Preemption and Collective Bargaining Agreements

May 19, 2016

To survive a motion for judgment on the pleadings, a complaint must state sufficient facts, accepted as true, to state a claim that is plausible on its face.  Chavez v. United States, 683 F. 3d 1102, 1108-1109 (9th Cir. 2012).  Thus, a defendant is not entitled to judgment on the pleadings if the complaint raises issues of fact which, if proved, would support recovery.  General Conference Corp. of Seventh-Day Adventists v. Seventh-Day Adventist Congregational Church, 887 F. 2d 228, 230 (9th Cir. 1989).

In a motion for judgment on the pleadings the moving party may refer only to (a) the complaint and answer; (b) any documents attached to or mentioned in the pleadings; (c) documents not attached but “integral” to the claims; and (d) matters subject to judicial notice.  L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2nd Cir. 2011); Massey v. Ojaniit, 759 F.3d 343, 347-348 (4th Cir. 2014).

If matters outside the pleading are presented to and not excluded by the court, the motion for judgment on the pleadings is converted into a summary judgment motion.  Federal Rules of Civil Procedure, Rule 12(d); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1989).  Judgment on the pleadings is improper when the district court goes beyond the pleadings to resolve an issue.  Federal Rule of Civil Procedure, Rule 12(c).

Section 301 of the Labor Management Relations Act (LMRA), codified at 29 U.S.C. § 185,  preempts a state-law claim “if the resolution of [that] claim depends upon the meaning of a collective-bargaining agreement.”  Ramirez v. Fox Television Station, Inc., 998 F.2d 743, 748 (9th Cir.1993) (quoting Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 405–06 (1988)).  “The plaintiff’s claim is the touchstone for this analysis; the need to interpret the [collective bargaining agreement] must inhere in the nature of the plaintiff’s claim.”  Cramer v. Consolidated Freightways, Inc., 255 F.3d 683, 691 (9th Cir. 2001).  A “reference to or consideration of the terms of a collective bargaining agreement is not the equivalent of interpreting the meaning of the terms.”  Ramirez, 998 F.2d at 749. 

A Cal/OSHA Whistleblower retaliation claim requires the plaintiff to prove that (1) they engaged in a protected activity, (2) that they was thereafter subjected to adverse employment action by their employer, and (3) there was a causal link between the two.  Iwekaogwu v. City of Los Angeles, 75 Cal.App.4th at 814, quoting Flait v. North American Watch Corp., 3 Cal.App.4th at 476.  A Tameny v. Atlantic Richfield Co., 27 Cal.3d 167 (1980) Claim requires the plaintiff to prove that they were discharged in violation of public policy.  Neither of these claims requires any reference to a Collective Bargaining Agreement (CBA).

In fact, for the purposes of these claims, it does not matter whether the plaintiff was an at will employee, who could be terminated for any legal reason, or whether the employer required just cause to terminate them. 

“If the claim is plainly based on state law, § 301 preemption is not mandated simply because the defendant refers to the [collective bargaining agreement] in mounting a defense.”  Cramer, 255 F.3d at 691.  

In fact, by its own terms, this Fifth Circuit precedent specifically states that the Ninth Circuit has a different view of preemption:  “We acknowledge that the Ninth Circuit has taken a much more lenient view of preemption of state law discrimination claims.  See, e.g., Ramirez v. Fox Television Station, Inc., 998 F.2d 743, 748 (9th Cir.1993) (“In every case in which we have considered an action brought under the California [Fair Employment and Housing Act], we have held that it is not preempted by section 301.”) (collecting cases).”  Reece v. Houston Lighting & Power Co., 79 F.3d 485, 487 (5th Cir. 1996) [emphasis added].

Moreover, the United States Supreme Court held that Section 301 did not preempt a plaintiff’s state law claim for retaliatory discharge.  Lingle, 486 U.S. at 405–06.  The Court rejected the employer’s argument that defending against a claim for retaliatory discharge necessarily required interpretation of the collective bargaining agreement.  Id. at 407 [“to defend against a retaliatory discharge claim, an employer must show that it had a nonretaliatory reason for the discharge . . . this purely factual inquiry likewise does not turn on the meaning of any provision of a collective-bargaining agreement.”].

States may provide substantive rights to workers that apply without regard to a collective bargaining agreement; a state court suit seeking to vindicate these rights is preempted only if it “requires the interpretation of a collective-bargaining agreement.”  Lingle, 486 U.S. at 413.  

In Lingle, the plaintiff’s union filed a grievance alleging discharge without just cause against her employer pursuant to a CBA at the same time the plaintiff filed a suit in state court for retaliatory discharge under Illinois’ state law.  The Court held that the plaintiff’s suit was not preempted: “[E]ven if dispute resolution pursuant to a collective-bargaining agreement, on the one hand, and state law, on the other, would require addressing precisely the same set of facts, as long as the state-law claim can be resolved without interpreting the agreement itself, the claim is ‘independent’ of the agreement for § 301 pre-emption purposes.”  Id. at 409–10.  

Author: Richard Hoyer
Category: Legal Procedure
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