

On February 17, 2017, plaintiff brought this putative

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class action against defendants in the Solano County Superior

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Court, alleging a single cause of action under the California

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Private Attorneys General Act (“PAGA”), Cal. Lab. Code § 2699.

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(See id. at 1, 4.)

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defendants committed five violations of the California Labor

Plaintiff’s PAGA cause of action alleges that

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Code1: (1) failure to pay minimum wages for all hours worked,

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Cal. Lab. Code § 1197; (2) failure to include non-discretionary

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bonuses in regular rates of pay for purposes of calculating

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overtime pay, id. § 510(a); (3) failure to provide or pay for

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required rest breaks, id. §§ 226.7(c), 512(a); (4) failure to pay

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wages upon termination, id. § 201(a); and (5) failure to provide

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complete and accurate wage statements, id. §§ 226, 1174(d).

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Compl. at 4-6.)

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(See

On March 27, 2017, defendants removed plaintiff’s

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action to this court on the basis of federal question

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jurisdiction, 28 U.S.C. § 1331, and section 301 of the Labor

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Management Relations Act (“LMRA”), 29 U.S.C. § 185.

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Removal (Docket No. 2).)

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their removal papers, preempts state law claims “which are

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substantially dependent on analysis of a collective bargaining

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agreement.”

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826 F.2d 857, 861 (9th Cir. 1987)).)

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completely preempts the field of collective bargaining agreement

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(“CBA”) disputes, defendants note, state law claims preempted by

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LMRA section 301 are considered federal claims, which may be

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heard in federal court.

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v. Williams, 482 U.S. 386, 393 (1987)).)

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plaintiff’s claims, though brought under the California Labor

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Code, are preempted by LMRA section 301 because determining

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whether defendants violated the California Labor Code provisions

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cited in such claims will “substantially depend[]” on analysis of

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(Notice of

LMRA section 301, defendants noted in

(Id. at 1-2 (quoting Paige v. Henry J. Kaiser Co.,
Because LMRA section 301

(See id. at 2-3 (citing Caterpillar Inc.
Defendants contend that

For ease of reference, the court will refer to each
alleged violation as a “claim.”
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plaintiff’s and putative class members’ CBAs.

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(See id. at 10.)

On April 3, 2017, defendants moved to dismiss

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plaintiff’s Complaint for failure to state a claim under Federal

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Rule of Civil Procedure 12(b)(6) or, in the alternative, for a

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more definite statement of allegations under Rule 12(e).

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Mot. to Dismiss.)

(Defs.’

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On April 14, 2017, plaintiff moved to remand this

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action to the Solano County Superior Court on grounds that,

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contrary to defendants’ contention, resolution of this action

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will not “substantially depend[]” on analysis of his and putative

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class members’ CBAs.

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(Pl.’s Mot. to Remand.)

Plaintiff’s Motion to remand and defendants’ Motion to

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dismiss are now before the court.

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II.

Discussion

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“[A] federal court generally may not rule on the merits

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of a case without first determining that it has [subject matter]

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jurisdiction over the category of claim in [the case].”

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Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 430-31

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(2007).

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existence of subject matter jurisdiction in this case, the court

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must resolve that Motion before turning, if it turns at all, to

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defendants’ Motion to dismiss.

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LLC, 640 F. App’x 609, 612 (9th Cir. 2016) (“[T]he district court

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erred in denying [plaintiff’s] motions to remand and in granting

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[defendant’s] motion to dismiss [under Rule 12(b)(6)] before

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assuring itself of its own jurisdiction.”); Woodard v. Wells

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Fargo Bank, No. 5:14-CV-01017 ODW, 2014 WL 3534086, at *1 (C.D.

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Cal. July 16, 2014) (“The Court addresses the Motion to Remand

Sinochem

Because plaintiff’s Motion to remand challenges the

See Robertson v. GMAC Mortg.,

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first since it concerns the Court’s subject-matter jurisdiction

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over the case.

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The Court then turns to the Motion to Dismiss.”).

The issue of dispute on plaintiff’s Motion to remand is

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whether plaintiff’s claims “substantially depend[]” on analysis

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of CBAs, and thus are preempted by LMRA section 301.

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LMRA section 301, by way of background, provides

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federal question jurisdiction over “suits for violation of

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contracts between an employer and a labor organization.”

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U.S.C. § 185(a).

