Hierl v. The Marek Group Inc

Filing 24

ORDER signed by Judge Rudolph T. Randa on 8/26/2013 DENYING 14 MOTION for Judgment on the Pleadings; GRANTING 23 MOTION for Leave to File Corrected Brief In Support. Telephonic Scheduling Conference set for 10/8/2013 at 10:30 AM (CST) before Judge Rudolph T. Randa, the Court will initiate the call. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JONATHAN R. HIERL,
Plaintiff,
-vs-

Case No. 13-C-264

THE MAREK GROUP, Inc.,
Defendant.

DECISION AND ORDER

Jonathan R. Hierl worked for The Marek Group as a bookbinder apprentice
from May of 2008 until November, 2011. In this lawsuit, Hierl brings claims against
Marek for interference and retaliation in violation of the Family and Medical Leave
Act (“FMLA”). Hierl also alleges that Marek failed to pay him according to the wage
scale set by the applicable collective bargaining agreement.

Marek moves for

judgment on the pleadings, Fed. R. Civ. P. 12(c), arguing that Hierl‟s claims are either
preempted by Section 301 of the Labor Management Relations Act (“LMRA”) or are
implausible under federal pleading standards. Ashcroft v. Iqbal, 556 U.S. 662 (2009);
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). For the reasons that follow, this
motion is denied.
A motion for judgment on the pleadings is evaluated using the same standard
as a motion to dismiss for failure to state a claim. Buchanan-Moore v. Cnty. of
Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009). To survive such a motion, a complaint

does not need detailed factual allegations, but it must contain more than labels and
conclusions or a formalistic recitation of the elements of a cause of action. Twombly,
550 U.S. at 555. Ultimately, the complaint must include “enough facts to state a claim
to relief that is plausible on its face.” Hecker v. Deere & Co., 556 F.3d 575, 580 (7th
Cir. 2009). To be facially plausible, the complaint must allow the Court to “draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,
556 U.S. at 678. The “tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id. The following facts, gleaned from the complaint and various documents
referenced therein,1 are presumed to be true for purposes of this motion.
Marek is a print, bindery and finishing company with its principal place of
business in Waukesha. On May 1, 2008, Hierl accepted a position with Marek as a
bookbinder apprentice. Hierl was placed on a forty-eight (48) month apprenticeship
program, after which it was agreed that he would receive his journeyman‟s card and be
paid the journeyman‟s rate. Hierl‟s employment was governed by the terms of the
collective bargaining agreement between Marek and the Graphic Communications
Conference, International Brotherhood of Teamsters, Local 577-M.

The CBA

Marek‟s motion attaches the collective bargaining agreement and various documents
relating to Hierl‟s union grievance, discussed below. The Court can consider these documents
without converting this motion into one for summary judgment. Venture Assoc. v. Zenith Data Sys.,
987 F.2d 429, 431 (7th Cir. 1993) (“Documents that a defendant attaches to a motion to dismiss are
considered part of the pleadings if they are referred to in the plaintiff‟s complaint and are central to
her claim”).
1

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provides a specific wage scale for apprenticeship employees.
On April 15, 2011, Hierl submitted a written complaint to Marek regarding the
progress of his apprenticeship program. In a May 3 meeting, Hierl expressed concern
that he had not been given the opportunity to learn certain necessary skills to complete
the program. Marek agreed that Hierl would receive five hours of dedicated training
time per week to assist him in completing the apprenticeship training program.
On June 21, Hierl‟s union filed a grievance alleging that Hierl should be
promoted to a journeyman and be paid the journeyman rate while the company
continued his training. In late June-early July, Hierl was informed by his supervisor
that the company‟s long term plan was to place him on second shift as a journeyman.
During this period, and during the three month training period, Hierl was informed by
a number of supervisors that he was meeting the training requirements and doing a
good job, particularly on first shift.
On July 8, Hierl submitted a leave request regarding a finger/hand injury. On
or about July 11, Hierl completed a Report of Injury Form and a request for Family
Medical Leave. Due to his injuries, and also to attend medical appointments, Hierl
took FMLA leave on the following dates: July 6-8; August 3-5; and the entire week of
August 26. His doctors also required him to work light duty due to his injuries and
referred him to a hand surgeon. On August 8, Hierl told Marek about his light duty
requirement and the possibility of hand surgery.
On the same day, Hierl attended a meeting regarding his grievance. Hierl was
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informed that he was not capable of being a journeyman bindery worker, that he would
be demoted from apprentice bookbinder to experienced bindery worker, and that he
would be receiving a $5.00 wage decrease per hour. Hierl was told that he could
accept this position or be terminated. Hierl eventually quit on November 4, 2011. He
alleges that he was constructively discharged.
Marek argues that Hierl‟s wage claim is preempted by Section 301 of the
LMRA. 29 U.S.C. § 185(a). The preemptive force of § 301 is “so powerful as to
displace entirely any state cause of action for violation of contracts between an
employer and a labor organization.” Franchise Tax Bd. of Cal. v. Constr. Laborers
Vacation Trust for S. Cal., 463 U.S. 1, 23 (1983). “Any such suit is purely a creature
of federal law, notwithstanding the fact that state law would provide a cause of action
in the absence of § 301.” Id. Yet “not every dispute concerning employment, or
tangentially involving a provision of a collective-bargaining agreement, is pre-empted
by § 301 or other provisions of the federal labor law.” Allis-Chalmers Corp. v. Lueck,
471 U.S. 202, 211 (1985). Accordingly, a “question of state law, entirely independent
of any understanding embodied in the collective-bargaining agreement” can go
forward as a state-law claim, Livadas v. Bradshaw, 512 U.S. 107, 125 (1994), but a
claim which is “sufficiently dependent on an interpretation of the CBA” is preempted.
Baker v. Kingsley, 387 F.3d 649, 657 (7th Cir. 2004). Therefore, the Court must
determine the extent to which Hierl‟s state law claim will require interpretation of the
applicable CBA.

