Local Union No. 369 et al v. Kentucky Association of Electric Cooperatives, Inc. et al

Filing 18

MEMORANDUM OPINION & ORDER granting 14 Motion to Remand. Signed by Senior Judge Thomas B. Russell on 3/14/2013. cc:counsel (KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CASE NO. 3:12-CV-000847
LOCAL UNION NO. 369 OF THE
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL-CIO-CLC,
by and through its individual members,
MARVIN FACKLER, LAMONT RUDOLPH
DEMETRIOUS DAVIS, TERRY SHUMAKE,
JUAN A. ROSA,
and a class of others similarly situated

PLAINTIFFS

v.
KENTUCKY ASSOCIATION OF
ELECTRICAL COOPERATIVE, INC.,
MICHAEL KOHLER, and TAIB
TIKVESA

DEFENDANTS

MEMORADUM OPINION AND ORDER
This matter comes before the Court on the Plaintiffs’ motion to remand this action to state
court. (Pls.’ Mot., Docket Number (“DN”) 14.) The Defendants have responded. (Defs.’ Resp.,
DN 15.) The Plaintiffs have replied. (Pls.’ Reply, DN 17.) Fully briefed, the matter is now ripe
for adjudication. For the following reasons, the Plaintiffs’ motion is GRANTED.
I.
Faced with a motion to remand, the issue before the Court is whether it lacks jurisdiction
to hear the Plaintiffs’ state law claims or whether those claims are preempted by federal law,
specifically the Labor Relations Management Act (“LMRA”), 29 U.S.C. § 185 (referred to
hereinafter as “LMRA § 301” or “§ 301”). The Court holds that it lacks federal question
jurisdiction because the state law claims asserted by the Plaintiffs do not require an interpretation
of the CBA and are not based on rights created by the terms of the agreement. To the extent that
that Plaintiffs’ claims may relate to the collective bargaining agreement, that relationship is
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merely tangential. Because these claims may be resolved without interpretation of the collective
bargaining agreement and do not rely on rights created therein, the state law claims are not
preempted by LMRA § 301, the Court lacks federal question jurisdiction pursuant to 28 U.S.C. §
1331, and the Defendants improperly removed.
II.
The Plaintiffs are employed at a manufacturing plant owned by Defendant Kentucky
Association of Electric Cooperatives, Inc. (“KAEC”). They are represented in this action by
Local Union No. 369 of the International Brotherhood of Electrical Workers, AFL-CIO-CLC
(“Local 369”). Local 369 negotiated a collective bargaining agreement (“CBA”) with KAEC
that governs the terms of the Plaintiffs’ employment. According to the Plaintiffs, the existence of
the CBA is irrelevant to the present proceedings because they do not seek to enforce or otherwise
recover pursuant to their contractual rights arising under the CBA. Rather, they claim that their
four-count complaint against KAEC and two of its employee supervisors, Michael Kohler
(“Kohler”) and Taib Tikvesa (“Tikvesa”), alleges only violations of Kentucky state law. The four
counts are: (1) intentional infliction of emotional distress, (2) negligent retention, (3), negligent
supervision, and (4) violation of the Kentucky Civil Rights Act (“KCRA”), KRS § 344.010 et
seq.
The Plaintiffs filed this action in the Jefferson County Circuit Court on November 30,
2012. Soon thereafter, the Defendants removed to federal court. In their notice of removal, the
Defendants recognized that the four counts stated in the Plaintiffs’ complaint were alleged
pursuant to Kentucky law. (See Notice of Removal, DN 1, ¶ 6.) Nevertheless, the Defendants
removed on the theory that at least one, if not all of the counts, is preempted by LMRA § 301. If
the Plaintiffs’ claims are preempted by § 301, then this Court may properly exercise jurisdiction

