Opinion
No. C 01-01348 WHA
June 21, 2001
ORDER GRANTING PLAINTIFF'S MOTION TO REMAND, GRANTING PLAINTIFF'S MOTION FOR FEES AND COSTS, AND CLOSING FILE
INTRODUCTON
Defendants removed this case to federal court, alleging that plaintiff's state-law causes of action are subject to complete preemption by Section 301 of the Labor Management Relations Act. This order holds that neither of plaintiff's causes of action will require interpretation of the collective-bargaining agreement, and remands the case to the San Francisco Superior Court.
STATEMENT
According to the complaint, for 20 years, plaintiff Zelbert Davis was a janitorial employee of the Chevron Real Estate Management Company (CREMCO). For much of his career, he worked for CREMCO in the Chevron Headquarters Building at 575 Market Street, San Francisco. In December 1999, he earned approximately $14.03 per hour. Then, the maintenance contract at 575 Market Street was taken over by defendant ABM Industries, Inc., sued as American Building Maintenance Company, Inc. ABM hired plaintiff as a janitor and paid him an hourly wage of $10.07.
Plaintiff was unhappy with the lower wage rate. He alleges that he believed in good faith that the law required defendants to provide his prior rate of pay. He spoke to an ABM supervisor about the drop in pay, without results. He then contacted Chevron human resources personnel and the 575 Market Street property manager, Michael Murphy of Tishman-Speyer, and informed them of the situation.
Following these contacts, plaintiff alleges that his supervisors at ABM told him that "his comments about his wages meant he wasn't a `team player' and that if he didn't like how they were running things he should move on" (Compl. 13). Thereafter, Mr. Murphy contacted plaintiff and told him that he had not forgotten the discussion about pay, that he had instructed ABM to give plaintiff a substantial raise after plaintiff passed his first 30 days of work under the new ABM contract, and that he would get back to plaintiff soon with more information. On January 6, 2000, however, plaintiff was dropped off the ABM work list and was no longer employed at 575 Market Street. Throughout his employment by ABM, plaintiff alleges, he continued to work competently despite his dissatisfaction over his rate of pay.
Plaintiff and defendants agreed to toll the statute of limitations for all plaintiffs potential claims from December 6, 2000, through March 5, 2001. On March 9, 2001, plaintiff filed a complaint in San Francisco Superior Court. He alleged two state-law causes of action: first, wrongful termination in violation of public policy and, second, unlawful/unfair business practices in violation of Section 17200 of the California Business and Professions Code. Defendants filed a notice of removal on April 5, 2001, and plaintiff filed this motion to remand on May 16, 2001.
ANALYSIS
Defendants removed this case under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. Section 301 of the LMRA preempt only state-law "claims founded directly on rights created by collective-bargaining agreements, and also claims substantially dependent on analysis of a collective-bargaining agreement." Cramer v. Consolidated Freightways, Nos. 98-55652, 98-56041, 98-56154, 2001 WL 668923, at *10 (9th Cir. June 15, 2001) (en banc) (citations omitted). This is to ensure uniform interpretation of collective-bargaining agreements and to promote the federal policy favoring arbitration of labor disputes. Balcorta v. Twentieth Century-Fox Film Corp., 208 F.3d 1102, 1108 (9th Cir. 2000). Complaint's of employees covered by a collective-bargaining agreement are not preempted if their claims are unrelated to the terms of the collective-bargaining agreement, however. Cramer, 2001 WL 668923, at *10. For a claim not based directly on rights created by a collective-bargaining agreement to be preempted by Section 301, invoking removal to federal courts, the removing defendant must demonstrate that a specific provision in the collective-bargaining agreement requires interpretation. "[W]hen the meaning of the terms of a collective bargaining agreement are not disputed, the mere fact that a collective bargaining agreement will be consulted in the course of state law litigation does not require preemption." Niehaus v. Greyhound Lines, Inc., 173 F.3d 1207, 1212 (9th Cir. 1999). The Ninth Circuit has clarified that in the context of Section 301 complete preemption, "the term `interpret' is defined narrowly — it means something more than `consider,' `refer to,' or `apply.'" Balcorta, 208 F.3d at 1108.
