Opinion
No. C-04-3091 MMC.
September 29, 2004
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS; VACATING HEARING (Docket No. 4)
Before the Court is the motion, filed August 2, 2004 by defendants Operating Engineers Local Union No. 3 ("OE3") and John Bonilla ("Bonilla"), to dismiss the abovetitled action. Plaintiff Jeff Hubins ("Hubins") has opposed the motion, to which defendants have replied. Having reviewed the papers filed in support of and in opposition to the motion, the Court finds the matter appropriate for determination without oral argument, see Civil L.R. 7-1(b), and hereby VACATES the October 1, 2004 hearing on the matter. For the reasons set forth below, the Court GRANTS in part and DENIES in part the motion.
BACKGROUND
Unless otherwise noted, the following statement summarizes the allegations of the complaint, and is taken as true for purposes of the instant motion to dismiss.
Hubins was hired by OE3 as an attorney in its contract and collective bargaining division on or about April 21, 2003. (See Compl. ¶ 5.) Hubins was not covered by a collective bargaining agreement. (See id.)
Defendant Bonilla is the Business Manager for OE3. (See id. ¶ 3.) As Business Manager, Bonilla acted as Chief Executive Officer of OE3 and is responsible for controlling all union activity and business of OE3. (See id.)
In May 2003, Bonilla "made demands on Hubins that Hubins make a financial contribution to Bonilla in order to support Bonilla in an internal OE3 election." (See id. ¶ 6.) The election was held in August 2003 and Bonilla was elected assistant Business Manager and President. (See id.) Hubins refused to make the political contribution that Bonilla had demanded. (See id. ¶ 7.) Thereafter, on at least three occasions, Hubins was warned by Bonilla and others that because of that refusal, Hubins would "have trouble with the Union and trouble with his employment at the OE3." (See id.)
In July 2003, Hubins was promoted to "Director of Contracts" and given a raise. (See id. ¶ 8.) In October 2003, Don Doser ("Doser"), then OE3's Business Manager, gave Hubins another raise. (See id.) Hubins was told by an OE3 official in November 2003 that Hubins would not receive the raise until he contributed to the election. (See id.)
In November 2003, due to illness, Doser was replaced as Business Manager by Bonilla. (See id. ¶ 9.) One of Bonilla's first acts as Business Manager was to rescind Hubins' October pay raise, because, according to Hubins, he refused to make the election contribution Bonilla had previously demanded. (See id.) Bonilla also appointed a new Executive Director of Contracts, thereby effectively demoting Hubins. (See id.) When Hubins complained, Bonilla told Hubins that he would be terminated if he pursued the issue. (See id.)
According to Hubins, OE3 has withheld from each of his paychecks the sum of $39.00 for "Supplemental Union Dues" and withholds a similar amount from the paycheck of every union employee even though none of the employees agreed to any such amount being withheld and even though those employees are not covered by a collective bargaining agreement. (See id. ¶¶ 13-14.)
On or about March 2, 2004, Hubins sent an email, which he alleges was a request to take time off under the Family Medical Leave Act ("FMLA") after his wife delivered a baby in June 2004. (See Compl. ¶ 10.) That email, which was addressed to Mariano Gonzalez, states:
Neither the complaint nor the parties' briefing on the instant motion identifies Gonzalez's role at OE3.
As you know, my wife and I are having a baby in the end [of] June. We cannot be absolutely certain because the timing is never entirely determined by science or us. As soon as the baby is born I will use some available vacation time to stay at home. I also want to take FMLA and CFRA leave to care for the new born near the end of Summer when we have the bulk of our busy work behind us. As I discovered this year, we are still really busy even during the "slow time" of the year.
I need to take my time off pursuant to our (OE3) leave policy. I am not aware that we have one. Would you please advise me on how to take CFRA and FMLA leave in a manner that does not run afoul of our practice or policy.