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because a federal question is present. Accordingly, whether this case should be remanded for
lack of subject-matter jurisdiction turns on whether the Plaintiffs’ claims are preempted by
LMRA § 301.
III.
Section 301 of the LMRA, 29 U.S.C. § 185(a), vests district courts with original
jurisdiction over “[s]uits for violation of contracts between an employer and a labor organization
representing employees.” As a result, § 301 generally preempts state laws covering the same
subject, and cases falling within § 301 may be brought in or removed to federal court “without
respect to the amount in controversy or without regard to the citizenship of the parties.” 29
U.S.C. § 185(a). Section 301 is not without boundaries, however. Whether a case is preempted
by § 301 often turns on whether the allegations require an interpretation of a CBA. “Section
301’s sphere of complete pre-emption extends to state law claims that are ‘substantially
dependent on analysis of a collective bargaining agreement,’ but does not reach claims that only
‘tangentially involve CBA provisions.’” Alongi v. Ford Motor Co., 386 F.3d 716, 724 (6th Cir.
2004) (quoting Fox v. Parker Hannifin Corp., 914 F.2d 795, 799-800 (6th Cir. 1990)). In other
words, “state courts may evaluate state law claims ‘involving labor-management relations only if
such [claims] do not require construing collective-bargaining agreements.’” DeCoe v. Gen.
Motors Corp., 32 F.3d 212, 216 (6th Cir. 1994) (quoting Lingle v. Norge Div. of Magic Chef, Inc.,
486 U.S. 399, 411 (1988)).
The Sixth Circuit follows a two-pronged approach for determining whether § 301
preemption applies. “First, the district court must examine whether proof of the state law claim
requires interpretation of collective bargaining agreement terms.

Second, the court must

ascertain whether the right claimed by the plaintiff is created by the collective bargaining

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agreement or by state law.” Id. (citations omitted). If the right arises under state law “and does
not invoke contract interpretation, then there is no preemption. However, if neither or only one
criterion is satisfied, section 301 preemption is warranted.” Id. If, under the first prong, “the
plaintiff can prove all the elements of his claim without the necessity of contract interpretation,
then his claim is independent of the labor agreement.” Id. (citing Dougherty v. Parsec, Inc., 872
F.3d 766, 770 (6th Cir. 1989)). Furthermore, “neither a tangential relationship to the CBA, nor
the defendant’s assertion of the contract as an affirmative defense will turn an otherwise
independent claim into a claim dependent on the labor contract.” Id. (citing Fox, 914 F.2d at
800). Thus, even on remand, a defendant can assert an affirmative defense under the CBA, but
that defense is not grounds for removal.
IV.
To determine whether § 301 preemption is applicable in this action, the Court examines
each of the Plaintiffs’ causes of action. Normally, the Court need only find one basis for federal
question jurisdiction in order to exercise supplemental jurisdiction over the other pending claims.
See 28 U.S.C. § 1441(c)(1). In this case, however, the Plaintiffs have represented that they will
consider dismissing any claim that the Court finds preempted in order to facilitate remand. As a
result, the Court fully examines each claim to determine which may be preempted.
A.
The Plaintiffs’ first cause of action is for the intentional infliction of emotional distress
(“IIED”). They alleged that KAEC’s supervisors, Kohler and Tikvesa, engaged in conduct at the
manufacturing facility that was “extreme, outrageous, intolerable, and offensive,” which caused
them severe emotional distress. (Compl., DN 1-6, ¶¶ 23, 25.) For example, the supervisors
allegedly screamed in employees’ faces at great lengths, ordered them to engage in unsafe

