Andino v. Kaiser Foundation Hospitals

Filing 21

ORDER Granting #14 Motion to Remand. Signed by Judge Claudia Wilken on 11/23/2011. (ndr, COURT STAFF) (Filed on 11/23/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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JOSE F. ANDINO,

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No. C 11-04152 CW

Plaintiff,

ORDER GRANTING
MOTION FOR REMAND

v.
KAISER FOUNDATION HOSPITALS,
Defendant.
________________________________/

United States District Court
For the Northern District of California

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INTRODUCTION

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Plaintiff Jose F. Andino brings eight causes of action

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against Defendant Kaiser Foundation Hospitals based on allegations

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that Defendant failed to pay overtime wages, provide second meal

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periods for shifts greater than twelve hours or pay additional

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wages in lieu of those meal periods, provide itemized wage

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statements, and timely pay wages upon termination.

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further alleges that Defendant engaged in unfair competition by

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failing to pay those wages.

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court and Plaintiff moves for remand.

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motion, and Plaintiff has filed a reply to the opposition.

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the reasons stated below, Plaintiff's motion for remand to state

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court is GRANTED.

Plaintiff

Defendant removed the case to federal
Defendant opposes the
For

BACKGROUND

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Plaintiff was employed by Defendant, pursuant to a collective

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bargaining agreement (CBA), as a patient transporter aide from May

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2008 through March 2011.

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Plaintiff alleges he was underpaid for shifts when he worked

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more than eight hours, both when his shifts started and ended on

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the same calendar day and when the shifts started on one calendar

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day and extended into the next.

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in Alameda County Superior Court: (1) underpayment of wages based

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on alleged improper rounding methodologies that used fractions of

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hours; (2) failure to pay all overtime wages; (3) failure to pay

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overtime wages when an eight hour shift begins on one calendar day

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continues into the next; (4) failure to provide meal periods or

He brought eight causes of action

United States District Court
For the Northern District of California

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pay in lieu thereof; (5) failure to provide accurate wage

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statements; (6) failure to pay wages owed at termination; (7)

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violation of California Business and Professions Code sections

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17200 et. seq.

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statutory damages for the preceding seven claims.

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Plaintiff's eighth listed cause of action claims

The CBA is between Defendant, its affiliated groups, and SEIU

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United Healthcare Workers West.

It provides that Defendant's

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Northern California employees shall be paid at the rate of time

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and one-half "for all hours of work performed in excess of eight

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(8) hours in any one work day and/or for all hours worked in

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excess of forty (40) within the work week."

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§ 1(C).

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"payroll week" as the "seven (7) day period beginning at 12:01

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a.m., Sunday, or at the shift changing hour nearest that time,"

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and it defines the term "payroll day" as "a twenty-four (24) hour

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period, beginning at the same time each Payroll Day as the Payroll

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Week begins."

Ex. A, Art. XII,

The preceding subsection of the CBA defines the term

Ex. A, Art. XII, § 2(B).

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Defendant opposes the motion to remand based on the argument

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that federal law preempts Plaintiff's third, fifth, sixth, and

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seventh causes of action.
DISCUSSION

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I. Legal Standard
A defendant may remove a civil action filed in state court to

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federal district court so long as the district court could have

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exercised original jurisdiction over the matter.

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§ 1441(a).

28 U.S.C.

Title 28 U.S.C. section 1447(c) provides that if, at

United States District Court
For the Northern District of California

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any time before judgment, it appears that the district court lacks

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subject matter jurisdiction over a case previously removed from

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state court, the case must be remanded.

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the scope of the removal statute must be strictly construed.

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v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).

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presumption' against removal jurisdiction means that the defendant

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always has the burden of establishing that removal is proper."

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Id.

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remanding the case to state court.

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On a motion to remand,
Gaus

"The 'strong

Courts should resolve doubts as to removability in favor of
Id.

"In general, district courts have federal-question

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jurisdiction only if a federal question appears on the face of a

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plaintiff's complaint."