(See Goff Decl. ¶ 7 and Ex. C.) On March 5, 2004, three days after sending this email, Hubins was terminated from his employment. (See Compl. ¶ 10.) Although Hubins was told that his termination was a result of a reduction in work force, OE3 promptly began to recruit individuals to fill the vacancy created and has hired additional personnel to fill Hubins' position. (See id. ¶ 11.)
Hubins contends that OE3 demoted him, rescinded the pay raise given to him by Doser, and, ultimately, terminated him, all in retaliation for his refusal to make the demanded election contribution. On June 25, 2004, Hubins filed a complaint against OE3 and Bonilla in the Superior Court for the County of Alameda in which he asserts eight causes of action: (1) retaliation in violation of the FMLA, 29 U.S.C. § 2601; (2) wrongful termination in violation of the public policy expressed in the FMLA; (3) violation of the California Family Rights Act ("CFRA"), Cal. Gov. Code § 12945.2; (4) wrongful termination in violation of the public policy expressed in the CFRA; (5) violation of California Labor Code § 1101 and 1102; (6) violation of California Business and Professions Code § 17200, based on violations of California Labor Code §§ 216, 221 and 224; (7) intentional infliction of emotional distress; and (8) recovery of civil penalties, pursuant to Cal. Lab. Code § 2698.
Hubins' state court action was removed to federal court on July 29, 2004, and initially assigned to Magistrate Judge Bernard Zimmerman. Defendants filed the instant motion to dismiss on August 2, 2004 and noticed it for hearing on September 15, 2004. When the case was reassigned to the undersigned, defendants renoticed their motion for hearing on October 1, 2004.
LEGAL STANDARD
A motion to dismiss under Rule 12(b)(6) cannot be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." See Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. See Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990).
Generally, a district court, in ruling on a Rule 12(b)(6) motion, may not consider any material beyond the pleadings. See Hal Roach Studios, Inc. v. Richard Feiner And Co., Inc., 896 F.2d 1542, 1555 n. 19 (9th Cir. 1990). Material that is properly submitted as part of the complaint, however, may be considered.See id. Documents whose contents are alleged in the complaint, and whose authenticity no party questions, but which are not physically attached to the pleading, also may be considered. See Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). In addition, the Court may consider any document "the authenticity of which is not contested, and upon which the plaintiff's complaint necessarily relies," regardless of whether the document is referred to in the complaint. See Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998). Finally, the Court may consider matters that are subject to judicial notice. See Mack v. South Bay Beer Distributors, Inc., 798 F.2d 1279, 1282 (9th Cir. 1986).
In analyzing a motion to dismiss, the Court must accept as true all material allegations in the complaint, and construe them in the light most favorable to the nonmoving party. See NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). The Court may disregard factual allegations if such allegations are contradicted by the facts established by reference to exhibits attached to the complaint.See Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). Conclusory allegations, unsupported by the facts alleged, need not be accepted as true. See Holden v. Hagopian, 978 F.2d 1115, 1121 (9th Cir. 1992).
DISCUSSION
A. FMLA and CFRA Claims
Defendants move to dismiss Hubins' claims for violation of the FMLA and the CFRA on the ground that Hubins never requested leave under those statutes.
The FMLA provides, in relevant part: "[A]n eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period . . . [b]ecause of the birth of a son or daughter and in order to care for such son or daughter." See 29 U.S.C. § 2612(a)(1)(A). The FMLA makes it unlawful "for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under [the FMLA]." See 29 U.S.C. § 2615(a)(1). Where practicable, the employee is required to "provide the employer with not less than 30 days' notice, before the date the leave is to begin, of the employee's intention to take leave" under the FMLA. See 29 U.S.C. § 2612(e)(1). The Code of Federal Regulations provides, with respect to the method of requesting leave under the FMLA:
An employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave. The employee need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed for an expected birth or adoption, for example. The employer should inquire further of the employee if it is necessary to have more information about whether FMLA leave is being sought by the employee, and obtain the necessary details of the leave to be taken.See 29 C.F.R. § 825.302(c).