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activity, overtly and impliedly threatened them with retaliation, were demeaning to those of
different racial or ethnic backgrounds, and even challenged the employees to physical
confrontations. (Id. at ¶ 13.) In their response to the motion to remand, the Defendants do not
claim that the Plaintiffs’ right to pursue an IIED claim arises from the CBA. Rather, they argue
that even though IIED is a state law claim it cannot be resolved without reference to the terms of
the CBA, thereby triggering § 301 preemption.
In Kentucky, the elements of IIED are: “[1] intentional or reckless conduct; [2] conduct
that is outrageous and intolerable because it offends against generally accepted standards of
decency and morality; [3] a causal connection between the conduct and emotional distress; and
[4] emotional distress which is severe.” Childers v. Geile, 367 S.W.3d 576, 579 (Ky. 2012)
(brackets added) (citing Craft v. Rice, 671 S.W.3d 247, 249 (Ky. 1984)). The parties’ arguments
as to whether the IIED claim is preempted by § 301 focus on the second element. The Plaintiffs
argue that whether the conduct is outrageous is to be measured by “generally accepted standards
of decency and morality,” which in no way triggers, relies upon, or otherwise requires an
interpretation of the CBA. The Defendants, on the other hand, claim that “generally accepted
standard of decency and morality” are not judged against the duty owed to the public at large, but
by the “context” of the relationship between the defendant and the plaintiff asserting IIED, and
the context of the parties’ relationship in this case is set forth in the CBA. The parties rely on
numerous cases to support their positions.

Having reviewed the various cases, the Court

discusses those that are most relevant. Ultimately, the Court finds that the Plaintiffs’ IIED claim
is not preempted by § 301 because the claim arises from conduct falling outside of the scope of
the CBA and does not require an interpretation of its provisions.
The Plaintiffs point the Court to cases where IIED claims have not been preempted by §

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301. In O’Shea v. Detroit News, 887 F.2d 683, 684 (6th Cir. 1989), the plaintiff brought a
number of claims, including an IIED claim, against the defendant on behalf of her deceased
husband. A CBA governed the decedent’s employment with the defendant. Id. at 685. On
appeal, the Sixth Circuit Court of Appeals affirmed remand of the IIED claim because it was
“based on allegations independent of any alleged violation of the [CBA].” Id. at 687. The court
rejected the defendant’s argument that the IIED claim was founded on the decedent’s allegation
that he had been wrongfully demoted. The CBA governed demotions, but “[s]tate . . . tort
claims, however, are not the right vehicle for determining whether an employee was in fact
demoted.” Id. at 686. Accordingly, whether the decedent was wrongfully demoted was an
independent question from whether the defendant inflicted emotional distress upon the decedent,
and “the [defendant] could have tortuously caused [the decedent] emotional distressed without
violating the contract.” Id. at 687. A claim concerning the decedent’s demotion would have
fallen under the CBA and triggered § 301 preemption, but because the IIED claim did not rely on
the demotion, the terms of the CBA were not implicated.
The case of Daulton v. Jefferson Smurfit Corp., 979 F. Supp. 1187, 1190-92 (S.D. Ohio
1997), grew out of allegations of racial discrimination by Daulton’s supervisor, which went so
far as to include threats of physical violence. Among other claims, Daulton filed suit for IIED,
and the defendant argued that the claim was preempted because a CBA governed the events. As
in the present case, the court found that the IIED claim “turn[ed] upon whether the second
element [of IIED], that the defendant acted outrageously, required interpretation of the [CBA].”
Id. at 1200. “[I]f the allegedly outrageous conduct was the result of the [d]efendant exercising a
right provided for under the [CBA], then Daulton’s [IIED] claim is preempted.” Id. at 1201. The
court ultimately found that “[t]he racial slurs, the threats of physical violence, and the

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endangerment of Daulton’s life through the misuse of the cherry-picker all exist without the
imprimatur of rights provided in the [CBA].” Id. In other words, nothing in the CBA granted
the defendant the right to participate in the conduct Daulton alleged was outrageous. Therefore,
the IIED claim did not require interpretation of the CBA and was not preempted by § 301. Id.
(“As the outrageous conduct that forms the basis of the [IIED] claim was not the result of [the
defendant] exercising his rights under the [CBA], § 301 does not apply.”).
Finally, the Plaintiffs rely on Peterson v. BMI Refractories, 132 F.3d 1405 (11th Cir.
1998). In that case, the Eleventh Circuit Court of Appeals reversed the district court’s finding
that the IIED claim alleged by the plaintiffs was preempted by § 301. Id. at 1408. Like the
present case, Peterson arose out of alleged racial discrimination and threats of violence. Id. at
1408-09.

