Martinez v. Kaiser Foundation Hospitals et al

Filing 28

ORDER by Judge Edward M. Chen Granting #7 Defendants' Motion to Dismiss. (emcsec, COURT STAFF) (Filed on 7/5/2012)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

NORTHERN DISTRICT OF CALIFORNIA

7
8

GLORIA MARTINEZ,

9

Plaintiff,

11
For the Northern District of California

United States District Court

10

No. C-12-1824 EMC

v.

ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS

KAISER FOUNDATION HOSPITALS, et
al.,

(Docket No. 7)

12
13

Defendants.
___________________________________/

14
15

Plaintiff Gloria Martinez has filed suit against Defendants Kaiser Foundation Hospitals, the

16

Permanente Medical Group, Inc., and Service Employees International Union (“Union”). As against

17

the Union, Ms. Martinez has asserted claims for discrimination based on age and disability and for

18

breach of the duty of fair representation. Currently pending before the Court is the Union’s motion to

19

dismiss or, in the alternative, for summary judgment. For the foregoing reasons, the Court GRANTS

20

the motion but gives Ms. Martinez leave to amend to address the deficiencies discussed below.

21

I.

FACTUAL & PROCEDURAL BACKGROUND

22

In her complaint, Ms. Martinez alleges as follows.

23

Ms. Martinez was an employee of the Kaiser entities. On an unspecified date, the Kaiser

24

entities constructively discharged her. The Kaiser entities illegally harassed her and eventually

25

terminated her employment based on her age (59 years and 11 months at the time of termination)

26

and her disability (diabetes). See Compl. ¶¶ 12-15, 25-29.

27

According to Ms. Martinez, her age and disability were also motivating factors behind the

28

Union’s conduct, more specifically, its “failure to provide quality union representation, failure to

1

investigate her grievances against [the Kaiser entities], and failure to advocate for [her] in

2

disciplinary meetings and upon [the Kaiser entities’] notice of . . . decision to terminate [her]

3

employment.” Compl. ¶¶ 16, 30. Ms. Martinez maintains that the Union knew of the Kaiser

4

entities’ discriminatory conduct but failed to file and pursue appropriate grievances. See Compl. ¶¶

5

16, 30. It is not clear whether the Union failed to pursue only the grievance related to the

6

constructive discharge or whether there are other grievances that were not pursued as well. Ms.

7

Martinez claims that, in similar circumstances, the Union provided more favorable representation to

8

younger, non-disabled members. See Compl. ¶¶ 16, 30.

9

In addition to the above, Ms. Martinez claims that the Union violated her rights because it
failed to comply with its duty of fair representation. Ms. Martinez asserts that the Union breached its

11
For the Northern District of California

United States District Court

10

duty

12

by failing to investigate her claims against [the Kaiser entities], giving
[her] false and erroneous information and advice, failing to keep [her]
apprised of the status of the [U]nion’s actions and involvement
regarding her termination, and failing to pursue a grievance and/or
arbitration on her behalf without good faith and for arbitrary,
capricious, and discriminatory reasons.

13
14
15
16
17

Compl. ¶ 58.
Based on, inter alia, the above allegations, Ms. Martinez has asserted the following claims

18

against the Union1: age discrimination in violation of the California Fair Employment and Housing

19

Act (“FEHA”); disability discrimination in violation of the same; breach of the duty of fair

20

representation; and intentional infliction of emotional distress.

21

Although the Union is moving to dismiss each claim pursuant to Federal Rule of Civil

22

Procedure 12(b)(6), it has asked the Court to take into consideration certain evidence outside the

23

four corners of the complaint, including excerpts of the Kaiser entities’ collective bargaining

24

agreement with the Union, Ms. Martinez’s “resignation” letter dated April 14, 2011, discipline

25

documents issued by the Kaiser entities, and Ms. Martinez’s unfair labor practice charge against the

26

Union. See generally Harland Decl. The Union argues that the evidence may be considered because

27
28

1

Additional claims have been asserted against the Kaiser entities.

2

1

the Ninth Circuit has held that, “[e]ven if a document is not attached to a complaint, it may be

2

incorporated by reference into a complaint if the plaintiff refers extensively to the document or the

3

document forms the basis of the plaintiff’s claim.” United States v. Ritchie, 342 F.3d 903, 908 (9th

4

Cir. 2003); see also Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998) (“hold[ing] that a

5

district court ruling on a motion to dismiss may consider a document the authenticity of which is not

6

contested, and upon which the plaintiff’s complaint necessarily relies”). Alternatively, the Union

7

asks that the Court construe the motion to dismiss as one for summary judgment. See Mot. at 6. For

8

Rule 12(b)(6) purposes, the Court may consider the excerpts of the collective bargaining agreement,

9

the “resignation” letter, and the NLRB-related papers. As these appear to be the critical documents
(and not, e.g., the discipline documents issued by the Kaiser entities), it is not necessary for the

11
For the Northern District of California

United States District Court

10

Court to convert the motion into one for summary judgment.

12
13
14

II.
A.

DISCUSSION

Legal Standard
Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss based on the

15

failure to state a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). A motion to

16

dismiss based on Rule 12(b)(6) challenges the legal sufficiency of the claims alleged. See Parks

17

Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). In considering such a motion, a court

18

must take all allegations of material fact as true and construe them in the light most favorable to the

19

nonmoving party, although “conclusory allegations of law and unwarranted inferences are

20

insufficient to avoid a Rule 12(b)(6) dismissal.” Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir.

21

2009). While “a complaint need not contain detailed factual allegations . . . it must plead ‘enough

22

facts to state a claim to relief that is plausible on its face.’” Id. “A claim has facial plausibility when

23

the plaintiff pleads factual content that allows the court to draw the reasonable inference that the

24

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); see

25

also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). “The plausibility standard is not akin to

26

a ‘probability requirement,’ but it asks for more than sheer possibility that a defendant acted

27

unlawfully.” Iqbal, 129 S. Ct. at 1949.

28

3

1
2

B.

Preemption of State Law Claims
In its motion, the Union argues that each of Ms. Martinez’s state law claims – i.e., age

3

pursuant to FEHA, disability discrimination pursuant to FEHA, and intentional infliction of

4

emotional distress – is preempted by federal law, more specifically, by § 301 of the Labor

5

Management Relations Act (“LMRA”), see 29 U.S.C. § 185, and by § 9 of the National Labor

6

Relations Act (“NLRA”). See id. § 159. The Union has the burden of establishing preemption. See

7

Caterpillar, Inc. v. Williams, 482 U.S. 386, 393 (1987) (indicating that ordinarily preemption is an

8

affirmative defense); Lontz v. Tharp, 413 F.3d 435, 441 (4th Cir. 2005) (noting that the defendant

9

has the burden of establishing complete preemption).
1.

11
For the Northern District of California

United States District Court

10

Section 301 of the LMRA provides in relevant part that “[s]uits for violation of contracts

Section 301 of the LMRA

12

between an employer and a labor organization representing employees in an industry affecting

13

commerce . . . may be brought in any district court of the United States having jurisdiction of the

14

parties.” 29 U.S.C. § 185(a). Although “[s]ection 301 is on its face a jurisdictional statute,” the

15

Supreme Court has held that it “authorize[s] the federal courts to develop a federal common law of

16

CBA [collective bargaining agreement] interpretation” and that “this federal common law preempts

17

the use of state contract law in CBA interpretation and enforcement.” Cramer v. Consol.