The CFRA affords similar protections under California law. The CFRA provides, in relevant part: "[I]t shall be an unlawful employment practice for any employer . . . to refuse to grant a request by an employee with more than 12 months of service with the employer, and who has at least 1,250 hours of service with the employer during the previous 12-month period, to take up to a total of 12 workweeks in any 12-month period for family care and medical leave." See Cal. Gov. Code § 12945.2(a). The CFRA further provides: "It shall be an unlawful employment practice for an employer to . . . discharge . . . any individual because of . . . [a]n individual's exercise of a right to family care and medical leave provided by subdivision (a)."See Cal. Gov. Code § 12945.2(l). With respect to the method of requesting leave under the CFRA, the California Code of Regulations provides:
An employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs CFRA-qualifying leave, and the anticipated timing and duration of the leave. The employee need not expressly assert rights under CFRA or FMLA, or even mention CFRA or FMLA, to meet the notice requirement; however, the employee must state the reason the leave is needed, such as, for example, the expected birth of a child or for medical treatment. The employer should inquire further of the employee if it is necessary to have more information about whether CFRA leave is being sought by the employee and obtain the necessary details of the leave to be taken.See Cal. Code Regs. tit. 2, § 7297.4(a)(1).
The Court agrees with Hubins that defendants' motion to dismiss these claims on the ground that Hubins never requested FMLA or CFRA leave is meritless. Although Hubins does not allege the precise content of the email in which he contends he requested such leave, he alleges that such email was sent on or about March 2, 2004. (See Compl. ¶ 10.) Defendants have submitted a copy of an email, dated March 2, 2004, from Hubins to Gonzalez in which Hubins inquires about family leave (see Goff Decl. ¶ 7 and Ex. C); Hubins does not dispute its authenticity. Accordingly, the Court may consider the email in ruling on the instant motion to dismiss. See Branch, 14 F.3d at 454 (holding court, in ruling on a Rule 12(b)(6) motion to dismiss, may consider "documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading").
In his March 2, 2004 email, Hubins expressly states that he "want[s] to take FMLA and CFRA leave to care for the new born near the end of Summer when we have the bulk of our busy work behind us" and asks Gonzalez to "please advise [him] on how to take CFRA and FMLA leave in a manner that does not run afoul of [OE3's] practice or policy." (See Goff Decl. Ex. C.) Viewing the email in the light most favorable to Hubins, he has adequately alleged that he requested leave under the FMLA and the CFRA. If defendants were unsure as to whether Hubins had requested such leave, they had the burden, under both the FMLA and the CFRA, of inquiring whether Hubins was actually seeking such leave. See 29 C.F.R. § 825.302(c); Cal. Code Regs. tit. 2, § 7297.4(a)(1); see also Xin Liu v. Amway Corp., 347 F.3d 1125, 1135 (9th Cir. 2003) (noting that regulations do not require employees to expressly assert rights under the FMLA and holding that "[i]t is the employer's responsibility to determine when FMLA leave is appropriate, to inquire as to specific facts to make that determination, and to inform the employee of his or her entitlements").
Accordingly, defendants' motion to dismiss Hubins' first four claims, for retaliation in violation of the FMLA and the CFRA and for wrongful termination in violation of the public policy expressed in the FMLA and the CFRA, on the ground that Hubins never requested leave under the FMLA or the CFRA, is DENIED.
B. Claim For Violation of California Labor Code §§ 1101 and 1102
Hubins alleges that defendants demoted him, revoked a previously awarded pay raise, and terminated him, in part because of his refusal to make a "contribution" to Bonilla and other newly-elected OE3 officials. (See Compl. ¶¶ 44-45.) Hubins contends that defendants' conduct violated §§ 1101 and 1102 of the California Labor Code. Section 1101 provides:
No employer shall make, adopt, or enforce any rule, regulation, or policy:
(a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office.
(b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.
Cal. Lab. Code § 1101. Section 1102 provides: "No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity." Cal. Lab. Code § 1102.