On appeal, the defendant argued that determining whether the conduct of its

employees was outrageous required an interpretation of the governing CBA. Id. at 1413. The
court disagreed, however, because the type of actions at issue – “racial taunts, an assault with a
pistol,” and physical violence – “cannot arguably be sanctioned by the terms of the CBA at issue,
and as such a resolution of [the IIED] claim does not implicate the provision of the CBA.” Id. at
1413. Unless the conduct was somehow sanctioned by the CBA, then it could not be preempted
by § 301.
Sanctioning of the defendant’s conduct under the terms of the CBA distinguishes Barbo v.
Kroger Co., 3:07-CV14-S, 2007 WL 2350181 (W.D. Ky. Aug. 7, 2007) (Simpson, J.) – a case the
Defendants rely on heavily – from the present case. In Barbo, the plaintiff asserted IIED was
caused by a hidden video camera the defendant company installed in the men’s restroom. Id. at
*1. Although never admitting to installing the camera, the defendant asserted that “if such
installation occurred, it had a legal right under the CBA to mount the camera.” Id. The court

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went on to list several specific terms of the CBA that may have authorized the defendant to
install the camera.

See id.

These terms included provisions that the defendant: (1) was

“committed to maintaining a safe work environment”; (2) could institute disciplinary actions for
“dishonesty, drug use and unauthorized work stoppage”; (3) established “the number and
duration of employee rest periods”; and (4) had “complete control over the management of its
business and its workforce.” Id. The court concluded “the elements of [IIED] will require us to
interpret the CBA.” Id. at *2. Accordingly, whether the defendant’s conduct was outrageous for
the purposes of IIED would turn on the interpretation of these provisions and was therefore
preempted by § 301. “If by mounting the camera, [the defendant] was merely pursuing [its] legal
rights under the CBA, such conduct cannot be characterized as extreme and outrageous for the
purposes of establishing [IIED].” Id.
In the present case, the Defendants claim that Article 4 of the CBA, entitled
“Management Rights,” is applicable and must be interpreted in order to determine whether the
supervisors’ conduct was outrageous for the purposes of the Plaintiffs’ IIED claim.

The

Defendants specifically rely on the following except from Article 4:
The operation, control and management of [KAEC’s] facilities and operations,
and all business activities of [KAEC] in connection therewith are covered or
affected by this Agreement, and the supervision and direction of the working
forces at such facilities, operations and business are and shall continue to be
solely and exclusively the functions and rights of the management of [KAEC].
(CBA, DN 1-2, p. 6 (emphasis added).) The Defendants argue that the foregoing language must
be interpreted in order to determine whether the supervisors’ conduct was outrageous, thereby
preempting the state law claim. The Court is not persuaded for two reasons. First, the excerpt
cannot reasonably be read to cover the activity alleged by the Plaintiffs. Among other things,
they claim that the supervisors berated the employees, ordered them to engage in unsafe

