Caldwell et al v. Koppers Inc

Filing 22

OPINION AND ORDER: The defendant's motion to dismiss is GRANTED. (ECF No. 13 .) The case is hereby dismissed. Signed by Honorable Bruce Howe Hendricks on 10/31/2014.(prou, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
) Civil Action No.: 4:13-3407-BHH
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OPINION AND ORDER
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Plaintiffs, )
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v.
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Koppers, Inc.,
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Defendant. )
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Peter J. Caldwell, Willie Barr, Tommy Bass,
James Burnett, Rondal Briggs, Brad Britt,
Joseph Coker, Lynn Cooper, Bruce Echols,
McCall Ford, Roland Ford, Walter Ford,
Harold Frasier, Leroy Fulton, Walter Gibson,
Shelton Hawkins, Jeffery Mack, Tony Planter,
Prince Pressley, Stephen Sellers, Willie
Shepherd, Robert Singletary, Lindsey
Timmons,

This matter is before the Court on the defendant Koppers, Inc.’s (“the defendant”)
Motion to Dismiss and to Stay Discovery. (ECF No. 13.) The case was removed from the
Court of Common Pleas, County of Florence, South Carolina on December 5, 2013, by the
defendant. (ECF No. 1.) In their complaint, the plaintiffs assert causes of action for breach
of contact and violation of the South Carolina Payment of Wages Act, S.C. Code Ann. § 4110-10, et seq. (ECF No.1-1.)
FACTUAL AND PROCEDURAL BACKGROUND
The plaintiffs were employed by the defendant at its facility located in Florence,
South Carolina. (Compl. ¶¶ 3, 4.) The plaintiffs each were members of a “bargaining unit”
represented by Local Lodge No. W77 of the International Association of Machinists and
Aerospace Workers. Id. ¶ 4. The terms and conditions of the plaintiffs’ employment were
covered by a Labor Agreement between the defendant and the Local W77, International