Defendants move to dismiss Hubins' claim for violation of §§ 1101 and 1102 on two distinct grounds. First, defendants argue that Hubins' claims is preempted by the Labor Management Relations and Disclosure Act ("LMRDA"), 29 U.S.C. § 401 et seq. Second, defendants argue that Hubins has not alleged that he engaged in "political activity" within the meaning of §§ 1101 and 1102.
The United States Supreme Court has held that the LMRDA "was the product of congressional concern with widespread abuses of power by union leadership" and was enacted with the "primary objective of ensuring that unions would be democratically governed and responsive to the will of their memberships." See Finnegan v. Leu, 456 U.S. 431, 435-36 (1982). The LMRDA provides, in relevant part, that "[e]very member of a labor organization shall have equal rights and privileges within such organization . . . to vote in elections or referendums of the labor organization" and that "[e]very member of any labor organization shall have the right to meet and assemble freely with other members; and to express any views, arguments, or opinions; and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting, subject to the organization's established and reasonable rules pertaining to the conduct of meetings[.]" See 29 U.S.C. § 411(a)(1) and (a)(2). A labor organization, as well as its officers and representatives, may not "fine, suspend, expel, or otherwise discipline any of its members for exercising any right to which he is entitled under [the LMRDA]." See 29 U.S.C. § 529.
In enacting the LMRDA, "it was rank-and-file union members — not union officers or employees, as such — whom Congress sought to protect." See id. at 436. In Finnegan, the Supreme Court held that union business agents who were terminated from their employment by a new union president, after an election in which the business agents supported his unsuccessful opponent, did not state a claim for violation of the LMRDA because "the ability of an elected union president to select his own administrators is an integral part of ensuring a union administration's responsiveness to the mandate of the union election." See id. at 441. The Court noted that "[n]o doubt this poses a dilemma for some union employees; if they refuse to campaign for the incumbent they risk his displeasure, and by supporting him risk the displeasure of his successor." See id. at 442. Nonetheless, "Congress simply was not concerned with perpetuating appointed union employees in office at the expense of an elected president's freedom to choose his own staff." See id.
The Ninth Circuit has never decided the precise extent to which the LMRDA may preempt state law causes of action, although it has addressed the issue in the context of one type of wrongful discharge. In particular, in Bloom v. General Truck Drivers, Office, Food Warehouse Union, Local 952, 783 F.2d 1356 (9th Cir. 1986), Bloom, who held the appointed positions of union business agent coordinator and business manager and the elected position of Recording Secretary, lost an election for the position of Secretary-Treasurer and was thereafter terminated from his position as business agent coordinator by Montgomery, his successful opponent for the Secretary-Treasurer position.See id. at 1357. In his position as Recording Secretary, Bloom later protested the alteration of minutes of a union meeting to cover up an unauthorized expenditure of funds by other union officers; nine days later, Montgomery, who believed that Bloom intended to run against him in an upcoming election, terminated Bloom from his position as business manager. See id. Bloom brought a state law action for wrongful discharge against his union, Montgomery, and others, alleging that he was terminated for resisting pressure to falsify union minutes. See id. at 1360. The district court granted summary judgment for the defendants, finding the cause of action preempted by the LMRDA. See id. at 1358, 1360.