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activities, threatened retaliation, made derogatory racial and ethnic remarks, and even challenged
the employees to physical fights. (See Compl., DN 1-6, ¶ 13.) No reasonable interpretation
could place these actions within the “supervision and direction of the working forces” at KAEC.
The Defendants simply have not shown how the excerpt from Article 4 can or should be
interpreted to cover their alleged conduct.
Second, portions of Article 4 not quoted by the Defendants show that the actions alleged
by the Plaintiffs do not fall within the scope of the provision. Regarding employment practices,
Article 4 provides:
[T]his [CBA] does not affect and shall not be deemed or construed to impair or
limit in any way [KAEC’s] right in its sole discretion and judgment, to . . . [1]
determine the size and composition of the working force covered by this [CBA],
and assignment of work, and policies affecting the selection of employees; [2]
establish and enforce quality, production, construction and services standards for
its employees, services and products; . . . [3] establish and change production and
work performance standards; [4] change, combine, establish or discontinue jobs
or operations, set wage rate for such jobs or operations, and determine when and
if vacancies in the working force shall be filed; . . . [and 4] determine the hours of
operation . . . .
(CBA, DN 1-2, p. 3 (brackets added).) A reading of all relevant portions of Article 4 more
clearly establishes what is covered by “Managerial Rights.” None of the actions alleged by the
Plaintiffs could reasonably fall under these provisions. The Plaintiffs’ IIED claim is in no way
reliant on a reading or interpretation of Article 4 of the CBA.
Other cases relied on by the Defendants are distinguishable from the present action.
First, Pratt v. Brown Mach. Co., a Div. of John Brown, Inc., 855 F.2d 122 (6th Cir. 1988), and
Smith v. Franklin Cnty., 227 F. Supp. 2d 667 (E.D. Ky. 2002) were cases involving IIED claims,
but no CBA was at issue, and the courts did not analyze whether the IIED claims were preempted
by § 301. Second, Mattis v. Massman, 355 F.3d 902 (6th Cir. 2004), is more on point, but is also
distinguishable. There, the court of appeals reversed the district court and found that the IIED
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claims was preempted by § 301. Id. at 904. The court did so because the plaintiff’s allegations
“all involve[d] workplace actions taken under the ostensible authority of the CBA, and seems to
be a subtle attempt to present contract claims in tort clothing.” Id. at 908. Specifically, the
plaintiff claimed that the defendant supervisor “ignored his seniority rights in assigning him jobs,
failed to train him properly, assigned him the most strenuous jobs, prevented him from receiving
his pay on time, reduced his vacation days, and punished [the plaintiff] for using the company
phone.” Id. All of these actions were more in the nature of a contract than a tort. Accordingly,
“[w]ithout reference to the CBA, we could not possibly know whether [the defendant supervisor]
acted outrageously or was merely insisting on his legal rights as a supervisor charged with
ensuring compliance with the rules of the factory.” Id. In the present case, the alleged actions by
the Defendants are not a “subtle attempt to present contract claims in tort clothing.” Mattis is
distinguishable because the plaintiff’s IIED claim relied on the defendant’s actions that were
“taken under the ostensible authority of the CBA.” Id. As examined above, however, none of
the actions alleged by the Plaintiffs fall within the relevant provisions of the CBA.
Finally, Lemaster v. Anchor Hocking, LLC, No. 2:11-CV-549, 2012 WL 3224094 (S.D.
Ohio Aug. 6, 2012), is distinguishable for many of the same reasons. In Lesmaster the court
found that the plaintiff’s “termination is the basis of his IIED claim.” Id. at *5. Determining
whether the plaintiff’s termination was “‘extreme and outrageous’ . . . would require the Court to
interpret the CBA” because the manner and method of termination was provided for therein. Id.
For this reason, the court found that termination was “governed by the terms of the CBA.” Id.
Again, in the present case, the conduct alleged of the Defendants cannot reasonably be found to
be governed, approved, or sanctioned by the CBA because it does not fall within the agreement’s
terms.

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Overall, the Court finds, based on the facts of this case, that prosecution of the Plaintiffs’
claim for the intentional infliction of emotional distress does not require reference to or
interpretation of the CBA. Therefore it is not preempted by LMRA § 301.
B.
The Plaintiffs’ second and third causes of action allege that KAEC negligently retained
and supervised Kohler and Tikvesa, two supervisors at the manufacturing plant and defendants in
this action. Because the causes of action are similar, the Court analyzes them jointly. In
Kentucky, the elements of negligent retention are: “(1) the employer knew or reasonably should
have known that an employee was unfit for the job for which he was employed, and (2) the
employee’s placement or retention at that job created an unreasonable risk of harm to the
plaintiff.” Ten Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705, 733 (Ky. 2009) (citing Oakley v.
Flor-Shin, Inc., 964 S.W.2d 438, 442 (Ky. Ct. App. 1998)). Similarly, to state a claim for
negligent supervision of an employee, “the plaintiff must allege that the defendant [1] knew or
had reason to know of the employee’s harmful propensities; [2] that the employee injured the
plaintiff; and [3] that the hiring, supervision, or retention of such employee proximately caused
the plaintiff’s injuries.” Grand Aerie Fraternal Order of Eagles v. Carneyhan, 169 S.W.3d 840,
844 (Ky. 2005) (brackets added) (quoting 27 Am. Jur. 2d Employment Relationships § 401
(2004)).
The Plaintiffs argue that the negligent retention and supervision claims do not implicate the
CBA for two reasons. First, the duty not to harm another through the negligent retention or
supervision of an employee is owed to society at large and is not created by the terms of the CBA
at issue. In support of their argument, the Plaintiffs rely on Ward v. Circus Circus Casinos, Inc.,
473 F.3d 994 (9th Cir. 2006). The KAEC does not specifically object to this argument. Rather it

