McClellan v. Skytech Enterprises, LTD et al

Filing 17

ORDER by Judge Ronald A. White granting in part and denying in part defendants' motion to dismiss ( 6 Motion to Dismiss Case for Failure to State a Claim) (law, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
JOHN MCCLELLAN, JR.,
Plaintiff,
v.

Case No. CIV-12-202-RAW

(1) SKYTECH ENTERPRISES, LTD, d/b/a
SKYTECH SECURITY SERVICES,
(2) ASBERRY RAKESTRAW, individually,
and
(3) ANNA RAKESTRAW, indvidually,
Defendants.

ORDER
Before the court is Defendants’ motion to dismiss [Docket No. 6]. Plaintiff filed his
Petition in the District Court of Pittsburg County on April 9, 2012. In his Petition, Plaintiff
brings two causes of action: (1) breach of implied contract, and (2) violation of public policy. On
May 4, 2012, Defendants removed the state court action to this court. Removal to this court is
proper pursuant to 28 U.S.C. § 1441.
Plaintiff alleges that he was employed by Amtex Security, Inc. (“Amtex”) under the
Service Contract Act at McAlester Army Ammunition Plant (“MAAP”) for more than three
years. He alleges that he was an excellent employee and had all relevant certifications and
qualifications. He further alleges that he was an active member of the Local Union 796 of the
Security, Police, Fire Professionals of America (“SPFPA”). Plaintiff alleges that he was subject
to the collective bargaining agreement that was negotiated between the SPFPA Local Union 796
and Amtex.

Plaintiff argues that when Skytech Enterprises, d/b/a Skytech Security Services
(“Skytech”) was awarded the security contract for MAAP, Skytech was required by federal law
to abide by that collective bargaining agreement until such time as it negotiated a new agreement.
Plaintiff alleges that Skytech did not abide by the collective bargaining agreement, instead
choosing not to retain Plaintiff and/or to terminate him because of his active involvement in the
labor union. Plaintiff argues that he should have been retained based on his seniority,
qualifications, and excellent work history.

First Claim
Defendant argues that Plaintiff’s first cause of action should be dismissed because: (1)
any state law breach of contract claim is preempted by section 301 of the Labor Management
Relations Act (“LMRA”), 29 U.S.C. § 185, and (2) Plaintiff has failed to state a claim for relief
under section 301. Plaintiff concedes that his breach of implied contract claim is preempted by
section 301 of the LMRA, but argues that he made plausible allegations in his Petition that
Defendants violated section 301. Alternatively, Plaintiff argues that he should be given leave to
amend.
Defendants are correct that Plaintiff has not stated a claim for violation of section 301 of
the LMRA. Plaintiff has made no allegations with regard to his exhaustion of any grievance or
arbitration remedies provided in the collective bargaining agreement, any breach of duty by the
labor union, or any causal connection between an alleged breach by the labor union and the
integrity of the arbitration process. See DelCostello v. International Broth. of Teamsters, 462
U.S. 151 (1983); Webb v. ABF Freight System, Inc., 155 F.3d 1230 (10th Cir. 1998).

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Federal Rule of Civil Procedure 15(a)(2) requires the court to freely give leave to amend
when justice so requires. Accordingly, Defendant’s motion to dismiss Plaintiff’s first claim is
denied at this time. Plaintiff may file an Amended Complaint no later than August 17, 2012. If
Plaintiff does not file an Amended Complaint, the court will dismiss this claim.

Second Claim
Defendant argues that Plaintiff’s second cause of action should be dismissed because the
policy upon which Plaintiff relies, Executive Order 13495 (“EO 13495")*, has not yet become
effective. Defendant further argues that EO 13495 does not create a private cause of action.
Instead, the Secretary of Labor has exclusive authority to resolve disputes. Defendant also argues
that EO 13495 does not apply to “managerial and supervisory” employees.
Section 10 of EO 13495 states that it is effective immediately and applies to solicitations
issued on or after the effective date for the action taken by the Federal Acquisition Regulatory
Council under section 6(b) of EO 13495. The parties agree that such action has not yet been
taken. Even if it had, however, Defendant is correct that EO 13495 does not create a cause of
action.
Section 6 of EO 13495 makes clear that the Secretary of Labor is tasked with the
enforcement of EO 13495. “The Secretary of Labor (Secretary) is responsible for investigating
and obtaining compliance with this order. In such proceedings, the Secretary shall have the
authority to issue final orders prescribing appropriate sanctions and remedies, including but not
limited to, orders requiring employment and payment of wages lost.” Section 6(b) of EO 13495
*

Plaintiff does not explicitly state in his Petition that he is relying on EO 13495, but in his
Response to the motion at issue, he concedes that he is.
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goes on to state that certain disputes “shall be disposed of only as provided by the Secretary” and
that “resolution of disputes by efficient and informal alternative dispute resolution methods” is
favored.
Furthermore, Section 9(c) states:
This order is not intended to, and does not, create any right or benefit, substantive
or procedural, enforceable at law or in equity by any party against the United
States, its departments, agencies, or entities, its officers, employees, or agents, or
any other person. This order is not intended, however, to preclude judicial review
of final decisions by the Secretary in accordance with the Administrative
Procedure Act, 5 U.S.C. § 701, et seq.
Accordingly, unless Plaintiff brings an action in this court for judicial review of a final decision
by the Secretary of Labor, any claim based on EO 13495 fails. Defendant’s motion is
GRANTED as to this claim.

Conclusion
Accordingly, the motion to dismiss [Docket No. 6] is hereby DENIED in part and
GRANTED in part. Plaintiff has not stated a claim for violation of section 301 of the Labor
Management Relations Act. Plaintiff may file an Amended Complaint no later than August 17,
2012. If Plaintiff fails to file his Amended Complaint, his first cause of action will be dismissed.
Plaintiff’s second cause of action, his policy claim pursuant to Executive Order 13495, is
DISMISSED without prejudice.
IT IS SO ORDERED this 3rd day of August 2012.
Dated this 3rd day of August, 2012.

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