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LMRA section 301 preempts both claims which are

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“founded directly on rights created by collective bargaining

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agreements” and state law claims which are “substantially

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dependent on analysis of a collective bargaining agreement.”

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Paige, 826 F.2d 857, 861 (9th Cir. 1987) (citing Caterpillar, 482

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U.S. at 393).

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“[T]he Supreme Court has interpreted [LMRA section 301]

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to compel the complete preemption of state law claims brought to

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enforce collective bargaining agreements.”

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Corp., 410 F.3d 1071, 1075 (9th Cir. 2005) (citing Avco Corp. v.

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Aero Lodge No. 735, Int’l Ass’n of Machinists & Aerospace

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Workers, 390 U.S. 557, 560 (1968)).

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“complete preemption,” a state law claim preempted by LMRA

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section 301 “is considered, from its inception, a federal claim,

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and therefore arises under federal law.”

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Century-Fox Film Corp., 208 F.3d 1102, 1107 (9th Cir. 2000).

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Such claims may be removed to and heard in federal court.

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Jackson v. S. California Gas Co., 881 F.2d 638, 646 (9th Cir.

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1989).

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Valles v. Ivy Hill

Pursuant to the doctrine of

Balcorta v. Twentieth

“[T]o determine whether a state [statute claim] is
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‘substantially dependent’ on the terms of a CBA,” the Ninth

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Circuit has instructed courts to “decide whether the claim can be

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resolved by looking to versus interpreting the CBA.”

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Kiewit Pac. Corp., 491 F.3d 1053, 1060 (9th Cir. 2007).

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statute claim that requires “interpreting” a CBA is said to be

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“substantially dependent” on the CBA, and thus preempted by LMRA

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section 301.

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“looking to” a CBA, on the other hand, is said not to be

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“substantially dependent” on the CBA, and thus not preempted by

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Id.

LMRA section 301.

Burnside v.
A state

A state statute claim that merely requires

Id. at 1060.

While the “looking to versus interpreting” distinction

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“is not always clear or amenable to a bright-line test,” Cramer

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v. Consol. Freightways, Inc., 255 F.3d 683, 691 (9th Cir. 2001),

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the Supreme Court and Ninth Circuit have developed several other

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guidelines with respect to LMRA section 301 that assist the court

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in determining whether LMRA section 301 preempts a given state

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law claim.

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For instance, the Supreme Court has held that “when the

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meaning of [a CBA] is not the subject of dispute, the bare fact

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that [the] CBA will be consulted in the course of state-law

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litigation plainly does not require the [state-law] claim to be

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extinguished” in favor of LRMA section 301.

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512 U.S. 107, 124 (1994); see also Beck, 2016 WL 4769716, at *5

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(LMRA section 301 will not preempt a claim where “the terms of

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the CBA will only be considered by way of reference and will not

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be reasonably disputed by the parties”).

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Ninth Circuit has held that LMRA section 301 will not preempt a

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state law claim merely because: (1) “the defendant refers to [a]
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Livadas v. Bradshaw,

Adding to that, the

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CBA in mounting a defense,” Cramer, 255 F.3d at 691; (2) a CBA

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must be consulted “in computing a penalty,” Burnside, 491 F.3d at

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1060; or (3) “a hypothetical connection [exists] between [the]

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claim and the terms of [a] CBA,” Cramer, 255 F.3d at 691; see

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also id. at 692 (“A creative linkage between the subject matter

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of the claim and the wording of a CBA provision is insufficient;

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rather, the proffered interpretation argument must reach a

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reasonable level of credibility.”).

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preempt a claim, the Ninth Circuit instructs, “the need to

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interpret [a] CBA must inhere in the nature of the [claim].”

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For LMRA section 301 to

Id.

With these guidelines in mind, the court examines
whether plaintiff’s claims are preempted by LMRA section 301.

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Plaintiff’s first claim (“minimum wages claim”) alleges

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that “[d]efendants failed to pay him and other aggrieved

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employees [minimum wages] for all hours worked, including time

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spent performing work prior to the start of the shift, and time

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spent working after end of the shift,” in violation of California

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Labor Code section 1197 (“section 1197”).

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at 4-5.2)

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the minimum [wage] . . . fixed” by state or local law.