Association of Machinists and Aerospace Workers, for the period of time prior to October
31, 2010, and then subsequently by a Labor Agreement, effective November 1, 2010
(hereinafter referred to as “prior Agreement” and “Agreement” respectively). Id. ¶¶ 12, 13.
Under the prior Agreement, individual employees’ vacation pay was calculated
based upon each employee’s date of hiring. (Compl. ¶ 13.) Under the new Agreement,
vacation pay for all employees was calculated on a calendar year basis. Id. ¶ 14.
In their Complaint, the plaintiffs allege that the defendant failed to adequately provide
or to compensate them for vacation time which had accrued under the prior Agreement,
and that such alleged failure amounts to a breach of contract and a violation of the South
Carolina Payment of Wages Act, SC Code § 41-10-10, et. seq.
STANDARD OF REVIEW
A plaintiff’s complaint should set forth “a short and plain statement . . . showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Rule 8 “does not require ‘detailed
factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To show that the plaintiff is “entitled to
relief,” the complaint must provide “more than labels and conclusions,” and “a formulaic
recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. In
considering a motion to dismiss under Rule 12(b)(6), the Court “accepts all well-pled facts
as true and construes these facts in the light most favorable to the plaintiff . . . .” Nemet
Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009). Notably,
“legal conclusions, elements of a cause of action, and bare assertions devoid of further
factual enhancement” do not qualify as well pled facts.
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To survive a Rule 12(b)(6) motion to dismiss, a complaint must state “a plausible
claim for relief.” Iqbal, 129 S. Ct. at 1950. “The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has
acted unlawfully. Where a complaint pleads facts that are ‘merely consistent with’ a
defendant’s liability, it ‘stops short of the line between possibility and plausibility of
entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557). Stated differently, “where
the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged--but it has not ‘show[n]’—‘that the pleader is entitled
to relief.’” Id. (quoting Fed. R. Civ. P. 8(a)). Still, Rule 12(b)(6) “does not countenance . . .
dismissals based on a judge’s disbelief of a complaint’s factual allegations.” Colon Health
Centers of Am., LLC v. Hazel, 733 F.3d 535, 545 (4th Cir. 2013) (quoting Neitzke v.
Williams, 490 U.S. 319, 327 (1989)). “A plausible but inconclusive inference from pleaded
facts will survive a motion to dismiss . . . .” Sepulveda-Villarini v. Dep’t of Educ. of Puerto
Rico, 628 F.3d 25, 30 (1st Cir. 2010) (Souter, J.).
DISCUSSION
The defendant contends that the plaintiffs’ claims should be dismissed as having
been preempted by Section 301 of the Labor Management Relations Act (“LMRA”) of 1947,
as amended, 29 U.S.C. §185(a). Section 301 of the LMRA states: “Suits for violation of
contracts between an employer and a labor organization representing employees in an
industry affecting commerce . . . may be brought in any district court of the United States
having jurisdiction of the parties . . . .” 29 U.S.C. § 185(a). To ensure uniform interpretation
of collective bargaining agreements (“CBA”) and to protect the power of arbitrators, see
Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211, 219 (1985), Section 301 has been found
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to “displace entirely any state cause of action for violation of contracts between an
employer and a labor organization,” Franchise Tax Bd. v. Constr. Laborers Vacation Trust,
463 U.S. 1, 23 (1983) (internal quotation omitted). In Section 301 cases federal law
applies, “which the courts must fashion from the policy of our national labor laws.” Textile
Workers v. Lincoln Mills, 353 U.S. 448, 456 (1957).
Section 301 preempts state law claims when their resolution depends upon the
meaning of the CBA, or when resolution of the state law claim is “inextricably intertwined
with consideration of the terms of the labor contract.” Owen v. Carpenters' Dist. Council,
161 F.3d 767, 773 (4th Cir.1998) (citing Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S.
399, 405-06 (1988), and Allis-Chalmers, 471 U.S. at 213 (1985)); Anselmo v. W. Paces
Hotel Grp., LLC, 2011 WL 1049195, at *5 (D.S.C. Mar. 18, 2011). “[I]t is the legal
character of a claim, as independent of rights under the [CBA] (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.” Livadas v. Bradshaw, 512 U.S. 107, 12324 (1994) (internal citations and quotations omitted). Section 301 does not preempt state
contract rights that are independent of a [CBA], Caterpillar, Inc. v. Williams, 482 U.S. 386,
396 (1987), or “nonnegotiable rights conferred on individual employees as a matter of state
law,” Davis v. Bell Atlantic-West Virginia, Inc., 110 F.3d 245, 247-48 (4th Cir.1997) (citing
Livadas, 512 U.S. at 123).
In this present case, the matter does not even feel like a close call, frankly. The
United States Supreme Court has stated directly:
Thus, questions relating to what the parties to a labor
agreement agreed, and what legal consequences were
intended to flow from breaches of that agreement, must be
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resolved by reference to uniform federal law, whether such
questions arise in the context of a suit for breach of contract or
in a suit alleging liability in tort.

Allis-Chalmers Corp., 471 U.S. 202, 211. It is plain from the Complaint that whether the
plaintiffs are owed any compensation for vacation time requires consideration of “what the
parties to [the] labor agreement agreed.” Id. Indeed, the Complaint implies that, at a
minimum, an interpretation of the various vacation and wage-related provisions of the CBA
would be necessary to determine how to appropriately apply as credits all payments or
other compensation provided to the plaintiffs by the defendant. (Compl. ¶¶ 4-6, 13-14.)
In other words, it is necessary to determine whether those payments met the requirements
of either or both of the two Agreements.
The plaintiffs respond that no interpretation of the Agreement is necessary, however.
The plaintiffs contend that “there is no dispute between the parties as to the interpretation
of the Labor Agreements.” (Pl. Resp. at 4.) The plaintiff states further,
The Labor Agreements are clear: Plaintiffs will be
compensated for vacation time earned. What is also clear, is
that Defendants, in implementing a new labor agreement, did
not compensate Plaintiffs for vacation time earned. Defendant
cannot present any interpretation of the Labor Agreement that
would have allowed Defendants to withhold compensation for
vacation time earned and owed to the Plaintiffs.
Id. Of course, that is a useful view of the lawsuit – that there is no dispute over the
meaning of the Agreements. But, the Court is not persuaded. First, application of the
agreement is precisely the sort of subject for which preemption covers. See Anselmo, 2011
WL 1049195, at *5-6. Second, in advancing this argument the plaintiff is conveniently
attempting to answer the ultimate question – the meaning and effect of the Agreements.