The Ninth Circuit reversed, holding that the claim was not preempted by the LMRDA. See id. at 1362. The Ninth Circuit first noted that in determining whether federal labor law preempts a state law cause of action, the proper approach is "to balance state and federal interests." See id. at 1360. It found that California had a strong interest in preventing embezzlement and "in seeing that employees are not coerced by threat of discharge into committing or abetting the crime" and that a state law cause of action "for wrongful discharge based on refusal to submit to such coercion is a necessary deterrent to both the coercion and the crime itself." See id. at 1361. The Ninth Circuit then turned to the federal policy underlying the LMRDA, and noted, relying on Finnegan, that "[t]he federal interest in promoting union democracy and the rights of union members . . . includes an interest in allowing union leaders to discharge incumbent administrators." See id. at 1361-62. The court noted, however, that it did not need to decide "whether allowing a state cause of action for wrongful discharge would generally undermine this federal interest and rob the union leader of discretion needed to serve the wishes of the membership and thus the purpose of the [LMRDA]" because "the kind of discharge alleged, retaliation for refusal to commit a crime and breach a trust, is not the kind sanctioned by the [LMRDA]."See id. at 1362. "Protecting such a discharge by preempting a state cause of action based on it does nothing to serve union democracy or the rights of union members; it serves only to encourage and conceal such criminal acts and coercion by union leaders." Id. The court also noted that "the state cause of action actually advances the purpose of the [LMRDA]" because one portion of the Act prohibits the very acts of embezzlement alleged but "lacks any mechanism for preventing the coercive firings that might aid violation of those provisions." See id. The court concluded: "Where, as here, a union employee bases a wrongful discharge action on allegations that he was fired for refusing to violate state law, that cause of action is not preempted by the federal labor policies reflected in the LMRDA or Finnegan v. Leu." Id. at 1362. Bloom, however, is not controlling in the instant case, as Bloom specifically alleged that he was not fired for political reasons, see Bloom, 783 F.2d at 1360, while Hubins alleges that he was terminated because he refused to contribute to the election campaigns of Bonilla and others. See Compl. ¶ 45.
With respect to terminations for political reasons, a California court of appeal has held, expressly, that state law actions by policymaking or "confidential" union employees for wrongful termination in violation of the public policy expressed in sections 1101 and 1102 of the California Labor Code are preempted by the LMRDA. See Thunderburk v. United Food Commercial Workers' Union, Local 324, 92 Cal. App. 4th 1332, 1346 (2001). In Thunderburk, a secretary for a union expressed her opposition to a ballot proposition favored by the union and was thereafter terminated. See id. at 1336. The Court of Appeal held that her claims for wrongful discharge in breach of an implied contract and the implied covenant of good faith and fair dealing were preempted by the LMRDA, and further held that the trial court properly denied her motion for leave to amend her complaint to add a cause of action for wrongful termination in violation of the public policy expressed in §§ 1101 and 1102 because that claim was also preempted by the LMRDA. See id. at 1343, 1346.
The court first noted that the California Supreme Court had held that a union business agent's action against his union for wrongful termination in violation of the implied covenant of good faith and fair dealing was preempted by the LMRDA because "[p]ermitting former union employees who held management or policymaking positions to bring state actions against the unions which employed them, or against the officials of such unions, premised on their discharge, would undermine the ability of elected union leaders to effectuate the will and policies of the union membership they represent." See id. at 1338 (quotingScreen Extras Guild, Inc. v. Superior Court, 51 Cal. 3d 1017, 1020-21 (1990)). The court noted that the California Supreme Court, in Screen Extras Guild, also stated that "to allow such actions to be brought by former confidential . . . employees of labor unions would be inconsistent with the objectives of the LMRDA and with the strong federal policy favoring union democracy that it embodies," see Screen Extras Guild, 51 Cal. 3d at 1024, and that the United States Supreme Court, in Finnegan, also suggested that unions have an unlimited right to terminate confidential employees, see Thunderburk, 92 Cal. App. 4th at 1339 (citing Finnegan, 456 U.S. at 441 n. 11). Like policymaking employees, employees with access to sensitive and confidential union information can "thwart implementation of union policies and programs advanced by elected union officials and thus frustrate the ability of elected officials to carry out the mandate of the union members." See Thunderburk, 92 Cal. App. 4th at 1339. Thus, the court of appeal found that although the plaintiff in Thunderburk was a union secretary with no policymaking or management responsibilities, she had access to confidential information, which, if disclosed, could have thwarted union policies and objectives, and thus was a confidential employee within the meaning of the LMRDA. See id. at 1343. Consequently, her claims that she was terminated in breach of an implied contract and the implied covenant of good faith and fair dealing were preempted. See id. at 1343.