18

Freightways, Inc., 255 F.3d 683, 689 (9th Cir. 2001).

19

“In Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985), the [Supreme] Court expanded

20

application of § 301 preemption beyond cases specifically alleging contract violation to those whose

21

resolution ‘is substantially dependent upon analysis of the terms of an agreement made between the

22

parties in a labor contract.’” Cramer, 255 F.3d at 689 (emphasis added). In Lingle v. Norge

23

Division of Magic Chef, Inc., 486 U.S. 399 (1988), the Supreme Court clarified that “states may

24

provide substantive rights to workers that apply without regard to a CBA; a state court suit seeking

25

to vindicate these rights is preempted only if it ‘requires the interpretation of a collective-bargaining

26

agreement.’” Cramer, 255 F.3d at 690 (emphasis added). Finally, in Livadas v. Bradshaw, 512 U.S.

27

107 (1994), the Supreme Court emphasized that

28

4

1

[t]he preemption rule has been applied only to assure that the purposes
animating § 301 will be frustrated neither by state laws purporting to
determine questions relating to what the parties to a labor agreement
agreed, and what legal consequences were intended to flow from
breaches of that agreement, nor by parties’ efforts to renege on their
arbitration promises by relabeling as tort suits actions simply alleging
breaches of duties assumed in collective-bargaining agreements.

2
3
4
5

In [prior case law] . . . we underscored the point that § 301
cannot be read broadly to pre-empt nonnegotiable rights conferred on
individual employees as a matter of state law, and we stressed it is 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) that decides
whether a state cause of action may go forward. Finally, we were
clear that when the meaning of 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
the claim to be extinguished

6
7
8
9

11
For the Northern District of California

United States District Court

10

12

Cramer, 255 F.3d at 690 (internal quotation marks omitted; emphasis added).
The Ninth Circuit has noted that, not surprisingly, “[t]he demarcation between preempted

13

claims and those that survive § 301’s reach is not . . . a line that lends itself to analytical precision” –

14

after all, “‘[s]ubstantial dependence’ on a CBA is an inexact concept.” Id. at 691. Still, there are

15

some “interpretive principles” given the Supreme Court case law, including those cases cited above,

16

namely:

17
18
19
20
21
22

If the plaintiff’s claim cannot be resolved without interpreting
the applicable CBA – as, for example, in Allis-Chalmers, where the
suit involved an employer’s alleged failure to comport with its
contractually established duties – it is preempted. Alternatively, if the
claim may be litigated without reference to the rights and duties
established in a CBA – as, for example, in Lingle, where the plaintiff
was able to litigate her retaliation suit under state law without
reference to the CBA – it is not preempted. The plaintiff’s claim is the
touchstone for this analysis; 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 pre-emption is not mandated simply because the
defendant refers to the CBA in mounting a defense.

23
24
25
26
27
28

Moreover, alleging a hypothetical connection between the
claim and the terms of the CBA is not enough to preempt the claim:
adjudication of the claim must require interpretation of a provision of
the CBA. A creative linkage between the subject matter of the claim
and the wording of a CBA provision is insufficient; rather, the
proffered interpretation argument must reach a reasonable level of
credibility. The argument does not become credible simply because
the court may have to consult the CBA to evaluate it; “looking to” the
CBA merely to discern that none of its terms is reasonably in dispute
does not require preemption.

5

1

Id. at 691-92 (emphasis added). At bottom, “[a] state law is not preempted under § 301 unless it

2

necessarily requires the court to interpret an existing provision of a CBA that can reasonably be said

3

to be relevant to the resolution of the dispute.” Id. at 693.

4

a.

Discrimination Claims

5

In her state law discrimination claims, Ms. Martinez asserts that the Union “fail[ed] to

6

provide quality union representation, fail[ed] to investigate her grievances against [the Kaiser

7

entities], and fail[ed] to advocate for [her] in disciplinary meetings and upon [the Kaiser entities’]

8

notice of . . . decision to terminate [her] employment” because of her age and disability. Compl. ¶¶

9

16, 30. Ms. Martinez claims that, in similar circumstances, the Union provided more favorable

11
For the Northern District of California

United States District Court

10

12

representation to younger, non-disabled members. See Compl. ¶¶ 16, 30.
As Ms. Martinez points out, the Ninth Circuit has applied the following test in determining
whether a discrimination claim brought pursuant to the FEHA was preempted by § 301:

13

(1) Does the CBA contain provisions that govern the actions giving
rise to the state claim? (2) Is the state statute “sufficiently clear” so
that the claim can be evaluated without consideration of overlapping
provisions in the CBA? (3) Has the state shown an intent not to allow
the statute to be altered or removed by private contract? Under this
analysis, “[a] state law will be preempted only if the answer to the first
question is ‘yes,’ and the answer to either the second or third is ‘no.’”

14
15
16
17
18

Espinal v. Northwest Airlines, 90 F.3d 1452, 1457 (9th Cir. 1996).
The first prong above requires a court to determine “‘whether the CBA must serve as the

19

measuring rod in determining whether [the defendant] acted reasonably.’” Id. In the instant case,

20

the Union did not – as a part of its opening brief – specifically point to any specific provision in the

21

collective bargaining agreement that constitutes the measuring rod. It was only in its reply brief that

22

the Union specifically identified the discipline and grievance provisions of the collective bargaining

23

agreement as the measuring rod. See Harland Decl., Ex. A (excerpts of collective bargaining

24

agreement). Given these circumstances, the Court should arguably consider this particular argument

25

waived.

26

Even if the Court does not consider the argument waived, on the merits, the argument is

27

problematic. First, the Union ignores the fact that Ms. Martinez’s discrimination claim is predicated

28

not only on the failure to pursue the grievance on the constructive discharge but also on the failure to

6

1

investigate grievances in the first place. The discipline and grievance provisions in the collective

2

bargaining agreement do not address in any way the Union’s duty to investigate grievances. Thus,

3

as to this particular misconduct, there is no measuring rod in the collective bargaining agreement.

4

Second, the Union argues that, to determine whether it should pursue the grievance on the

on whether the termination was based on “just cause” as required by the collective bargaining

7

agreement. See Harland Decl., Ex. A (CBA Art. XXI, § 1(a)) (requiring just cause for discipline).

8

Essentially, the Union seems to be arguing, as a defense to the discrimination claim, that it had a

9

legitimate nondiscriminatory reason not to pursue the grievance (e.g., because there was just cause

10

for the Kaiser entities’ discipline). But the Ninth Circuit has held that “reliance on CBA provisions

11
For the Northern District of California

constructive discharge, it had to evaluate whether the grievance had any merit, which would depend

6

United States District Court

5

to defend against an independent state law claim does not trigger § 301 preemption.” Humble v.