This issue, which requires “case-by-case factual analysis . . .
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continues to cause some bewilderment.” In re Bentz Metal Prods. Co., Inc., 253 F.3d
283, 285, 286 (7th Cir. 2001). “While preemption is a strong federal policy, Congress
has not exercised authority to occupy the entire field of labor legislation, and it did not
explicitly declare the extent to which it intended § 301 to preempt state law. What has
become clear is that preemption can extend beyond contract disputes to other state law
claims if resolution of those claims is sufficiently dependent on an interpretation of a
CBA.” Id. at 286.
Hierl‟s claim is that Marek did not pay him all that he was owed under the
wage scale set forth in the CBA. If true, and if the claim is not preempted, this would
trigger liability for failure to pay wages in a timely manner under Wisconsin‟s wage
claim statute. Wis. Stat. § 109.03(1). It would also trigger the statute‟s penalty
provisions. § 109.11(2)(b) (a court “may order the employer to pay to the employee,
in addition to the amount of wages due and unpaid to an employee . . . increased wages
of not more than 100% of those wages due and unpaid”).
This claim is similar to the one in Livadas, which involved a state law claim
for failure to promptly pay all wages due upon severance. In Livadas, the Supreme
Court found against preemption, reasoning that the “bare fact that a collectivebargaining agreement will be consulted in the course of state-law litigation plainly
does not require the claim to be extinguished.” Id. at 124 (citing Lingle v. Norge
Division of Magic Chef, Inc., 486 U.S. 399 (1988)). In Lingle, the Court explained that
a CBA “may, of course, contain information such as rate of pay and other economic
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benefits that might be helpful in determining the damages to which a worker prevailing
in a state-law suit is entitled. . . . In such a case, federal law would govern the
interpretation of the agreement, but the separate state-law analysis would not be
thereby pre-empted.” Lingle at 413, n.12. Accordingly, the “mere need to „look to‟
the collective-bargaining agreement for damages computation is no reason to hold the
state-law claim defeated by § 301.” Livadas at 125; see also In re Bentz at 289
(“resolution of a claim must require interpretation of a CBA, not a mere glance at it . .
.”).
Marek argues that Hierl‟s claim requires an interpretation of various provisions
of the CBA, but quite frankly, the Court has no idea if this is actually the case.
Generally speaking, wage scale is a function of employee classification under the
CBA, but the CBA doesn‟t say anything about how or why a particular employee is
governed by a specific classification. For example, a bookbinder apprentice is entitled
to a specific wage scale, but the CBA doesn‟t explain why an employee should be
considered a bookbinder apprentice.

In this case, it appears that Hierl was a

bookbinder apprentice only because that was the position he accepted when he started
working at Marek. It therefore stands to reason that the correct classification can be
determined without “interpreting” the CBA. Drawing all reasonable inferences in
Hierl‟s favor, he has stated an actionable, non-preempted claim under state law.2

2

Marek also argues that Hierl is bound by the settlement of his grievance, whereby he was
demoted from apprentice bookbinder to experienced bindery worker, effective August 25, 2011. ECF

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As noted, Marek also argues that Hierl failed to state plausible claims under the
FMLA for interference and/or retaliation. The Court disagrees. Hierl‟s complaint
provides more than enough facts to state facially plausible claims.

See, e.g.,

Complaint, ¶ 19 (“Between August 30, 2011 and September 8, 2011, Hierl was
subjected to a series of spurious allegations regarding his job performance, denied shift
transfers that were required by the contract, and subjected to allegations that he would
be disciplined because certain days he had requested FMLA leave for a serious work
condition were not covered”); ¶ 28 (“Marek Group interfered with Hierl‟s ability to
take FMLA by denying certain days or disciplining him for FMLA leave, and by
demoting him to a lesser position and reducing his wages after requesting and using
FMLA leave”).3
Marek‟s motion for leave to file a corrected brief [ECF No. 23] is GRANTED,
but its motion for judgment on the pleadings [ECF No. 14] is DENIED. On October
8, 2013 at 10:30 a.m. (CST), the Court will conduct a telephonic scheduling
conference. The parties should refer to the Court‟s previous notice [ECF No. 9] for
details.

No. 15, Ex. B, C. Hierl might be precluded from challenging this outcome, Dykes v. Se. Pa. Transp.
Auth., 68 F.3d 1564, 1569-70 (3d Cir. 1995), but the majority of Hierl‟s wage claim does not relate to
the period of time after August 25. Complaint, ¶ 39.
Marek‟s argument that the FMLA claims are preempted by § 301 requires little discussion.
Watts v. United Parcel Service, Inc., 701 F.3d 188, 191 (6th Cir. 2012) (“The animating purpose of §
301 preemption is to ensure that federal labor law uniformly prevails over inconsistent interpretations
of CBAs by state courts. When a claim asserts a right arising under federal law, and is filed in federal
court, that rationale does not apply”) (internal citations omitted).
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Dated at Milwaukee, Wisconsin, this 26th day of August, 2013.

BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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