The court further found that the trial court properly denied her motion for leave to amend her complaint to add a claim for wrongful termination in violation of the public policy embodied in §§ 1101 and 1102 of the California Labor Act because any such claim was also preempted by the LMRDA. See id. at 1343-46. The court held:
A conflict exists between the public policy set forth in [§§ 1101 and 1102], which forms the basis of plaintiff's proposed cause of action, and the right of union officials under the LMRDA to freely "`choose a staff whose views are compatible with his own' [and] `to select his own administrators' as a way of `ensuring a union administration's responsiveness to the mandate of the union election.'"Id. at 1345 (quoting Hodges v. Drivers, Salesmen, etc., Local Union 695, 707 F.2d 961, 964 (7th Cir. 1983) (quotingFinnegan, 456 U.S. at 441)). The court concluded the union
had an unrestricted right to discharge plaintiff despite California legislation prohibiting termination based on an employee's political activities. Plaintiff's proposed cause of action for wrongful termination in violation of state law prohibiting termination based on political activity is preempted by federal legislation providing the union with a paramount interest in choosing loyal staff that is motivated to work in furtherance of the union's causes and policies and will not thwart union objectives.Id. at 1346.
The Court finds the Thunderburk opinion to be well-reasoned and the facts therein distinguishable from those in Bloom, as the plaintiff alleged in Bloom that he was wrongfully terminated for failing to violate state law that did not conflict with the LMRDA. See Bloom, 783 F.2d at 1361. By contrast, in the instant case, as in Thunderburk, the state law allegedly violated by the union does conflict with the LMRDA. See Thunderburk, 92 Cal. App. 4th at 1346. The court notes that Hubins occupied an even more confidential union position than the plaintiff in Thunderburk. While the plaintiff in that case was a union secretary, Hubins alleges that he was hired by OE3 as an attorney and that at the time of his termination, he was Director of Contracts. (See Compl. ¶¶ 5, 8.) As a union attorney, Hubins necessarily would have been privy to confidential union information. As the LMRDA permits a union to terminate confidential union employees for political reasons, Hubins' claim for violation of §§ 1101 and 1102 of the California Labor Code is preempted by LMRDA, and the Court will grant defendants' motion to dismiss that claim.
In light of this ruling, the Court does not reach defendants' alternate argument that Hubins has not alleged he engaged in the type of political activity protected by §§ 1101 and 1102.
C. Claim For Intentional Infliction of Emotional Distress
Defendants move to dismiss Hubins' cause of action for intentional infliction of emotional distress on the ground that it is based entirely on his alleged wrongful termination in violation of §§ 1101 and 1102 and is thus preempted by the LMRDA as well. The Court agrees that to the extent Hubins' claim for intentional infliction of emotional distress is based on defendants' alleged violation of §§ 1101 and 1102, it is preempted by the LMRDA. See Screen Extras Guild, 51 Cal. 3d at 1032 (holding claim for intentional infliction of emotional distress preempted by LMRDA where claim was "simply [plaintiff's] wrongful termination claim in other guise"). Hubins' claim for intentional infliction of emotional distress is not, however, based solely on defendants' alleged violation of §§ 1101 and 1102, but incorporates the allegations of the preceding paragraphs of the complaint, including his allegations that he was terminated in violation of the FMLA and the CFRA. (See Compl. ¶ 56.) As there is no contention that Hubins' FMLA and CFRA claims are preempted by the LMRDA, and the Court has denied defendants' motion to dismiss Hubins' claims for violation of the FMLA and the CFRA, defendants' motion to dismiss his claim for intentional infliction of emotional distress, to the extent based on violations of those statutes, will be denied.
D. Claim For Violation of § 17200 of the California Business and Professions Code
Hubins alleges that OE3 improperly deducted $39.00 from his paycheck every week, without his permission, for "supplemental union dues," in violation of §§ 216, 221, and 224 of the California Labor Code. (See Compl. ¶ 50.) Hubins brings a representative action under § 17200 of the California Business and Professions Code on behalf of all current and past employees of the union who are not covered by a collective bargaining agreement; he seeks restitution of all amounts improperly withheld, within the past four years, from the paycheck of each such union employee, and injunctive relief. (See id. ¶¶ 53, 55.) Hubins also alleges that each such employee is entitled to waiting time penalties pursuant to §§ 201 through 203 of the California Labor Code as a result of defendants' improper paycheck deductions. (See id. ¶ 54.)