12

Boeing Co., 305 F.3d 1004, 1011 (9th Cir. 2002) (emphasis added) (rejecting defendant’s argument

13

that, “when it offers a nondiscriminatory justification for its conduct by relying on authorizing CBA

14

provisions, that suffices to trigger preemption of [plaintiff’s] reasonable accommodation claim”).

15

Otherwise, virtually every claim of discrimination in regard to a union’s administration of a

16

member’s rights under a CBA would be preempted since invariably a defendant union is likely to

17

claim just cause in defense. Such a sweeping result appears inconsistent with Lingle.

18

Finally, the Union argues that, for the Court to evaluate whether the Union should have

19

pursued the grievance, it will have to look to and interpret and grievance provisions of the collective

20

bargaining agreement. Arguably, the Court will need to look at the grievance provisions to evaluate

21

what would constitute pursuit of a grievance. But just because the Court may need to look at the

22

grievance provisions, it is far from clear that the Court will have to interpret them. The Union has

23

failed to point to any dispute about the meaning of any terms in the grievance provisions; thus,

24

resolution of the discrimination claims cannot be said to be substantially dependent upon the

25

analysis of the terms of the collective bargaining agreement. See Detabali v. St. Luke’s Hosp., 482

26

F.3d 1199, 1203 (9th Cir. 2007) (stating that, “because there is no dispute over the meaning of any

27

terms within the agreement, . . . resolution of the central issue – whether [the employer]

28

7

1

discriminated against [the plaintiff] in applying the agreement – does not depend on interpretation of

2

the collective bargaining agreement”).

3

Accordingly, the Court concludes that there is no § 301 preemption based on the first prong

4

alone. However, even if the Court were to rule against Ms. Martinez on the first prong, the second

5

and third prongs both weigh in her favor.

6

With respect to the second prong, a court “must determine whether the state right is based

7

upon a sufficiently clear standard, or whether the claim is so intertwined with the operation of the

8

CBA that it cannot be assessed without consideration of the CBA’s overlapping provisions. This

9

inquiry focuses on the independence of the state claim.” Espinal, 90 F.3d at 1457. Most courts have
held that “FEHA violations arise independently of a CBA.” Evans v. Southern Cal. Gas Co., No.

11
For the Northern District of California

United States District Court

10

CV 09-01630 DDP (AJWx), 2009 U.S. Dist. LEXIS 84206, at *21 (C.D. Cal. July 20, 2009). As

12

noted by Judge Breyer, “[t]hese cases rest upon the view that the rights conferred by the [FEHA] are

13

defined and enforced under state law without reference to the terms of any collective bargaining

14

agreement.” Guidry v. Marine Engineers’ Beneficial Ass’n, No. C 05-03960 CRB, 2007 U.S. Dist.

15

LEXIS 21353, at *11-12 (N.D. Cal. Mar. 6, 2007) (noting that, “[i]n general, the Ninth Circuit has

16

held that claims of discrimination under California’s [FEHA] are not preempted by federal law”).

17

There is no reason for the Court to rule any differently in this case. To the extent the Union

18

relies on Audette v. International Longshoremen’s & Warehousemen’s Union, 195 F.3d 1107, 1112

19

(9th Cir. 1999), and Madison v. Motion Picture Set Painters & Sign Writers Local 729, 132 F. Supp.

20

2d 1244 (C.D. Cal. 2000), those cases are the exception and not the rule. Indeed, Judge Breyer has

21

characterized the cases as being “narrow” exceptions – “state-law claims are preempted only when

22

the resolution of an allegation of discrimination itself hinges on the interpretation of a labor

23

contract.” Guidry, 2007 U.S. Dist. LEXIS 21353 at *13 (emphasis in original). In Humble, the

24

Ninth Circuit similarly underscored that Audette was an unusual case:

25
26
27
28

In Audette, plaintiffs brought suit for breach of a settlement
agreement between union employees and their employer, when the
agreement implicated a variety of CBA provisions. As described by
the court, the plaintiffs’ state law discrimination claim “turned on
whether defendants’ alleged failure to perform the settlement
agreement was motivated by retaliation or discrimination.” The state

8

1

law discrimination claim therefore was not a free-standing claim of
discrimination, but substantially depended on proving a violation of
the settlement agreement, which had expressly incorporated the CBA’s
grievance procedures and which depended on interpretation of CBA
terms. Audette was therefore like Allis-Chalmers, in which the
Supreme Court held a state law tort of bad-faith preempted because it
depended on identifying and proving a breach of the CBA as a
necessary component of the claim.

2
3
4
5
6

Humble, 305 F.3d at 1012 n.38 (emphasis added). Here, the complaint asserts a claim of differential

7

treatment with respect to those similarly situated; it is that treatment more than the meaning of the

8

CBA that is the center of dispute.

9

As for the third prong, i.e., whether the state has shown an intent not to allow its prohibition
to be altered or removed by private contract, the Ninth Circuit has held that California has expressed

11
For the Northern District of California

United States District Court

10

such an intent in FEHA – more specifically, through California Government Code § 12920 which

12

“explicitly establish[es] the right to employment without discrimination based on physical handicap

13

[as well as other characteristics, including age] as a public policy of the state.” Jimeno, 66 F.3d at

14

1528. Moreover, California Civil Code § 3513 provides that, while “[a]ny one may waive the

15

advantage of a law intended solely for his benefit[,] . . . a law established for a public reason cannot

16

be contravened by a private agreement.” Cal. Civ. Code § 3513.

17
18
19
20

Accordingly, the Court concludes that the discrimination claims are not preempted pursuant
to § 301.
b.

Claim for Intentional Infliction of Emotional Distress

The Union argues still that, at the very least, Ms. Martinez’s claim for intentional infliction

21

of emotional distress is preempted pursuant to § 301. As indicated in the complaint, the claim for

22

intentional infliction of emotional distress is based upon the Union’s “discriminat[ion] against [her]

23

based on her age and disability” and its “fail[ure] to represent [her] interests . . . for arbitrary,

24

capricious[,] and/or discriminatory reasons.” Compl. ¶ 66. Essentially, this boils down to a claim

25

for intentional infliction of emotional distress based on discrimination. Thus, for reasons similar to

26

above, there is no preemption of the emotional distress claim. Compare, e.g., Oraha v. BCI Coca-

27

Cola Bottling Co., No. C 98-03676 MJJ, 1999 U.S. Dist. LEXIS 1388, at *8 (N.D. Cal. Feb. 2,

28

1999) (concluding that claim for intentional infliction of emotional distress was not preempted

9

1

because “the basis of the plaintiff’s emotional distress claim in this case is discriminatory treatment”

2

and, “[s]ince the CBA almost certainly does not contemplate discriminatory treatment, and since the

3

defendants do not argue that it does, compliance with the CBA cannot temper the potential

4

‘outrageousness’ of the alleged conduct”), with Wood v. Pacific Gas & Elec. Co., No. C-00-0052,

5

2000 U.S. Dist. LEXIS 6120, at *9-10 (N.D. Cal. Apr. 25, 2000) (concluding that claim for

6

intentional infliction of emotional distress was preempted because the claim arose “from the same

7

circumstances as his disability discrimination and retaliation claims” and “the CBA sets forth

8

specific standards concerning actions which are the basis of Plaintiff’s disability discrimination and

9

retaliation claims”). This is not a case where “[t]he outrageousness of [the Union’s actions] could
depend on whether the behavior violated the terms of the CBA.” Miller v. AT&T Network Sys., 850

11
For the Northern District of California

United States District Court

10

F.2d 543, 551 (9th Cir. 1988) (finding preemption “[b]ecause the emotional distress claim requires

12

consideration of [the] reasonableness of AT&T’s behavior, which in turn could depend on whether

13

that behavior violated the collective bargaining agreement”); see also Cook v. Lindsay Olive

14

Growers, 911 F.2d 233, 239 (9th Cir. 1990) (finding preemption because, “[f]or this court to

15

determine whether LOG acted outrageously in firing him would require us to evaluate, as the

16

grievance committee did, whether LOG complied with the terms of the CBA regulating seniority

17

and work transfers”). Again, the focus is on discriminatory treatment, rather than the substantive

18

provisions of the CBA.