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Code § 1197; see also Hernandez v. Towne Park, Ltd., No. CV 12-

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02972 MMM JCGX, 2012 WL 2373372, at *11 (C.D. Cal. June 22, 2012)

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(California Labor Code section 1197.1, section 1197’s enforcement

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statute, provides a cause of action for failure to pay for off-

(Pl.’s Mot. to Remand

Section 1197 prohibits “payment of a lower wage than
Cal. Lab.

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“[T]he court may consider documents outside of [a]
complaint in analyzing [a motion to] remand . . . .” CopelandTurner v. Wells Fargo Bank, N.A., No. CV-11-37 HZ, 2011 WL
996706, at *7 (D. Or. Mar. 17, 2011) (citing Parrino v. FFlP,
Inc., 146 F.3d 699, 704 (9th Cir. 1998)).
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the-clock work).

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No need to reference a CBA is apparent from the face of

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plaintiff’s minimum wages claim.

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appears the court would merely have to decide whether defendants

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paid plaintiff and putative class members minimum wages for all

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hours they worked, an inquiry that does not implicate any CBA

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provisions.

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upon the outcome of plaintiff’s minimum wages claim, the court

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will not find that LMRA section 301 preemption applies to that

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In resolving that claim, it

Without being directed to a CBA provision that bears

claim.

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Defendants cite, in their Opposition to plaintiff’s

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Motion to remand, a number of CBA provisions that they contend

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the court must interpret to resolve this action.

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Opp’n to Pl.’s Mot. to Remand (“Defs.’ Opp’n”) at 7-14 (Docket

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No. 11).)

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contend is relevant to plaintiff’s minimum wages claim is section

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six of the Solano Garbage CBA (“Solano section six”).

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at 10.)

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the Employer agrees to provide at least eight (8) hours of work

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to every Employee who is told to report, does in fact report to

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work and who is given an assignment to perform.”

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Defendants contend that Solano section six can disputably be read

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to require them to pay plaintiff and putative class members “for

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a minimum of eight hours a day” each day they report to work,

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even on days when they do “not work for a full eight hours.”

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(Id.)

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class members, defendants contend, “will be substantially

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dependent on” how the court interprets Solano section six.

(See Defs.’

The only such provision that defendants appear to

(See id.

That provision states: “[During] the regular workweek,

(Id.)

“Whether [wages] would be due” to plaintiff and putative

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(Id.)

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The court cannot conceive of a connection between

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plaintiff’s minimum wages claim and Solano section six.

The wage

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rights conferred upon plaintiff and putative class members by

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section 1197 and Solano section six are separate and distinct.

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Whether plaintiff and putative class members are entitled to at

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least eight hours of wages for each day they report to work has

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no bearing, that the court can conceive of, upon whether

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defendants failed to pay them minimum wages for all hours they

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worked.

Moreover, even if Solano section six were somehow

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relevant to plaintiff’s minimum wages claim, plaintiff has not

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disputed its interpretation.

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Solano section six does not change the court’s conclusion that

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LMRA section 301 does not preempt plaintiff’s minimum wages

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claim.

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Thus, defendants’ citation of

Plaintiff’s second claim (“overtime claim”) alleges

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that defendants “fail[ed] to include certain non-discretionary

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bonuses in [plaintiff’s and putative class members’] regular

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rate[s] of pay for purposes of calculating overtime” pay in

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violation of California Labor Code section 510 (“section 510”).

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(Pl.’s Mot. to Remand at 6.)

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pay employees at “no less than one and one-half times the regular

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rate of pay” for overtime work.

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Section 510 requires employers to

Cal. Lab. Code § 510(a).3

In

Defendants note that California Labor Code section 514
(“section 514”) exempts employees who are “covered by [certain]
valid collective bargaining agreement[s]” from the overtime
provisions of section 510. (Defs.’ Opp’n at 15.) Determining
whether plaintiff and putative class members are covered by
“valid” CBAs under section 514, and thus precluded from asserting
overtime claims under section 510, defendants note, will require
examining their CBAs. (See id. at 14-17.) Section 514 thus
triggers LMRA section 301 preemption, defendants argue.
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determining what the “regular rate of pay” consists of,

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California courts look to the Fair Labor Standards Act (“FLSA”),

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which defines “regular rate of pay” to include “non-discretionary

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incentive pay.”

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JPRX, 2015 WL 2431644, at *5 (C.D. Cal. May 19, 2015).

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McKinley v. Sw. Airlines Co., No. CV 15-02939 AB

Counsel for plaintiff represented at oral argument that

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the bonuses at issue in plaintiff’s overtime claim are not

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provided for in CBAs.

