Hoskin v. Premier Security Corporation

Filing 27

WRITTEN Opinion entered by the Honorable Virginia M. Kendall on 7/21/2011:For these reasons, the Court grants in part and denies in part Premier Securitys Motion to Dismiss. Counts I, II, and IV remain but the Court dismisses Count III. Entered by the Honorable Virginia M. Kendall on 7/21/2011.Mailed notice(tsa, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Virginia M. Kendall

CASE NUMBER

10 C 3018

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

7/21/2011

Hoskin vs. Premier Security

DOCKET ENTRY TEXT

For these reasons, the Court grants in part and denies in part Premier Security’s Motion to Dismiss. Counts I,
II, and IV remain but the Court dismisses Count III.

O[ For further details see text below.]

Docketing to mail notices.

STATEMENT
Plaintiff Daniel H. Hoskins (“Hoskins”) brought suit against his former employer, Premier Security
Corporation (“Premier Security”), alleging numerous claims surrounding his termination. He asserts Title VII
race discrimination (Count I); breach of contract because Premier Security fired him without complying with a
four-step disciplinary process outlined in the employee handbook (Count II); breach of contract because Premier
Security failed to pay him $11.60 an hour as the Collective Bargaining Agreement (“CBA”) required (Count III);
and breach of contract for Premier Security’s failure to give him the full amount of back pay owed (Count IV).
Premier Security moves to strike allegations in Count I asserting age discrimination and violations of the
Rehabilitation Act and 42 U.S.C. § 1983 because Hoskins did not raise them in his EEOC charge. In his response
brief Hoskins conceded that he is seeking only Title VII relief under Count I, not these other three grounds, so
the Court grants Premier Security’s Motion to Strike those allegations by agreement. Also, because they are not
available under Title VII, the Court strikes the reference in Count I to “liquidated/double damages.” Moreover,
Premier Security moves to dismiss in its entirety Counts II, III, and IV for two separate reasons: (1) the National
Labor Relations Act, 29 U.S.C. § 151 et seq., preempts these claims; and (2) the decision by the National Labor
Relations Board (“NLRB”) to dismiss Hoskins’s charge and not file a complaint bars relitigation under res
judicata and collateral estoppel. For the following reasons, the Court grants in part and denies in part Premier
Security’s Motion to Dismiss.
I.