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F.3d 1405, 1409 (9th Cir. 1998) (citing Louisville & Nashville R.

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Co. v. Mottley, 211 U.S. 149, 152 (1908)).

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is the master of the complaint, a court does not exercise original

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jurisdiction over a matter solely because a federal defense may be

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anticipated.

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Trust, 463 U.S. 1, 14 (1983).

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or she wishes to bring and may forgo federal claims.

Brennan v. Southwest Airlines Co., 134

Because the plaintiff

Franchise Tax Bd. v. Construction Laborers Vacation
A plaintiff chooses what claims he

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There is,

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however, an exception to the general rule: the artful pleading

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doctrine.

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inherently federal claim in state-law terms.

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1409.

Artful pleading exists where a plaintiff states an

DISCUSSION

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Brennan, 134 F.3d at

I.

Remand
Defendant moves to dismiss on the basis of federal pre-

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emption.

Section 301 of the LMRA provides federal jurisdiction

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over "[s]uits for violations of contracts between an employer and

United States District Court
For the Northern District of California

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a labor organization representing employees in an industry

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affecting commerce as defined in this chapter, or between such

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labor organizations."

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29 U.S.C. § 185(a).

The Supreme Court has stated that section 301 of the LMRA

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preempts equivalent remedies under state law and that "the

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preemptive force of section 301 is so powerful as to displace

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entirely any state cause of action 'for violation of contracts

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between an employer and a labor organization.'

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purely a creature of federal law, notwithstanding the fact that

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

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[section] 301."

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Vacation Trust, 463 U.S. 1, 23 (1983); see also Caterpillar Inc.

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

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Any such suit is

Franchise Tax Bd. v. Construction Laborers

A state law claim is completely preempted by section 301 of

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the LMRA if resolution of the claim requires the interpretation of

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a collective bargaining agreement.

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Chef, Inc., 486 U.S. 399, 413 (1988).

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founded directly on rights created by collective-bargaining

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agreements, and claims 'substantially dependent on analysis of a
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Lingle v. Norge Div. of Magic
"Section 301 governs claims

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collective-bargaining agreement.'"

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(citation omitted); Allis-Chalmers Corp. v. Lueck, 471 U.S. 202,

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220 (1985) (tort claim preempted because extent of employer's duty

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of good faith depends on terms of collective bargaining

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agreement).

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Caterpillar, 482 U.S. at 394

Preemption under section 301 will not apply, however, in all
instances in which a collective bargaining agreement is present.

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Section 301 preemption does not apply where a state-law remedy is

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independent of a collective bargaining agreement in the sense that

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United States District Court
For the Northern District of California

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resolution of the state-law claim does not require construing the

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collective bargaining agreement.

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Section 301 does not preempt state-law causes of action simply

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because they require analysis of the same facts that would be at

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issue in a section 301 claim, Lingle, 486 U.S. at 408-09, or

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because the court must refer to the collective bargaining

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agreement, as opposed to interpreting its terms, in order to

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decide the claim.

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(1994).

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independently of private agreements, and that as a result can be

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waived or altered by agreement of private parties, are preempted

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by those agreements."

Lingle, 486 U.S. at 407.

Livadas v. Bradshaw, 512 U.S. 107, 123-24

Only state-law causes of action "that do not exist

Lueck, 471 U.S. at 213.

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A. Overtime Claims

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Defendant asserts that the third cause of action for non-

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payment of overtime requires interpretation of the CBA.

Defendant

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casts the issue as whether a workday is a calendar day or the

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twenty-four hour period containing an entire eight-hour work

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shift.

The effect of Defendant's interpretation is that an eight-

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hour shift could span two workdays and not trigger overtime pay

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for hours worked in excess of eight hours in a single shift.

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Another judge in this district considered a similar issue in

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2007, and found that the plaintiff properly alleged a claim for

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failure to pay overtime, where an employer set the beginning of

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the workday at the middle of a shift.