19

2.

20

That § 301 preemption is not applicable, however, does not end the analysis. As noted

Section 9 of the NLRA

21

above, the Union also argues preemption pursuant to § 9 of the NLRA. Section 9 provides in

22

relevant part as follows:

23
24
25

Representatives designated or selected for the purposes of collective
bargaining by the majority of the employees in a unit appropriate for
such purposes, shall be the exclusive representatives of all the
employees in such unit for the purposes of collective bargaining in
respect to rates of pay, wages, hours of employment, or other
conditions of employment . . . .

26
27

29 U.S.C. § 159(a). Courts have held that § 9 gives rise to a duty on the part of union to fairly

28

represent its members.

10

1

As the exclusive bargaining representative of the workers, the union
has “‘a duty to exercise [its] power in their interest and behalf.’” “[A]
union breaches its duty of fair representation if its actions are either
‘arbitrary, discriminatory, or in bad faith.’” “The duty of fair
representation is thus akin to the duty owed by other fiduciaries to
their beneficiaries.”

2
3
4
5
6

Simo v. Union of Needletrades, 316 F.3d 974, 981 (9th Cir. 2003).
Contrary to what Ms. Martinez argues, the Ninth Circuit has held that there can be

7

preemption of state law claims when they implicate the duty of fair representation. In Adkins v.

8

Mireles, 526 F.3d 531 (9th Cir. 2008), the Ninth Circuit expressly so held.2 More specifically, the

9

court held that
[t]he federal statutory duty which unions owe their members to
represent them fairly also displaces state law that would impose duties
upon unions by virtue of their status as the workers’ exclusive
collective bargaining representative. . . . To bring a successful state
law action, aggrieved workers must make a showing of additional
duties, if they exist, beyond the normal incidents of the unionemployee relationship. Such duties must derive from sources other
than the union’s status as its members’ exclusive collective bargaining
representative, such as an express provision of the collective
bargaining agreement or a collateral contract.

11
For the Northern District of California

United States District Court

10

12
13
14
15
16

Id. at 539-40; see also BIW Deceived v. Local S6, Indus. Union of Mar. & Shipbuild’g Workers of

17

Am., 132 F.3d 824, 830 (1st Cir. 1997) (holding that “state law is preempted whenever a plaintiff’s

18

claim invokes rights derived from a union’s duty of fair representation”); Richardson v. United

19

Steelworkers of Am., 864 F.2d 1162, 1166-67 (5th Cir. 1989) (concluding that, “[b]ecause the

20

plaintiffs in this case alleged that the Union breached a duty that arose from its status as their

21

exclusive collective bargaining agent under the NLRA, [Supreme Court precedent] requires that this

22

duty be defined by federal law”; plaintiffs had sued the union for failing to warn them of the

23

employer’s statutory right to replace them).

24
25
26
27
28

a.

Discrimination Claims

Applying the standard laid out by the Ninth Circuit in Adkins, the Court holds that the
discrimination claims are not preempted by § 9 of the NLRA. The duty not to discriminate arises
2

Because the Ninth Circuit has so held, this Court need not entertain Ms. Martinez’s
argument that there should be no preemption because the duty of fair representation is a judicial
creation, and not a congressional one.

11

1

from a source other than the Union’s status as its members’ exclusive collective bargaining

2

representative – i.e., the duty under FEHA. While the duty of fair representation may also provide a

3

remedy for the alleged discrimination, that does not mean that the right to obtain a remedy based on

4

an independent source is thereby be negated and displaced. As the Ninth Circuit explained in

5

Ackerman v. Western Electric Co., Inc., 860 F.2d 1514 (9th Cir. 1988), FEHA conferred upon

6

employees certain rights not be discriminated against; just because the plaintiff “may also have

7

separate remedies under the bargaining agreement [e.g., the agreement included a general clause that

8

broadly prohibited discrimination on the basis of race, sex, age, disability, and so forth] makes no

9

difference.” Id. at 1517; see also Humble, 305 F.3d at 1009 (stating that, “just because a CBA
provides a remedy or duty related to a situation that is also directly regulated by non-negotiable state

11
For the Northern District of California

United States District Court

10

law does not mean the employee is limited to a claim based on the CBA”).

12

There is authority that supports the Union’s position that there should be preemption – for

13

example, Madison, 132 F. Supp. 2d at 1244, the main case upon which the Union relies. In

14

Madison, the court seemed to conclude that there should be preemption of the plaintiff’s

15

discrimination claims simply because the duty of fair representation already prohibits

16

discrimination. See id. at 1258 (noting that “[t]he federal duty of fair representation prohibits a

17

union from discriminating against any employee in fulfilling its representative functions[;]

18

Madison’s state discrimination claims concerning the negotiation of the CBA hiring provisions do

19

not seek to enforce obligations exceeding those imposed by federal law, and the claims are thus

20

subsumed within the duty of fair representation”). But, as noted above, under Ninth Circuit

21

precedence, just because the duty of fair representation may provide a remedy does not displace a

22

right to obtain a parallel remedy based on another source. Moreover, Madison is a pre-Adkins case

23

so it did not involve application of the standard articulated by the Ninth Circuit in Adkins. Finally,

24

from a policy standpoint, the Madison approach would be sweeping. State discrimination claims

25

would be all but eviscerated where the discrimination was conducted by a union in conjunction with

26

its representation activities vis-a-vis union members.

27
28

The Court acknowledges that there is post-Adkins authority that also favors the Union. For
example, in Guidry v. Marine Engineers, No. C 11-05347 CRB, 2012 U.S. Dist. LEXIS 25745 (N.D.

12

1

Cal. Feb. 28, 2012), Judge Breyer found that there was § 9 preemption of the plaintiff’s FEHA and

2

emotional distress claims because “his allegations stem[med] entirely from [the union’s] conduct on

3

his behalf” – i.e., the claims invoked rights derived from the union’s duty of fair representation. Id.

4

at *9. However, Judge Breyer did not apply the specific standard laid out by the Ninth Circuit in

5

Adkins. See id. at *7 (stating that “[t]he Ninth Circuit has not determined whether such a re-

6

characterization of a plaintiff’s state law claims is required when the claims challenge a union’s

7

representational activities”). The Court thus respectfully declines to follow Judge Breyer’s decision

8

in Guidry.