ABM is a party to a collective-bargaining agreement with Service Employees International Union, Local 87 (Opp. 3; Mason Decl. Exh. A). Although not a member of the union, plaintiff was a member of the bargaining unit because his job position was covered by the collective-bargaining agreement. He thus could allege a breach of' the collective-bargaining agreement and his claims may be subject to preemption. See J.I Case Co. v. NLRB, 321 U.S. 332, 336 (1944).
Defendants' opposition to the motion to remand purports only to argue that the second cause of action in the complaint, alleging a violation of Section 17200 of the California Business and Professions Code, necessitates an interpretation of the collective-bargaining agreement. Defendants' primary argument is that ABM's work rules for janitors require interpretation. The work rules, defendants argue, are part of the collective-bargaining agreement because they were promulgated under Section 22.1 of the collective-bargaining agreement, the management rights provision. The work rule in question states (Compl. ¶ 27):
The parties dispute whether the work rule, even if this case does require its interpretation, is part of the collective-bargaining agreement. Defendant cites Proctor Manufacturing corp., 131 N.L.R.B. 1166 (1961), to argue that the work rule is part of the collective-bargaining agreement. See also Harris v. Alumax Mill Products, Inc., 897 F.2d 400, 403 (9th Cir. 1990). Because neither the collective-bargaining agreement nor the work rule require interpretation, however, the Court need not reach this issue.
Do not approach customers, tenants or their employees for any reason. Discussion with tenants or building management regarding work assignments, complaints, etc. is grounds for immediate termination.
This rule requires interpretation, defendant argues, because of its apparent conflict with California Labor Code Section 232, which is alleged as a basis for plaintiff's second cause of action. Section 232 provides:
No employer shall do any of the following:
(a) Require, as a condition of employment, that any employee refrain from disclosing the amount of his or her wages.
(b) Require any employee to sign a waver or other document which purports to deny the employee the right to disclose the amount of his or her wages.
(c) Discharge, formally discipline, or otherwise discriminate against, for job advancement, an employee who discloses the amount of his or her wages.
Section 232 is rendered non-waivable by California Labor Code Section 219, which states that "no provision of this article can in any way be contravened or set aside by a private agreement, whether written, oral, or implied."
Defendant argues that the work rule requires this Court's interpretation to determine whether it "truly requires employees to `refrain from disclosing their wages' or whether it has some other benign and lawful purpose, such as directing employee work complaints through proper channels at ABM" (Opp. 7). The Ninth Circuit has rejected this reasoning, however. In Balcorta v. Twentieth Century-Fox Film Corp., 208 F.3d 1102, 1111 (9th Cir. 2000), the defendant argued that its payment schedule, challenged under California Labor Code Section 201.5, was authorized by the collective-bargaining agreement, and the collective-bargaining agreement had to be construed to establish whether its provision governing the payment of wages was ambiguous. The Ninth Circuit ruled that because Section 201.5 (like Section 232) was nonnegotiable under Section 219 and under Section 301 of the LMRA, only the state law need be interpreted, and the court did not need "even to refer to the collective bargaining agreement, let alone interpret it." Balcorta, 208 F.3d at 1111. The same is true here. Defendants may argue that plaintiff was not fired for disclosing his wages (the content of his conversation with Mr. Murphy) but rather for unauthorized communications with building management in violation of the work rule (the act of approaching Mr. Murphy), but this defense does not give rise to preemption under Section 301. See Caterpillar v. Williams, 482 U.S. 386, 398-99 (1997); Cramer, 2001 WL 668923, at *10, 14.