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claims the “parties negotiated the parameters of [this] duty when [they] adopted the management
rights clause [found in Article 4] of the CBA.” This brings the Court to the Plaintiffs’ second
argument, that the terms of the CBA are not implicated for the negligent retention and
supervision claims because Article 6 of the CBA explicitly states that employees “employed in
supervisory and management position shall be excluded from the bargaining unit.” (CBA, DN 12, p. 8.) Because the duty to prevent harm from negligent retention or supervision of employees
does not arise from the CBA and because the CBA states that it does not apply to supervisory
employees, the Plaintiffs argue that these causes of action cannot invoke the CBA or trigger §
301 preemption. The Court agrees.
In this case, KAEC claims that the CBA must necessarily be interpreted in order to
determine the scope of its duty to retain and supervise Kohler and Tikvesa. It is difficult to see
how the CBA could be implicated, however, when Article 6 states that those “employed in a
supervisory . . . position shall be excluded from the bargaining unit” and are therefore not
covered by the CBA. KAEC is correct that the “Managerial Rights” provision in the CBA says
that the “supervision and direction of the working forces [at KAEC facilities] . . . are and shall
continue to be solely and exclusively the functions and rights of the management of [KAEC].”
But this provision in no way describes or otherwise alters KAEC’s duty not to negligently retain
or supervise its supervisors. No reference to or interpretation of this provision is necessary to
adjudicate the Plaintiffs’ claims.
Gore v. AT&T Corp., No. 2:09-CV-854, 2010 WL 3118377 (S.D. Ohio Aug. 6, 2010), on
which the Plaintiffs rely heavily, is on point with the present case. In Gore, the plaintiffs asserted
a negligent retention claim against the defendant for acts by one of its supervisors, an individual
named Dunn. Because Dunn was a supervisor, however, “[his] terms of employment [were] not

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in fact subject to the CBA.” Id. at *3. Therefore, “it necessary follows . . . that the claim of
negligent hiring/retention is not preempted by the LMRA.” Id. The “pertinent inquiry for the
negligent hiring/retention claim is whether [Dunn’s] relationship with his employer is governed
by the CBA – not whether Plaintiff’s relationship is governed by the CBA. Since [Dunn’s]
employment is not governed by the CBA, this claim does not involve interpretation of the CBA.”
Id. As in Gore, the CBA at issue in this case does not extend to the supervisors, Kohler and
Tikvesa, and is in no way implicated by the negligent retention and supervision claims.
Counter to Gore, KAEC relies on Brown v. Royal Consumer Prods., No. 3:06-CV-419-S,
2008 WL 2795334 (W.D. Ky. July 18, 2008) (Simpson, J.), wherein a sister court in this district
declined to remand a negligent supervision claim because it was preempted by § 301. The court
found that “[s]ection 301 preempts [the negligent supervision] claim because ‘any duty relating
to the hiring, supervision or retention of employees in the collective bargaining context . . .
arise[s] solely from the [CBA] . . . [and] resolution of these types of claims . . . require[s]
interpretation of that agreement.’” Id. at *4 (quoting Weatherholt v. Meijer Inc., 922 F. Supp.
1227, 1232 (E.D. Mich. 1996)). Brown is distinguishable from the present case for two reasons.
First, the Plaintiffs have not asserted a negligent retention or supervision claim in the “collective
bargaining context.” They repeatedly assert that their claims are based solely on violations of
state law and that they do not intend to invoke the CBA. Second, and most importantly, the main
case that Brown’s reasoning rests on, Morris v. Ambassador Nursing Home, Inc., 854 F. Supp.
1164 (E.D. Mich. 1994), is factually distinguishable from the present circumstances.
In Morris, the plaintiff, a nurses aid, was accused of abusing a resident at the defendant
nursing home. Id. at 1166. The facility’s Director of Nursing and its Administrator conducted an
investigation into the allegations and ultimately terminated the plaintiff’s employment. Based on