9

Notably, there is post-Adkins authority favorable to Ms. Martinez. In particular, Swain v.
Dywidag-Systems International USA, Inc., No. C 09-01096 JW, 2009 U.S. Dist. LEXIS 47263 (N.D.

11
For the Northern District of California

United States District Court

10

Cal. June 4, 2009), Judge Ware concluded that there was no § 9 preemption of the plaintiff’s FEHA

12

claims because “Plaintiff’s claims do not depend on [the union representatives’] duty of fair

13

representation. Rather, Plaintiff alleges that [the union representatives] engaged in conduct that

14

itself was discriminatory and constituted retaliation for her opposition to the conduct of Defendant

15

Dywidag [the employer].” Id. at *16-17 (emphasis added). This Court concludes that Swain is more

16

consistent with Adkins than Guidry.

17

b.

Claim for Intentional Infliction of Emotional Distress

18

While the Court concludes that the discrimination claims are not preempted pursuant to § 9,

19

it is a closer call on the emotional distress claim. Even though the emotional distress claim is based

20

on the alleged discrimination, the alleged outrageousness of the Union’s actions is, in essence,

21

predicated on its status as Ms. Martinez’s exclusive collective bargaining representative. See

22

Compl. ¶ 66 (alleging that the Union “engaged in outrageous conduct by discriminating against

23

Plaintiff based on her age and disability and failing to represent Plaintiff’s interests after 30 years of

24

membership in the union and despite her seniority for arbitrary, capricious[,] and/or discriminatory

25

reasons”).

26

Ms. Martinez contends that her claim nevertheless falls within the exception for preemption

27

articulated by the Supreme Court in Farmer v. United Brotherhood of Carpenters, 430 U.S. 290

28

(1977). In Farmer, the Supreme Court noted that it has

13

1

refused to apply the pre-emption doctrine to activity that . . . “was a
merely peripheral concern of the [federal law] [or] touched interests so
deeply rooted in local feeling and responsibility that, in the absence of
compelling congressional direction, we could not infer that Congress
had deprived the States of the power to act.”

2
3
4
5

Id. at 296-97.
Farmer, however, is of limited support to Ms. Martinez. In Farmer, a union member

6

brought a claim for intentional infliction of emotional distress against his union and its officials,

7

alleging that he was a victim of a studied campaign of personal abuse and harassment that included

8

frequent public ridicule, incessant verbal abuse, and discrimination in hiring referrals. The Supreme

9

Court emphasized that whether there should be preemption typically turns on whether the state has a
substantial interest in regulation of the conduct at issue and whether the state’s interest threatens

11
For the Northern District of California

United States District Court

10

undue interference with the federal regulatory scheme. See id. at 297, 300, 302. The Court

12

ultimately held that the plaintiff’s emotional distress claim was not preempted because “[n]o

13

provision of the National Labor Relations Act protects the ‘outrageous conduct’ complained of by

14

petitioner,” id. at 302 (noting that “there is no federal protection for conduct on the part of union

15

officers which is so outrageous that ‘no reasonable man in a civilized society should be expected to

16

endure it’”), and the state had “a substantial interest in protecting its citizens from the kind of abuse

17

of which [the petitioner] complained.” Id. The Court acknowledged that there was some potential

18

for interference with the federal regulatory scheme but concluded that it was “insufficient to

19

counterbalance the legitimate and substantial interest of the State in protecting its citizens.” Id. at

20

304. The Court indicated that the potential for interference was limited because whether the

21

petitioner suffered severe emotional distress as a result of the respondents’ conduct would not be

22

considered by the National Labor Relations Board for any unfair labor practice claim based on the

23

same conduct. See id. at 304. Likewise, “the state-court tort action [could] be adjudicated without

24

resolution of the ‘merits’ of the underlying labor dispute.” Id.

25
26
27
28

The problem for Ms. Martinez is that, in Farmer, the Supreme Court emphasized that there
should be preemption where there was
a realistic threat of interference with the federal regulatory scheme.
Union discrimination in employment opportunities cannot itself form
the underlying “outrageous” conduct on which the state-court tort

14

1

action is based; to hold otherwise would undermine the pre-emption
principle. Nor can threats of such discrimination suffice to sustain
state-court jurisdiction. It may well be that the threat, or actuality, of
employment discrimination will cause a union member considerable
emotional distress and anxiety. But something more is required before
concurrent state-court jurisdiction can be permitted. Simply stated, it
is essential that the state tort be either unrelated to employment
discrimination or a function of the particularly abusive manner in
which the discrimination is accomplished or threatened rather than a
function of the actual or threatened discrimination itself.

2
3
4
5
6
7

Id. at 305 (emphasis added). In the instant case, Ms. Martinez has not alleged outrageous conduct

8

based on anything but the discrimination itself.

9

preempted pursuant to § 9 of the NLRA.3

11
For the Northern District of California

United States District Court

10

The Court thus concludes that the claim for intentional infliction of emotional distress is

3.

12

For the foregoing reasons, the discrimination claims are not subject to either § 301

Summary on Preemption

13

preemption or § 9 preemption. As for the emotional distress claim, while it is not preempted under §

14

301, it is preempted under § 9. The Court therefore dismisses the emotional distress claim, but

15

without prejudice.

16

C.

17

State Law Discrimination Claims on the Merits
The Union argues that, even if the discrimination claims are not dismissed on preemption

18

grounds, they should still be dismissed for failure to state a claim for relief. More specifically, the

19

Union argues that the discrimination claims fail to meet the Twombly and Iqbal standard because the

20

allegations of discrimination are too conclusory. The Union acknowledges Ms. Martinez’s

21

allegation that the Union provided more favorable representation to younger and nondisabled

22

members in similar circumstances, see Heard v. Lockheed Missiles & Space Co., Inc., 44 Cal. App.

23

4th 1735, 1755 (1996) (noting that “proof regarding similarly situated employees outside the

24

protected class may be one way of raising an inference of intentional discrimination, [but] it is not

25
26
27
28

3

The Union has not argued that Ms. Martinez’s FEHA claims are preempted under Farmer.
Indeed, the Ninth Circuit has indicated that such claims would not be preempted under Farmer. See
Carter v. Smith Food King, 765 F.2d 916, 921 & n.6 (9th Cir. 1985) (stating that plaintiff’s “pendent
FEHA claims are not preempted by federal labor law,” even though other state tort claims would
be). Moreover, it appears that Farmer preemption would not be applicable to the FEHA claims
because FEHA “‘touche[s] interests . . . deeply rooted in local feeling and responsibility.’” Farmer,
430 U.S. at 296-97.

15

1

the only way”) (emphasis omitted), but contends still that more specifics are needed in order for

2

there to be a plausible inference of discriminatory intent.