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Precisely because the Complaint suggests some resolution of conflict between a new and
preexisting vacation policy, pursuant to respective CBAs, an interpretive exercise is
implicated. (See Compl. ¶ 4.)
The plaintiff’s own citation to the Fourth Circuit Court of Appeals decision, in Barton
v. House of Raeford Farms, 745 F.3d 95 (4th Cir. Mar. 11, 2014), proves it:
It is therefore apparent that the plaintiffs’ claims under the S.C.
Wages Act are nothing other than a disagreement with
Columbia Farms’ interpretation of how to calculate their “hours
worked” under the CBA, including the two unpaid breaks
provided for in the CBA.
...
While both sides have looked to a range of evidence to resolve
the dispute -- e.g., the representations at orientation, the
Employee Handbook, and the practices followed -- the
question at bottom remains what the CBA intended. For this
reason, we conclude that the dispute under the S.C. Wages
Act necessarily implicates an interpretation of the CBA and
therefore that the proceedings are preempted by § 301 of the
LMRA.

Id. at 106 (emphasis added).
The meaning of the “vacation policy pursuant to the Labor Agreement” is squarely
at issue, here. (See Compl. ¶ 5.) The plaintiff emphasizes the United States Supreme
Court’s admonition that “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” and that Section 301 does not preempt “nonnegotiable rights” such as the
payment of wages. Livadas v. Bradshaw, 512 U.S. 107,123-24 (1994). But, the Complaint
speaks of more than mere consultation and rote payment. Instead, the plaintiffs are
arguing that pursuant to the prior policy the “Defendants owe Plaintiffs vacation pay
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accrued prior to October 31, 2010.” (Compl. ¶ 9.) It is further averred that the “new labor
agreement of November 1, 2010, adversely affected Plaintiffs.” Id. ¶ 10. The Complaint
alleges that the manner in which the vacation pay is calculated was altered and, further,
that such accrued vacation time should be treated “under the prior labor agreement.”
(Compl. ¶¶ 4-5, 7.) The Court does not understand how the case amounts to anything
other than a resolution of which agreement applies and for which period of time. And, the
fact that the general payment of wages is a statutory and, therefore, nonnegotiable right,
insofar as wages due are nonnegotiably owed, the calculation of such payments, with
respect to vacation pay for example, is a matter of contract negotiation – thus the
modification made to the Agreement at issue here. This District and Circuit have concluded
expressly as much. See Anselmo v. W. Paces Hotel Grp., LLC, 2011 WL 1049195, at *10
(D.S.C. Mar. 18, 2011) (concluding that although the South Carolina Payment of Wages
Act creates a right to be paid wages that “right is based upon an employment contract”; “the
contract is the source of the right to wages . . . not the South Carolina statute”); see also
Briggs v. Heinz, 1989 WL 27483, at *1 (4th Cir. Mar.17, 1989) (“The employees’ claim
against Heinz was based on a provision for personal leave days created by the collective
bargaining agreement. West Virginia law did not create the right to be paid for such
leave.”) The plaintiffs have certainly not explained otherwise.
Because the plaintiff's breach of contract and South Carolina Payment of Wages
Act, see id., claims are "inextricably intertwined with consideration of the terms of the
[Labor Agreements]" and would require a fact-finder to “consult and interpret multiple
provisions of the [Labor Agreements],” their state-law claim for breach of contract is
preempted by Section 301. See Allis-Chalmers, 471 U.S. at 213; Elswick v. Daniels Electric
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Inc., 787 F. Supp. 2d 443, 447-48 (S.D. W. Va. 2011).
When resolution of a state law claim depends substantially on the analysis of a
collective bargaining agreement’s terms, it must either be treated as a claim under Section
301, subject to dismissal if the collective bargaining agreement’s grievance and arbitration
procedures have not been followed, or alternatively be dismissed as preempted. See
Barton, 745 F.3d at 107. The Court will consider which result is appropriate here.
II.