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that plaintiff will not seek to assert, in this action, that any

Counsel also represented at oral argument

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payments provided for in CBAs were unlawfully excluded from his

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or putative class members’ “regular rate[s] of pay” for overtime

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purposes.

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In light of such representations, the court finds that

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resolution of plaintiff’s overtime claim will not require any CBA

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analysis.

The only questions the court would have to answer in

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The court acknowledges that district courts in this
circuit have reached different conclusions with respect to
whether section 514 triggers LMRA section 301 preemption.
Compare, e.g., Coria v. Recology, Inc., 63 F. Supp. 3d 1093,
1098-1100 (N.D. Cal. 2014) (finding that section 514 triggers
LMRA section 301 preemption), and Raphael v. Tesoro Ref. & Mktg.
Co. LLC, No. 2:15-CV-02862 ODW EX, 2015 WL 3970293, at *7 (C.D.
Cal. June 30, 2015) (same), with Densmore v. Mission Linen
Supply, 164 F. Supp. 3d 1180, 1190-91 (E.D. Cal. 2016) (O’Neill,
J.) (finding that section 514 does not trigger LMRA section 301
preemption), and Vasserman v. Henry Mayo Newhall Mem’l Hosp., 65
F. Supp. 3d 932, 954 (C.D. Cal. 2014) (same). On this issue, the
court finds the position stated in Vasserman and Densmore to be
more persuasive. That position holds that “because [section] 514
is an affirmative defense,” it does not trigger LMRA section 301
preemption. Densmore, 164 F. Supp. 3d at 1191; see also
Vasserman, 65 F. Supp. 3d at 954. The court also notes that
unlike Coria and Raphael, which defendants cite in their
Opposition, this action, as presently alleged, raises no disputed
CBA provisions. Accordingly, the court declines to find that
section 514 triggers LMRA section 301 preemption here.
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resolving plaintiff’s overtime claim are: (1) whether the bonuses

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at issue constitute “non-discretionary incentive pay” under the

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FLSA, as incorporated by California Labor Code section 510, and

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(2) whether defendants failed to include such bonuses in

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plaintiff’s and putative class members’ “regular rate[s] of pay”

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for purposes of calculating overtime pay.

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implicates any CBA provisions.

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plaintiff’s overtime claim is not preempted by LMRA section 301.

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Defendants contend that resolving plaintiff’s overtime

Neither question

Thus, the court finds that

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claim will require calculating plaintiff’s and putative class

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members’ “regular rate[s] of pay.”

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Calculating plaintiff’s and putative class members’ “regular

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rate[s] of pay,” defendants note, requires analyzing and applying

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numerous CBA wage provisions.

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provisions).)

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requires analysis and application of numerous CBA wage

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provisions, defendants argue, the court should find that the

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claim is preempted by LMRA section 301.

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(See Defs.’ Opp’n at 7.)

(Id. at 7-14 (citing CBA wage

Because resolving plaintiff’s overtime claim thus

The court disagrees with defendants’ premise that

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resolving plaintiff’s overtime claim will require calculating

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plaintiff’s and putative class members’ “regular rate[s] of pay.”

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The sole issue with respect to “regular rate[s] of pay” raised by

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plaintiff’s overtime claim is whether such rates included the

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non-CBA bonuses plaintiff contends they should have included.

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Comprehensive calculation of “regular rate[s] of pay” is not

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required to make that determination.

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regardless of what they amount to, included non-CBA bonuses, or

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Either the rates,

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they did not.4

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calculating “regular rate[s] of pay” does not alter the court’s

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conclusion that LMRA section 301 does not preempt plaintiff’s

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overtime claim.

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Thus, defendants’ argument with respect to

Plaintiff’s third claim (“rest breaks claim”) alleges

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that defendants failed to allow plaintiff and putative class

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members to take “10-minute rest break[s] for every four (4) hours

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worked” or “pay proper compensation” for denial of such breaks in

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violation of California Labor Code sections 226.7 and 512 and the

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applicable Wage Order of the California Industrial Welfare

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Commission (“IWC Wage Order”).5

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also does not appear to require any CBA analysis.

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this claim, it appears the court must merely decide whether

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defendants provided or paid proper compensation for denial of ten

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minute rest breaks for every four hours worked.

(Compl. ¶¶ 21-22.)