3
4
5
6
7
8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18

In Marziano v. County of Marin, No. C-102740 EMC, 2010 U.S. Dist. LEXIS 109595 (N.D.
Cal. Oct. 4, 2010), this Court looked at a similar argument. It noted:
Ms. Marziano has done more than make a naked assertion that
similarly situated persons were treated more favorably. She has given
some specificity by asserting that similarly situated persons were
given the opportunity to telecommute while she was not. For some
courts, that kind of specificity is sufficient. See, e.g., Akins-Brakefield
v. Philip Envtl. Servs. Corp., No. 08-cv-710-DRH, 2010 U.S. Dist.
LEXIS 25067, at *34-35 (S.D. Ill. Mar. 17, 2010) (with respect to
claim pursuant to Equal Pay Act, taking note of plaintiff’s allegations
that, inter alia, “she complained to the HR specialist about the fact that
she had not been given the same raise as similarly situated male
employees, was later given a retroactive raise, but that the raise was
still not as much as the raises given to similarly situated male
employees”; finding “this sufficient to state claims for willful EPA
violations under Bell and Iqbal”); Williams v. USW, AFL-CIO, Local
7697, No. 1:09-cv-743, 2010 U.S. Dist. LEXIS 22295, at *13-14 (S.D.
Ohio Mar. 10, 2010) (finding Twombly problem where plaintiff failed
to allege, e.g., that “Local 7697 treated similarly-situated non-Black
employees who had pending grievances more favorably than [he] was
treated”; adding that “conclusory” assertion that “’younger workers
are treated more favorably’” was “an insufficient ‘formulaic recitation
of the element[] of a cause of action’”); Frank v. Potter, 1:08-CV00595, 2009 U.S. Dist. LEXIS 83990, at *19-20 (S.D. Ohio Sept. 15,
2009) (concluding that “Plaintiff does more than proffer conclusory
allegations that similarly-situated persons received different
treatment” – she “identifies her supervisors whom she alleges engaged
in discrimination” and the “specific actions they took” and “[s]he
alleges that both men and employees of a different race, AfricanAmerican, were treated differently”).

19
20
21
22
23
24
25
26
27
28

Admittedly, there are other courts who have concluded
otherwise. Some courts have suggested that a general statement that
similarly situated employees were treated more favorably even with
respect to a specific employment action is not enough – i.e., the
example needs to be fleshed out with more details. See, e.g., Francis
v. Giacomelli, 588 F.3d 186, 195-96 (4th Cir. 2009) (describing
African-American plaintiff’s allegation that “defendants have never
initiated or undertaken the actions of terminating employment and
physically removing [white] employee[s]” as “conclusory and
insufficient” and “nothing more than the sort of unadorned allegations
of wrongdoing to which Twombly and Iqbal are directed” in ruling that
plaintiff failed to “state a plausible claim for relief”); Myers v.
Maryland Auto. Ins. Fund, No. CCB-09-3391, 2010 U.S. Dist. LEXIS
80011, at *13 (D. Md. Aug. 9, 2010) (taking note of plaintiff’s
statement that “’[y]ounger employees did not receive similar negative
performance evaluations as Plaintiff, nor were they placed on a “three
month action plan”’” but ultimately concluding that this allegations
was too conclusory under Twombly because it was “unsupported by

16

1

any factual allegations, such as the employees to whom it refers, their
job titles, or how their performance allegedly was deficient”). Some
courts have gone even further and suggested that specific allegations
need to be made to demonstrate how the employees are similarly
situated. See, e.g., DeLoatch v. Harford County Bd. of Educ., No.
CCB-09-3125, 2010 U.S. Dist. LEXIS 47635, at *5-6 (D. Md. May
14, 2010) (noting that, “[a]lthough the complaint references Ms.
Hamilton, it does not allege that she was employed in a similar
capacity, had a comparable criminal history, or when and in what
manner her employment was terminated” and so “[t]his allegation is
therefore too general to establish that Ms. Hamilton was similarly
situated to Ms. DeLoatch or treated more favorably by the Board”).

2
3
4
5
6
7

The Court declines to take the latter approach. The former
approach is more reasonable because, as noted by one district court,
there is nothing about Federal Rule of Civil Procedure 8 which
requires the naming of names. See Frank, 2009 U.S. Dist. LEXIS
83990, at *19 (S.D. Ohio Sept. 15, 2009) (rejecting “Defendant[‘]s
critique[] [of] Plaintiff’s Title VII claims on the basis that she has
‘failed to allege a single similarly-situated individual’” because “the
Court does not find a requirement at the pleadings stage that Plaintiff
name names”).

8
9

11
For the Northern District of California

United States District Court

10

12
13

Id. at *27-30.

14

With respect to the case at bar, Ms. Martinez should not – as the Court held in Marziano – be

15

required to show how the favored union members were similarly situated; nor should she be required

16

to identify their names. However, the Court ultimately agrees with the Union that her discrimination

17

claims are too conclusory because she has not provided any specifics about what actions the Union

18

took that favored the union members referenced in the complaint. In the complaint, Ms. Martinez

19

simply refers in general terms to “more favorable treatment and representation.” Compl. ¶¶ 16, 30.

20

The Court therefore dismisses the discrimination claims for failure to state a claim for relief. The

21

dismissal is without prejudice.

22

D.

Claim for Breach of Duty of Fair Representation

23

1.

24

In addition to the state law claims, Ms. Martinez asserts a federal claim against the Union

Statute of Limitations

25

based on an alleged breach of the duty of fair representation. Ms. Martinez claims a breach of the

26

duty of fair representation because the Union

27
28

fail[ed] to investigate her claims against her employer, [gave her] false
and erroneous information and advice, fail[ed] to keep [her] apprised
of the status of the union’s actions and involvement regarding her

17

1
2

termination, and fail[ed] to pursue a grievance and/or arbitration on
her behalf without good faith and for arbitrary, capricious, and
discriminatory reasons.

3

Compl. ¶ 58. The Union argues first that the fair representation claim is time barred because the

4

conduct at issue took place at the latest by April 14, 2011, i.e., when Ms. Martinez resigned, but she

5

did not file her lawsuit until March 9, 2012, more than six months later. While a statute-of-

6

limitations assertion is an affirmative defense, a defendant may still raise a motion to dismiss based

7

on the defense if the running of the limitations period is apparent on the face of the complaint. See

8

Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980) (stating that, “[i]f the running of the

9

statute is apparent on the face of the complaint, the defense may be raised by a motion to dismiss”).
In the case at bar, the parties do not dispute that there is in fact a six-month limitations period

11
For the Northern District of California

United States District Court

10

for a fair representation claim. Under 29 U.S.C. § 160(b), an unfair labor practice charge must be

12

filed with the National Labor Relations Board within six months after the alleged unfair labor

13

practice took place. See 29 U.S.C. § 160(b) (providing that “no complaint shall issue [from the

14

Board] based upon any unfair labor practice occurring more than six months prior to the filing of the

15

charge with the Board and the service of a copy thereof upon the person against whom such charge

16

is made”). “In Del Costello v. Int’l Bhd. of Teamsters, 462 U.S. 151 (1983), the Supreme Court

17

concluded that the six-month period for making charges of unfair labor practice to the National

18

Labor Relations Board contained in section 10(b) of the NLRA [i.e., § 160(b)] should be applied to a

19

claim filed in a federal district court for a breach of a union’s duty of fair representation.” Kalombo

20

v. Hughes Market, Inc., 886 F.2d 258, 259 (9th Cir. 1989). Under Ninth Circuit law, “the six-month

21

period generally begins to run when an employee knows or should know of the alleged breach of

22

duty of fair representation by a union.” Galindo v. Stoody Co., 793 F.2d 1502, 1509 (9th Cir. 1986).