Defendants also argue that in order to establish a violation of either Labor Code Section 206 or Section 216, alleged by plaintiff to demonstrate plaintiffs good faith belief that he was not receiving pay due to him, plaintiff must establish that ABM violated Section 8 of the collective-bargaining agreement, which sets forth wages and progression rates (Opp.7). This argument is unclear at best. As a preliminary note, although defendants argue that plaintiffs second cause of action is preempted, Sections 206 and 216 are alleged in the complaint primarily in connection with the first cause of action, concerning wrongful termination in violation of public policy. Moreover, defendants have not pointed to any ambiguity in Section 8 of the collective-bargaining agreement requiring interpretation, but rather argue that the Court will need to assess whether ABM properly applied that provision. The Ninth Circuit recently held that "alleging a hypothetical connection between the claim and the terms of the CBA is not enough to preempt the claim: adjudication of the claim must require interpretation of a provision of the CBA." (Cramer, 2001 WL 668923, at * 15. In any case, whether plaintiffs wages were due under Sections 206 and 216 and under Section 8 of the collective-bargaining agreement is not material to the resolution of either cause of action. Plaintiff alleges that he was terminated for discussing his complaint with the 575 Market Street property manager. Both plaintiff's alleged good-faith belief that he was entitled to additional wages and the collective-bargaining agreement's wages provisions are irrelevant to this question. At oral argument, plaintiffs counsel expressly disclaimed any argument that the collective-bargaining agreement itself was violated or that its terms were ambiguous. A case is not preempted under Section 302 because of the mere presence of a collective-bargaining agreement governing plaintiffs employment and pay scale where defendants can not identify any disputed provision in the agreement and where the meaning of the agreement, whether disputed or not, is not material to the resolution of plaintiffs claim. On the contrary, a "state law claim is not preempted under § 301 unless it necessarily requires the court to interpret an existing provision of a CBA that can reasonably be said to be relevant to the resolution of the dispute." Id. at 18.
California Labor Code Section 206 provides:
206. Payment of undisputed amount; failure to pay determined amount; treble damages
(a) In case of a dispute over wages, the employer shall pay, without condition and within the time set by this article, all wages, or parts thereof conceded by him to be due, leaving to the employee all remedies he might otherwise be entitled to as to any balance claimed.
(b) If, after an investigation and hearing, the Labor Commisioner has determined the validity of any employee's claim for wages, the claim is due and payable within 10 days after receipt of notice by the employer that such wages are due. Any employer having the ability to pay who willfully fails to pay such wages within 10 days shall, in addition to any other applicable penalty, pay treble the amount of any damages accruing to the employee as a direct and foreseeable consequence of such failure to pay.
California Labor Code Section 216 provides:
216. Refusal to make payment; false denial of amount or validity of wages; misdemeanor
In addition to any other penalty imposed by this article, any person, or an agent, manager, superintendent, or officer thereof is guilty of a misdemeanor, who:
(a) Having the ability to pay, willfully refuses to pay wages due and payable after demand has been made.
(b) Falsely denies the amount or validity thereof, or that the same is due, with intent to secure for himself, his employer or other person, any discount upon such indebtedness, or with intent to annoy, harass, oppress, hinder, delay, or defraud, the person to whom such indebtedness is due.
Because defendants have failed to show that any of plaintiffs claims require interpretation of the collective-bargaining agreement, this Court lacks jurisdiction over the case and remand is appropriate.
* * *
Plaintiff also requests an award of attorney fees pursuant to 28 U.S.C. § 1447 (c), under which "[a]n order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal." A court has "wide discretion" in deciding whether to award attorney fees. Moore v. Permanente Medical Group, 981 F.2d 443, 447 (9th Cir. 1992). The award of attorney fees "is not a punitive award against defendants; it is simply reimbursement to plaintiffs of wholly unnecessary litigation costs the defendant inflicted." Ibid. While no showing of bad faith by defendants is required to impose costs and fees, however, some showing beyond the bare fact of remand is necessary to justify an award of fees. See, e.g. Teitelbaum v. Soloski, 843 F. Supp. 614, 616 (C.D. Cal. 1994). "If the court finds that there was not a reasonable basis for removal, then the court has the discretion to award fees." Draper v. Erb, No. C-93-4600 MHP, 1994 WL 478821, at *2 (N.D. Cal. Aug. 25, 1994). Here, defendants filed a vaguely-worded notice of removal without pointing to the specific provisions of the collective-bargaining agreement requiring interpretation. In response to plaintiff's motion to remand, they argued (as far as can be understood from their brief) only that one of the two causes of action was preempted. That argument was conclusory and relied on a mis-reading of Balcorta, a case with very similar facts. Even at oral argument defense counsel was unable to identify any ambiguity in the collective-bargaining agreement requiring interpretation. Ninth Circuit case law "does permit an award of fees when a defendant's removal, while `fairly supportable,' was wrong as a matter of law." Balcorta, 208 F.3d at 1106 n. 6. Plaintiffs request for $4582.50 in reasonably-incurred fees and costs is granted.
CONCLUSION
Plaintiff's motion to remand is GRANTED. Plaintiffs motion for fees and costs is GRANTED. This case is REMANDED to San Francisco Superior Court. The Clerk SHALL close the file.