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employer cannot circumvent the overtime pay provisions of the

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California Labor Code by starting the workday in the middle of a

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shift that would otherwise require overtime pay.

The court ruled that an

In re Wal-Mart

United States District Court
For the Northern District of California

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Stores, Inc. Wage and Hour Litigation, 505 F. Supp. 2d 609, 617

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(N.D. Cal. 2007).

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laws are remedial" and should "be construed so as to promote

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employee protection."

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"Eight hours of labor constitutes a day's work," as indicating the

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legislature's intent that "a shift of more than eight hours of

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consecutive work qualifies for overtime pay."

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overtime does not depend on an interpretation of the term

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"workday" as provided by the CBA.

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The court stated that "California's overtime

The court read Labor Code section 510(a),

Id.

The right to

California Labor Code section 514 is an exemption providing

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that sections 510 and 511, which establish the overtime

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requirements, "do not apply to an employee covered by a valid

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collective bargaining agreement if the agreement expressly

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provides for the wages, hours of work, and working conditions of

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the employees, and if the agreement provides premium wage rates

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for all overtime hours worked and a regular hourly rate of pay for

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those employees of not less than [thirty] percent more than the

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state minimum wage."

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is only available when overtime is paid for "all overtime hours

Section 514 provides that the CBA exemption

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worked."

As the court in Gregory v. SCIE explained, whether

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overtime is paid for "all overtime hours worked" is based on a

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state right and requires an interpretation of state law, even

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where the CBA provided for a premium wage rate.

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1053 (9th Cir. 2003).

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rate over the state minimum, the right to overtime pay is a state

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right, regardless of rate.

317 F.3d 1050,

While the CBA here establishes a premium

B. Accurate Wage Statements and Wages Owed at Termination

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Plaintiff's fifth and sixth claims are for violations of

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United States District Court
For the Northern District of California

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California Labor Code sections 203, 226(a) and 1174, and IWC Wage

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Order section 5-2002(7).

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226 claim requires "knowing and intentional" failure to provide

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accurate wage statements and a section 203 claim requires a

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finding that a defendant willfully failed to conform to the

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statute, a fact finder would have to interpret the CBA to

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determine whether Defendant reasonably believed that it owed no

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additional pay.

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does not require interpretation of the contract terms.

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the line between reference to and interpretation of an agreement

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may be somewhat hazy, merely referring to an agreement does not

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threaten the goal that prompted preemption--the desire for uniform

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interpretation of labor contract terms."

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Television Station, Inc., 998 F.2d 743, 749 (9th Cir. 1993).

Defendant argues that because a section

This might require reference to the CBA, but it
"Although

Ramirez v. Fox

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C. Unfair Competition

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Plaintiff alleges that Defendant engaged in unfair

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competition in violation of California Business and Professions

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Code sections 17200 et. seq. by underpaying wages, allowing it to

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gain an unfair advantage over other comparable companies doing
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business in the state.

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claim would require an interpretation of the CBA and even its

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bargaining history, to determine whether it is fair "to schedule a

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workday in a manner that causes some employees to work in two

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different 'workdays' when they work a single shift" and whether

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parties to the CBA gave fair value for those provisions.

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10.

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to employees or the fairness of the bargaining process.

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allegation of unfair competition under California Business and

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United States District Court
For the Northern District of California

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Professions Code section 17200 et. seq. involves examining the

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allegedly unfair practice's "impact on the alleged victim,

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balanced against the reasons, justifications, and motives of the

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alleged wrongdoer,"

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Cal.App.3d 735, 740 (1980), not the value of any purported

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concessions in reaching the terms of the CBA.

Opp. at

But the claim is about fairness to competitors, not fairness
An

Motors, Inc. v. Times Mirror Co., 102

CONCLUSION

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Defendant argues in response that the

For the foregoing reasons, Plaintiff's motion for remand is

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GRANTED.

The Clerk shall remand the case to the Alameda County

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Superior Court.

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IT IS SO ORDERED.

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Dated: 11/23/2011

CLAUDIA WILKEN
United States District Judge

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