23

See, e.g., Harris v. Alumax Mill Products, Inc., 897 F.2d 400, 404 (9th Cir. 1990) (stating that

24

plaintiff’s “claims accrued no later than July 13, 1983, the date on which he was informed by a

25

Union representative that the Union would not pursue a grievance on his behalf”). Thus, the

26

question for the Court in the instant case is when Ms. Martinez knew or should have known of the

27

acts or failures to act by the Union.

28

18

1
2

a.

Failure to Investigate Ms. Martinez’s Claims

It is not clear from the face of the complaint whether or not the Union’s failure to investigate

3

Ms. Martinez’s claims is time barred. The Court needs more information as to what claims the

4

Union failed to investigate; only then can it begin to assess when Ms. Martinez knew or should have

5

known of the failure to investigate.

6

The Union argues that any failure to investigate must have preceded her resignation on April

7

14, 2011, but that is not necessarily true. For example, Ms. Martinez maintains that she did not

8

voluntarily resign but rather that she was constructively discharged. If Ms. Martinez claims that the

9

Union failed to investigate a claim that she was constructively discharged and on improper grounds,
then any investigation or failure to investigate would have had to take place after the constructive

11
For the Northern District of California

United States District Court

10

discharge. The Union contends that, clearly, Ms. Martinez voluntarily resigned, see Mot. at 13, but

12

that is a question of fact that should not be resolved at this juncture of the proceedings.

13

Given the lack of clarity in the complaint about what claims the Union failed to investigate,

14

the Court cannot conclude that the face of the complaint shows that the fair representation claim is

15

time barred. On the other hand, because there is a potential statute-of-limitations problem, the Court

16

concludes that a dismissal with leave to amend is appropriate. In the amended complaint, Ms.

17

Martinez must include specific allegations about what claims the Union failed to investigate and

18

when she learned of this failure.

19

b.

Giving Ms. Martinez False and Erroneous Information and Advice

20

Similar to above, the Union argues that, if it gave Ms. Martinez any false or erroneous

21

information or advice, it had to have acted prior to her resignation on April 14, 2011. But, as above,

22

it is possible that the Union’s challenged conduct took place after the resignation. For example, if

23

Ms. Martinez claims that she was given false and erroneous information and advice about how to

24

proceed with a grievance based on a constructive discharge, that would have had to take place after

25

the resignation. Similar to above, the Court needs more specifics about what false and erroneous

26

information and advice the Union gave in order for the Court to evaluate whether there is a time bar.

27

The Court acknowledges that, in her opposition, Ms. Martinez indicates that the false and erroneous

28

information and advice was given during the termination meeting held on April 14, 2011. See

19

1

Opp’n at 8 (indicating that the Union gave Ms. Martinez “false and erroneous information and

2

advice, during the termination meeting, held on April 14, 2011”) (emphasis added). But as the

3

opposition is not the complaint itself, the Court cannot say that, on the face of the complaint, there is

4

a time bar. The Court thus dismisses this part of the fair representation claim but with leave to

5

amend. Similar to above, Ms. Martinez must, in her amended complaint, include specific allegations

6

about what false and erroneous information and advice was given, when such information and

7

advice was given, and when she learned that the information and advice was false and erroneous.

8
9

c.

Failure to Keep Ms. Martinez Apprised

Ms. Martinez also claims a breach of the duty of fair representation because the Union
“fail[ed] to keep [her] apprised of the status of the union’s actions and involvement regarding her

11
For the Northern District of California

United States District Court

10

termination.” Compl. ¶ 58. As above, the Court needs more specificity from Ms. Martinez in order

12

to evaluate whether there is a time bar here. The Court therefore dismisses this part of the fair

13

representation claim but with leave to amend. In the amended complaint, Ms. Martinez must include

14

allegations about what specifically the Union failed to keep her apprised about and when she learned

15

of this failure.

16
17

d.

Failure to Pursue a Grievance and/or Arbitration

Finally, Ms. Martinez asserts a breach of the duty of fair representation on the basis that the

18

Union “fail[ed] to pursue a grievance and/or arbitration on her behalf.” Compl. ¶ 58. As a

19

preliminary matter, the Court takes note that it is not clear which grievance the Union allegedly

20

failed to pursue. Thus, once again, additional specificity is needed in order for the Court to evaluate

21

the statute-of-limitations argument. The Court therefore dismisses this part of the fair representation

22

claim but with leave to amend.

23

The Court notes that, to the extent Ms. Martinez may claim that that the Union failed to

24

pursue a grievance on the alleged constructive discharge, then the Court may have to address the

25

Union’s argument that the statute of limitations began to run on her date of “resignation” – i.e., April

26

14, 2011. If Ms. Harris asked the Union to pursue a grievance because the “resignation” was really

27

a constructive discharge, then her claim would begin to run only when she knew or should have

28

known that the Union was not going to pursue a grievance on a constructive discharge theory. See

20

1

Harris, 897 F.2d at 404 (stating that plaintiff’s “claims accrued no later than July 13, 1983, the date

2

on which he was informed by a Union representative that the Union would not pursue a grievance on

3

his behalf”).

4

The Union takes the position that, unless it actually “promised to represent [her] and then

5

failed to do so,” then she knew or should have known that the Union would not do anything as of the

6

date of her resignation. White v. Sloan, No. 08-3606 SECTION I/5, 2009 U.S. Dist. LEXIS 76915,

7

at *6 (E.D. La. Aug. 26, 2009). While the White case does support the Union’s position, it is not

8

binding authority on this Court. Moreover, the approach taken by the White court is not persuasive.

9

If anything, given a union’s status as the exclusive collective bargaining representative of its
members, it would seem that the operating presumption should be that the union would represent a

11
For the Northern District of California

United States District Court

10

member, absent an indication from the union that it would not take action on her behalf.4 As the

12

Ninth Circuit noted in Galindo, “where a union decides not to file a grievance[,] the cause of action

13

generally accrues when the employee learns or should have learned of the union’s decision.”

14

Galindo, 793 F.2d at 1509-10.

15

e.

16

Summary

The Court dismisses the fair representation claim in its entirety because of a potential time

17

bar. More specificity is needed from Ms. Martinez in order to establish that the statute of limitations

18

is not a bar to her claim. Ms. Martinez has leave to amend her claim and must include in her

19

amended complaint specifics about what the Union’s alleged failures were and when she learned of

20

those failures.

21

2.

22

The Court also dismisses without prejudice the fair representation claim because – with one

23

Claim for Breach of Duty of Fair Representation on the Merits

exception – Ms. Martinez has failed to allege how the Union’s actions that constituted a breach of its

24
25
26
27
28

4

The other case cited by the Union, Banks v. AmerenUE, No. 4:05CV00477 JCH, 2005 U.S.
Dist. LEXIS 25418 (E.D. Mo. Sept. 8, 2005), is not on point. In Banks, the court does not state what
the factual allegations underlying the plaintiff’s fair representation claim were. There is no
indication that the plaintiff asked the union to pursue a grievance on the resignation because it was
really a constructive discharge and that the union thereafter failed to pursue a grievance.