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the facility’s policy and Michigan law, the nursing home notified the Michigan Department of
Health about the alleged abuse. Id. The attorney general instituted criminal proceedings against
the plaintiff, which were ultimately dismissed. Id. Following resolution of the criminal action,
the plaintiff filed suit against the nursing home and its supervisory employees alleging, among
other things, “negligent hiring, supervision and retention of the individual defendants.” Id. The
defendants removed on the basis of § 301 preemption “because the CBA between [the nursing
home] and the Union contains provisions which address the course of conduct the employer is to
follow in the event an employee is accused of abusing a patient.” Id. In addition to stating that
the nursing home had the right to make reasonable rules for the conduct of its employees, the
CBA also provided that “the Union and its members agree to adhere to and be governed by all
rules and regulations not in conflict with the [CBA].”

Id.

The nursing home created a

“personnel policies” manual separate from the CBA, which stated that “any incident or suspected
incident of abuse must be reported to the Director of Nursing or Administrator immediately and
they shall in turn contact the Michigan Department of Public Health.” Id. The policy manual
was incorporated into the CBA by reference and provided for the specific factual situation at
issue. Therefore, referencing it was clearly necessary to resolve the dispute.
The court found the negligent supervision and retention claims were preempted by § 301
because the “nature of [the nursing home’s] obligation to plaintiff with respect to its hiring,
supervision and retention of the other defendants is governed by the CBA by virtue of its
reference to [the nursing home’s] policies for employee conduct and discipline.” Id. at 1167
(emphasis added).

In other words, the negligent supervision and retention claims were

preempted because the personnel policies manual, providing for the exact factual circumstances
at issue, was incorporated by reference into the CBA. No such situation is before the Court in

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the case sub judice, and, therefore, the Defendants’ reliance on Brown in unpersuasive. This is
not to say that Brown was wrongly decided. The present case is simply in a different factual
posture than those cases on which Brown relies. Here, the CBA, if it applies at all, does not
contain standards for addressing the performance of supervisors.
Finding that Brown is distinguishable and not controlling furthers the policy that removal
statutes are to be strictly construed and all doubts concerning the validity of removal are to be
construed against it. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941).
Overall, the Court finds that the Plaintiffs’ claims for negligent retention and supervision of
Kohler and Tikvesa do not require reference to or interpretation of the CBA. Those claims are
not preempted by LMRA § 301.
C.
The final cause of action asserted by the Plaintiffs is a violation of the Kentucky Civil
Rights Act (“KRCA”), KRS § 344.010 et seq. They claim that the Defendants’ actions described
above “created a hostile work environment on the bases of race, disability, and ethnic origin,”
and that “actions and omissions of KAEC . . . constitute a pattern and practice of discrimination
on the bases of race, disability, and ethnic origin.” (Compl., DN 1-6, ¶¶ 35-36.) To state a claim
for hostile work environment based on race, disability, or ethnicity, the Plaintiffs must show: (1)
they were members of a protected class; (2) they were subject to unwelcome harassment; (3) the
harassment complained of was based upon being a member of the protected class; (4) the
harassment unreasonably interfered with the Plaintiffs’ work performance or created a hostile or
offensive work environment that was severe and pervasive; and (5) the employer knew or should
have known of the charged harassment and failed unreasonably to take promote and appropriate