This claim
In resolving

No CBA provision

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Even if comprehensive calculation of “regular rate[s]
of pay” was necessary to resolve plaintiff’s overtime claim,
plaintiff does not dispute the CBA wage provisions relevant to
such calculation. (See Pl.’s Reply at 1-3 (Docket No. 15).)
Thus, the court would be able to calculate “regular rate[s] of
pay” in this action by consulting, without having to resolve
disputes over, plaintiff’s and putative class members’ CBAs.
Consulting without having to resolve disputes over CBAs does not
give rise to LMRA section 301 preemption. See Livadas, 512 U.S.
at 124 (“[W]hen the meaning of [a CBA] is not the subject of
dispute, the bare fact that [the] CBA will be consulted in the
course of state-law litigation plainly does not require the
[state-law] claim to be extinguished” in favor of LRMA section
301.).
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Plaintiff does not cite an IWC Wage Order in his
Complaint. The applicable IWC Wage Order appears to be IWC Wage
Order 4-2001 section 12(A). See Cal. Code Regs. tit. 8, §
11040(12)(A) (employers must provide employees rest breaks “based
on the total hours worked daily at the rate of ten (10) minutes
net rest time per four (4) hours or major fraction thereof”).
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is implicated by this claim.

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Defendants note that section 16(B) of the Solano

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Garbage CBA (“Solano section 16(B)”) provides that “[a]ny

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employee who works two (2) hours of overtime shall be entitled to

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an additional fifteen (15) minute break.”

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They contend that resolving plaintiff’s rest breaks claim will

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require interpreting Solano section 16(B) “to determine whether

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the additional break applies if the employee works over 40 hours

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in a week but had not worked more than 8 hours in day.”

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(Defs.’ Opp’n at 12.)

(Id.)

Similar to defendants’ citation of Solano section 6

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with respect to plaintiff’s minimum wages claim, defendants’

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citation of Solano 16(B) with respect to plaintiff’s rest breaks

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claim attributes an argument to plaintiff that plaintiff does not

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make.

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defendants failed to provide or pay for breaks required by Solano

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16(B); it argues that defendants failed to provide or pay for

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breaks required by the California Labor Code and the applicable

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IWC Wage Order.

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plaintiff’s rest breaks claim, the court will not have to

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interpret that provision in resolving plaintiff’s rest breaks

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claim.

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not change the court’s conclusion that plaintiff’s rest breaks

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claim does not require CBA analysis, and thus is not preempted by

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LMRA section 301.6

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In his rest breaks claim plaintiff does not contend that

Because Solano 16(B) is not at issue in

Thus, defendants’ citation of Solano section 16(B) does

Defendants note that if the court were to find that
plaintiff and putative class members are entitled to compensation
for being denied rest breaks under California law, it would need
to calculate their “regular rate[s] of pay” to determine what
“rest break premiums” they are owed. (Defs.’ Opp’n at 7.) The
need for such calculation, defendants contend, gives rise to LMRA
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Plaintiff’s fourth claim alleges failure to pay wages

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upon termination in violation of California Labor Code sections

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201 to 204, and plaintiff’s fifth claim alleges failure to

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provide complete and accurate wage statements in violation of

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California Labor Code sections 226 and 1174(d).

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concede that such claims are “derivative” of plaintiff’s first

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through third claims for purposes of LMRA section 301 preemption.

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(Id. at 7 n.3.)

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third claims are not preempted under LMRA section 301, the court

Defendants

Having found that plaintiff’s first through

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finds that plaintiff’s fourth and fifth claims are also not

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preempted under LMRA section 301.

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Having found that none of plaintiff’s claims are

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preempted by LMRA section 301, the court finds that there is no

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federal question jurisdiction in this case.

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court will grant plaintiff’s Motion to remand this action to the

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Solano County Superior Court.

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Accordingly, the

IT IS THEREFORE ORDERED that Plaintiff’s Motion to

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remand this action to the California Superior Court for the

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County of Solano be, and the same hereby is, GRANTED.

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the matter must be remanded to the state court, this court does

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not consider defendants’ motion to dismiss.

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Dated:

Because

May 17, 2017

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section 301 preemption. As discussed in footnote four, however,
calculating plaintiff’s and putative class members’ “regular
rate[s] of pay” would not require the court to resolve any
disputed CBA issues. Consulting without having to resolve
disputes over CBAs does not give rise to LMRA section 301
preemption. See Livadas, 512 U.S. at 124.
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