Grievance and Futility of Amendment
The defendant contends that any amendment to add a Section 301 claim here, in

replacement of the state law ones, would be futile because the plaintiffs have not grieved
their claims pursuant to the Agreement. “[T]he general rule is that ‘[a]n employee seeking
a remedy for an alleged breach of the collective-bargaining agreement between his union
and employer must attempt to exhaust any exclusive grievance and arbitration procedures
established by that agreement before he may maintain a suit against his union or employer
under § 301.’” Elswick v. Daniels Electric Inc., 787 F. Supp. 2d 443, 448 (S.D. W. Va.
2011) (citing Clayton v. Int'l Union, UAW, 451 U.S. 679, 681 (1981)).
The Agreement here outlines a mandatory five-step grievance process, including
arbitration. (ECF No. 13-3 at 10-11.) Neither in Complaint, nor on response, do the
plaintiffs claim to have exhausted any part of it. (Pl. Resp. at 7; see generally Compl.)
Instead, the plaintiffs retreat to arguments concerning the arbitrability of the case. But, the
plaintiffs’ exhaustion of the grievance procedure would only turn on the arbitrability of the
matter if the plaintiffs had participated in the previous steps. They have not mentioned as
much. See id. But, the defendant has included a Declaration that indicates that a
grievance was indeed filed but abandoned upon appointment of an arbitrator. (ECF No.
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13-2 at 2.) Accordingly, the Court would treat the preliminary steps as having been
exhausted and consider whether the case is also and finally subject to arbitration according
to the Agreement. The plaintiffs contend it is not.
On the language of the present Agreement, there is no dispute that the Court, as
opposed to an arbitrator, must determine arbitrability.1 See AT&T Techs., Inc. v. Commc’ns
Workers of Am., 475 U.S. 643, 649 (1986); Carson v. Food Giant, Inc., 175 F.3d 325, 329
(4th Cir. 1999). The plaintiffs’ claims clearly are of the type contemplated by the grievance
procedure, which covers matters that “arise concerning meaning and/or application of this
agreement . . . .” (Declaration of S. Douglas Lowe, Attachments 1 and 2, Article 8, §1.) The
plain meaning of the Agreement controls.

See E.I. DuPont de Nemours & Co. v.

Martinsville Nylon Employees' Council Corp., 1996 WL 8450, at *2 (4th Cir. 1996). Of
course, the Court has already ruled that resolution of the pled claims necessitates
consideration of both the meaning and application of the Agreement(s), as the above
language requires.

As such, the plaintiffs were required to exhaust the grievance

procedure provided under Article 8, up to and including final and binding arbitration. Id.
In a single sentence the plaintiffs additionally complain as follows: “Furthermore, it
is very apparent that union [sic] breached its statutory duty when it abandoned the
grievance without notification or explanation to members.” (Pl. Resp. at 8.) In this action,
and as far as the Court has been informed, in any other action, the plaintiffs have not filed
suit against their union for breach of a duty of fair representation or other similar cause.

1

The plaintiffs, through some clever positioning in their brief have suggested somehow
that the “clear and unmistakable” test employed to determine whether arbitibility, itself, may be
submitted to arbitration, see Carson, 175 F.3d at 329, is also applicable in the court’s own
determination of arbitibility. It is not.

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See Thompson v. Aluminum Co. of Am., 276 F.3d 651, 656 (4th Cir. 2002). And, an
employee “‘must prevail upon his unfair representation claim before he may even litigate
the merits of his § 301 claim against the employer.’” Id. (quoting United Parcel Service, Inc.
v. Mitchell, 451 U.S. 56, 67 (1981)). So, the plaintiffs may not casually accuse their union,
a non-party to this case, of malfeasance and, thereby, think to escape their obligation in
exhaustion.
Amendment would be futile, therefore, for want of exhaustion. The Court, therefore,
is constrained to dismiss the claims as preempted.
CONCLUSION
For the foregoing reasons, the defendant’s motion to dismiss is GRANTED. (ECF
No. 13.) The case is hereby dismissed.
IT IS SO ORDERED.
/s/ Bruce Howe Hendricks
United States District Judge

October 31, 2014
Greenville, South Carolina

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