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corrective action. See Fenton v. HiSAN, Inc., 174 F.3d 827, 829-30 (6th Cir. 1999).1
In their response to the Plaintiffs’ motion to remand, the Defendants admit that they “do
not contend that the Plaintiffs’ [KCRA] claims seek to vindicate rights dependent on the parties’
CBA.” (Defs.’ Resp., DN 15, p. 7.) In other words, the discrimination claim does not arise from
the CBA. Rather, the Defendants argue that the “Plaintiffs’ claims are still preempted by § 301
because they seek equitable remedies that will impact the parties’ rights under the CBA.” Id. In
support of their position the Defendants rely exclusively on Klepsky v. United Parcel Serv., 489
F.3d 264 (6th Cir. 2007). Klepsky stands for the proposition that even if the claim asserted does
not trigger § 301 preemption, the relief requested on that claim can require an interpretation of a
CBA, thereby creating a basis for preemption. See id. at 270.
In Klepsky, the plaintiff claimed he was terminated from employment in violation of the
Ohio Whistleblower Protection Act and Ohio public policy. Id. at 267. In addition to money
damages, he requested injunctive relief in the form of “reinstatement” at his job. Id. at 270.
Although the plaintiff’s claims arose under state law, the defendant removed based on LMRA §
301 preemption, alleging that the dispute required interpretation of a CBA. Id. at 269. On
appeal, the Sixth Circuit Court of Appeals held that the plaintiff’s state law claims were
preempted because even though “the causes of action that [he] pursues do not support
preemption on their own [under the terms of the CBA], the relief he seeks is a different question,
and does support preemption.” Id. at 270. The plaintiff sought reinstatement in his old position,
an equitable remedy requiring any court granting such relief to interpret the terms of the CBA
governing his pervious employment. “Even if he does not explicitly rely on terms of the CBA
1

Although Fenton arose out of Ohio, its listing of the elements of a hostile work environment claim are applicable
to the KCRA because courts of this district “use federal Title VII standards to evaluate state race discrimination
claims brought under Kentucky’s Civil Rights Act.” Wilson v. Dana Corp., 210 F. Supp. 2d 867, 877 (W.D. Ky.
2002) (citing Smith v. Leggett Wire Co., 220 F.3d 752, 758 (6th Cir. 2002); Steward v. Univ. of Louisville, 65
S.W.3d 536, 539 (Ky. Ct. App. 2001)).

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pertaining to reinstatement, his request for reinstatement would, at a minimum, seem to implicate
such rights and require interpretation of the CBA. For this reason, we find that preemption exists
under the LMRA.” Id.
In the present case, the Defendants argue for preemption because the Plaintiffs’ complaint
requests “[i]njunctive relief prohibiting the Defendant from further abusive conduct.” (Compl.,
DN 1-6, p. 9.) They argue that any injunctive relief granted by the Court will necessarily require
it to, like the court in Klepsky, interpret the terms of the applicable CBA. The Court disagrees.
As discussed above, nothing in the portions of the CBA cited by the Defendants sanctions or
authorizes the supervisors to engage in discriminatory conduct based on race, ethnicity, or
disability. In fact, if it did so the CBA would be in violation of the KCRA. The injunctive relief
requested by the Plaintiffs does not request reinstatement or some other relief that would require
interpretation of the CBA. It merely requests that the Defendants be prohibited from engaging in
discriminatory and abusive conduct, conduct that the CBA cannot authorize. The CBA is in no
way implicated by the request for injunctive relief, and the Plaintiffs’ claims under the KCRA are
not preempted by LMRA § 301.
CONCLUSION
The Plaintiffs moved to remand this action to state court because the Court lacks subject
matter jurisdiction. For all of the foregoing reasons, the Plaintiffs’ motion is GRANTED, and
IT IS HEREBY ORDERED that this action is REMANDED to the Jefferson County Circuit
Court.

March 14, 2013

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