21

1

duty were arbitrary, discriminatory, on in bad faith.5 See Simo, 316 F.3d at 981 (noting that “[a]

2

union breaches its duty of fair representation if its actions are either ‘arbitrary, discriminatory, or in

3

bad faith”) (internal quotation marks omitted). The Union is correct in arguing that, “[t]o survive a

4

Rule 12(b)(6) motion, a duty of fair representation plaintiff must at least allege that the Union

5

engaged in arbitrary, discriminatory or bad faith conduct and offer some factual support for such

6

claims.” Goodman v. Port Auth. of N.Y. & N.J., No. 10 Civ. 8352, 2011 U.S. Dist. LEXIS 86010, at

7

*15 (S.D.N.Y. Aug. 4, 2011) (emphasis added). Thus, the bulk of Ms. Martinez’s fair representation

8

claim is flawed. For example, Ms. Martinez alleges that the Union gave her false and erroneous

9

information and advice but there is no allegation that the Union knowingly did so. Without such an
additional allegation, the Union could have negligently given false and erroneous information,

11
For the Northern District of California

United States District Court

10

which is not sufficient to sustain a claim for breach of the duty of fair representation. See Landry v.

12

Cooper/T. Smith Stevedoring Co., 880 F.2d 846, 852 (5th Cir. 1989) (stating that “[a] union does not

13

breach its duty of fair representation . . . through simple negligence or a mistake in judgment”). See,

14

e.g., Stevens v. Moore Business Forms, 18 F.3d 1443, 1447 (9th Cir. 1994) (stating that “negligence

15

in processing a grievance is insufficient to constitute a breach of the duty”). Similarly, there is

16

nothing to indicate that the Union’s failure to keep Ms. Martinez apprised was anything but the

17

result of simple negligence. There is no suggestion, for example, that the Union recklessly failed to

18

disclose critical information to Ms. Martinez. See Robesky v. Qantas Empire Airways, Ltd., 573

19

F.2d 1082, 1088-90 (9th Cir. 1978) (indicating that, even though “simple negligence” does not

20
21
5

22
23
24
25
26
27
28

A union’s actions are arbitrary “only if, in light of the
factual and legal landscape at the time of the union’s
actions, the union’s behavior is so far outside a wide
range of reasonableness as to be irrational.” A union’s
conduct is discriminatory when the union “without a
legitimate purpose, take[s] action favoring some of its
members at the expense of others.” A union acts in bad
faith when it “acts with an improper intent, purpose, or
motive. Bad faith encompasses fraud, dishonesty, and
other intentionally misleading conduct.”

Pilchman v. American Fed’n & Mun. Emples., No. 10 CV 4976 (KMW), 2011 U.S. Dist. LEXIS
111538, at *23-24 (S.D.N.Y. Sept. 29, 2011). See generally Beck v. UFCW, Local 99, 506 F.3d 874,
880 (9th Cir. 2007) (discussing the arbitrary, discriminatory, and/or in bad faith standard).

22

1

violate the duty of fair representation, recklessness can be considered arbitrary – and therefore

2

actionable – conduct).

3

As for the failure to pursue a grievance, a union is barred only from ignoring a meritorious

4

grievance or perfunctorily processing that grievance. See Vaca v. Sipes, 386 U.S. 171, 191 (1967)

5

(“accept[ing] the proposition that a union may not arbitrarily ignore a meritorious grievance or

6

process it in perfunctory fashion”); Castelli v. Douglas Aircraft Co., 752 F.2d 1480, 1483 (9th Cir.

7

1985) (stating that “a union may not arbitrarily ignore a meritorious grievance nor process it

8

perfunctorily”). “A union, however, need not process a meritless grievance.” Galindo, 793 F.2d at

9

1513; see also Landry, 880 F.2d at 852 (stating that a union “has an obligation to prosecute a
grievance with reasonable diligence unless it decides in good faith that the grievance lacked merit or

11
For the Northern District of California

United States District Court

10

for some other reason should not be pursued”). Assuming that Ms. Martinez is challenging the

12

failure to pursue the grievance on the constructive discharge, Ms. Martinez has failed to allege that

13

the failure to pursue the grievance constituted a breach of the duty of fair representation because the

14

grievance was meritorious. She has also failed to allege with any specificity how the grievance was

15

meritorious.

16

The only part of the fair representation claim as pled that is not problematic is that part of the

17

claim based on the Union’s alleged failure to investigate her claims. While a failure to pursue a

18

grievance may be justifiable because, e.g., it lacks merit, there is no rational basis for failing even to

19

investigate a union member’s claim. See Evangelista v. Inlandboatmen’s Union of Pac., 777 F.2d

20

1390, 1395 (9th Cir. 1985) (stating that “[a] union’s duty of fair representation includes the duty to

21

perform some minimal investigation, the thoroughness of which varies with the circumstances of the

22

particular case”; adding that “[t]he union must exercise special care in handling a grievance which

23

concerns a discharge, because it is the most serious sanction an employer can impose”); Peterson v.

24

Kennedy, 771 F.2d 1244, 1253-54 (9th Cir. 1985) (indicating that a union handles a grievance in an

25

improper perfunctory manner when it “fail[s] to conduct a ‘minimal investigation’ of a grievance

26

that is brought to its attention”); Thomas v. Little Flower For Rehab. & Nursing, 793 F. Supp. 2d

27

544, 548 (E.D.N.Y. 2011) (stating that, “[i]nsofar as a ‘minimal investigation’ can constitute a

28

23

1

breach of the duty of fair representation, an allegation of a failure to perform any investigation after

2

notice of a grievance plausibly alleges a breach of the duty of fair representation.”).

3

III.

4

CONCLUSION

For the foregoing reasons, the Court grants the Union’s motion to dismiss. More

5

specifically, the Court rules as follows:

6

(1)

7

the NLRA. However, the claims are dismissed on the merits because Ms. Martinez has simply

8

stated in conclusory terms that other union members received more favorable treatment and

9

representation. Ms. Martinez has leave to amend.

The state law discrimination claims are not preempted under § 301 of the LMRA or § 9 of

(2)

11
For the Northern District of California

United States District Court

10

dismissed without prejudice. Ms. Martinez has leave to amend but, in her amended complaint, she

12

must include allegations to put the claim within the Farmer exception to preemption.

13

(3)

14

Ms. Martinez must include specific allegations to address the potential time bar. In addition, she

15

must include specific allegations from which it may be inferred that the Union’s acts were arbitrary,

16

discriminatory, or undertaken in bad faith.

The emotional distress claim is preempted pursuant to § 9 of the NLRA. The claim is

The fair representation claim is dismissed with leave to amend. In the amended complaint,

17

The amended complaint shall be filed within thirty days from the date of this order.

18

This order disposes of Docket No. 7.

19
20

IT IS SO ORDERED.

21
22

Dated: July 5, 2012

23
_________________________
EDWARD M. CHEN
United States District Judge

24
25
26
27
28

24