Preemption

Premier Security argues that Counts II, III, and IV rely on activity protected by §7 or prohibited by §8 of
the NLRA and as such exclusive primary jurisdiction rests with the NLRB, not this Court. See Baker v. IBP, Inc.,
357 F.3d 685, 688 (7th Cir. 2004). “When an activity is arguably subject to § 7 or § 8 of the Act, the States as
well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the
danger of state interference with national policy is to be averted.” San Diego Bldg. Trades Council, Millmen’s
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STATEMENT
Union, Local 2020 v. Garmon, 359 U.S. 236, 245 (1959); U.S. v. Palumbo Bros., Inc., 145 F.3d 850, 861 (7th
Cir. 1998). “When, however, the activity in question also constitutes a breach a collective-bargaining agreement,
the Board’s authority ‘is not exclusive and does not destroy the jurisdiction of the courts in suits under [Labor
Management Relations Act] s 301.’” William E. Arnold Co. v. Carpenters Dist. Council of Jacksonville and
Victinity, 417 U.S. 12, 15-16 (1974) (quoting Smith v. Evening News Ass’n, 371 U.S. 195, 197 (1962)). The
LMRA § 301 exception to Garmon exists because Congress sought to leave enforcement of CBAs “to the usual
processes of law.” William E. Arnold Co., 417 U.S. at 16.
In general, NLRA § 7 involves the right of employees to join labor organizations and collectively bargain,
and NLRA § 8 prohibits the employer and labor union from employing unfair labor practices. See 29 U.S.C. §§
157, 158. While claims that implicate § 7 or § 8 of the NLRA are within the exclusive jurisdiction of the NLRB,
Premier Security does not identify a specific NLRA provision in either section that even “arguably” applies here.
Rather, Premier Security and Hoskins argue preemption in light of § 301, which “displaces any independent
federal or state cause of action when the claim concerns a legitimate labor dispute and involves the breach of a
collective bargaining agreement.” Palumbo, 145 F.3d at 864. A state claim is independent of a CBA for § 301
preemption purposes “as long as the state-law claim can be resolved without interpreting the agreement itself.”
Lingle v. Norgle Div. of Magic Chef, Inc., 486 U.S. 399, 410 (1988).
Hoskins alleges in Count II that Premier Security terminated him without resorting to the four-step
disciplinary procedure set forth in the employee handbook. Premier Security maintains that Article III of the CBA
controls the terms and conditions of employment and therefore the Court must interpret these provisions to
evaluate Hoskins’s claim. The CBA, however, only generally mentions that “discipline and discharge for cause
shall be vested solely in the Employer,” and it then lists examples of conduct constituting “just cause.” As pled,
Hoskins alleges breach of contract because Premier Security fired him without abiding by the four-step procedure
in the employee handbook, not the CBA. Interpretation or analysis of the CBA is therefore not helpful to
evaluating Count II. See Livadas v. Bradshaw, 512 U.S. 107, 123-24 (1994) (no preemption if “legal character”
of claim is “independent” from rights under the CBA). Similarly, Count IV alleges that Hoskins filed a grievance
against Premier Security in October 2008 after being terminated. Premier Security agreed as a result of the
grievance process to reinstate Hoskins with full back pay, seniority, and benefits. Hoskins alleges breach of
contract against Premier Security for failing to give him the full amount of back pay owed. Again, this breach
of contract claim hinges on the terms and validity of the grievance agreement, not the CBA. Premier Security
argues that the Court must “interpret” Article IV of the CBA, which sets $11.60 an hour as the minimum rate of
payment for employees, in deciding this claim. According to Hoskins’s Complaint, however, the specific
settlement agreement is the source of the contract breach; the CBA is not. Referring to the CBA in a cursory way
may factor into the analysis, but the Court would not have to actually “interpret” it.
In Count III, Hoskins alleges breach of contract for underpayment of wages because Premier Security
failed to pay him at least $11.60 an hour, as required by Article IV of the CBA. Hoskins alleges that the CBA
set the “wage rate” of employees at $11.60 and Premier Security failed to pay him at that rate. Unlike the other
counts, this claim alleges breach of the collective bargaining agreement itself. Preemption under § 301 covers
claims that require analysis of the CBA but also those that are “founded directly on rights created by [the]
collective-bargaining agreement.” In re Bentz Metal Prod. Co., Inc., 253 F.3d 283, 286 (7th Cir. 2001)
(emphasis added); see, e.g., Robinson v. U.S. Steel Corp., No. 2:10 CV 63, 2010 WL 3862532, at *4 (N.D. Ind.
Sept. 27, 2010) (a “direct challenge” to the CBA is preempted); Harrison v. Superior Carpet Installers, Inc., No.
01-0206, 2002 WL 243657, at *5 (S.D. Ind. Jan. 4, 2002) (“The court therefore concludes that Section 301 of the
LMRA preempts [plaintiff’s] claim for wages arising from an alleged breach of the applicable collective
bargaining agreement.”); cf. Pauley v. Ford Elec. and Refrigeration Corp., 941 F. Supp. 794, 803 (S.D. Ind. 1996)
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STATEMENT
(no preemption because plaintiff did not assert a breach of the CBA, or try to enforce a right created under the
CBA). Because § 301 preempts state law claims that involve an alleged breach of the CBA, the Court dismisses
Count III.
II.

Res Judicata and Collateral Estoppel

On March 12, 2010, Hoskins filed an unfair labor practice charge with the NLRB alleging that Premier
Security wrongfully terminated him. The NLRB Regional Director refused to issue a complaint and dismissed
the charge on April 30, 2010. Premier Security maintains that the doctrines of res judicata and collateral estoppel
prevent Hoskins from relitigating his claims here.
“When an administrative agency is acting in a judicial capacity and resolved disputed issues of fact
properly before it which the parties have had an adequate opportunity to litigate,” res judicata and collateral
estoppel apply. U.S. v. Utah Constr. & Mining Co., 384 U.S. 394, 422 (1966); Lightsey v. Harding, Dahm & Co.,
Inc., 623 F.2d 1219, 1221 (7th Cir. 1980) (agency decision has preclusive effect where there were disputed issues,
the agency acted in a judicial capacity, and the parties had an opportunity to litigate the issues before the agency).
But where the NLRB decides not to bring an action against the union, “[t]his is not an adjudication by the Board;
indeed, it [is] nothing more than an exercise by the General Counsel of his prosecutorial discretion, and as such
is entitled neither to be given collateral estoppel effect nor to be treated as an exercise of the Board’s primary
jurisdiction.” Miller Brewing Co. v. Brewery Workers Local Union No. 9, AFL-CIO, 739 F.2d 1159, 1166 (7th
Cir. 1984) (superseded by statute on other grounds); see, e.g., Slaughter v. Fred Weber, Inc., 570 F. Supp. 2d
1054, 1061 (S.D. Ill. 2008) (no collateral estoppel when NLRB decides there is insufficient evidence to issue an
unfair labor practices complaint). Here, no preclusive effect attaches to the decision by the NLRB Regional
Director to dismiss Hoskins’s charge. After all, it was not an adjudication, the parties did not have a chance to
argue disputed facts, and the NLRB’s decision was not judicially reviewable. See Augusta Bakery Corp. v.
N.L.R.B., 846 F.2d 445, 447 (7th Cir. 1988). The Court thus denies Premier Security’s Motion to Dismiss based
on these theories.
For these reasons, the Court grants in part and denies in part Premier Security’s Motion to Dismiss.
Counts I, II, and IV remain but the Court dismisses Count III.

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