Section 17200 of the California Business and Professions Code defines "unfair competition" to include "any unlawful, unfair or fraudulent business act or practice." See Cal. Bus. Prof. Code § 17200. The Legislature intended this sweeping language to include anything that can properly be called a business practice and that at the same time is forbidden by law. See Bank of the West v. Superior Court, 2 Cal. 4th 1254, 1266 (1992). "Virtually any law — federal, state or local — can serve as a predicate for a section 17200 action." State Farm Fire Casualty v. Superior Court, 45 Cal. App. 4th 1093, 1102-03 (1996). Section 17203 provides that acts of unfair competition may be enjoined and that the defendant may be ordered "to restore to any person in interest any money or property, real or personal, which may have been acquired by means of such unfair competition." See Cal. Bus. Prof. Code § 17203. Actions under § 17200 may be brought "by any person acting for the interests of itself . . . or the general public." See Cal. Bus. Prof. Code § 17204.
Section 216 of the California Labor Code makes it a misdemeanor for any person to "willfully refuse to pay wages due and payable after demand has been made." See Cal. Lab. Code § 216. Pursuant to § 221, it is "unlawful for any employer to collect or receive from an employee any part of wages theretofore paid by said employer to said employee." See Cal. Lab. Code § 221. Section 224 permits an employer to make deductions from an employee's paycheck "when the employer is required or empowered to do so by state or federal law or when a deduction is expressly authorized in writing by the employee to cover insurance premiums, hospital or medical dues, or other deductions not amounting to a rebate or deduction from the standard wage arrived at by collective bargaining or pursuant to a wage agreement or statute, or when a deduction to cover health and welfare or pension plan contributions is expressly authorized by a collective bargaining or wage agreement." See Cal. Lab. Code § 224. Sections 201 and 202 of the Labor Code require an employer to pay promptly all wages due to an employee who has resigned or been terminated. See Cal. Lab. Code §§ 201, 202. Section 203 provides that "[i]f any employer willfully refuses to pay . . . any wages of an employee who is discharged or quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; but the wages shall not continue for more than 30 days." See Cal. Lab. Code § 203.
Defendants move to dismiss Hubins' § 17200 claim on two grounds: (1) that Hubins authorized the deduction from his paycheck; and (2) that the claim is preempted by the National Labor Relations Act ("NLRA).
In their reply, defendants raise the additional arguments that Hubins has failed to allege facts sufficient to state a violation of §§ 216, 221, and 224 and that his claim is timebarred. The Court declines to consider these new arguments because they were not raised in defendants' opening brief. See, e.g., Lentini v. California Center for the Arts, Escondido, 370 F.3d 837, 843 n. 6 (9th Cir. 2004) (refusing to consider argument raised for the first time in reply because opposing party had no opportunity to respond).
1. Authorized Deduction
Hubins expressly alleges that he did not consent to OE3's deduction from his paycheck of $39.00 per week for "supplemental union dues." (See Compl. ¶ 50.) Defendants, in their opposition, submit a copy of a document entitled "Supplemental Dues Authorization Card," apparently signed by Hubins on April 21, 2003, which provides, in part: "I hereby authorize the deduction from my vacation plan account each pay period of an amount equal to the hourly supplemental dues established by Operating Engineers Local Union No. 3[.]" (See Goff Decl. Ex. B.) Hubins, in reply, attests that this document authorized deductions from his vacation pay account, not his paycheck, and further attests that he never had a vacation pay account. (See Hubins Decl. ¶ 5.)
Assuming, arguendo, the Court may consider the "Supplemental Dues Authorization Card" in ruling on defendants' motion to dismiss, the document, on its face, authorizes deductions from a vacation pay account, not from Hubins' paycheck. (See Goff Decl. Ex. B.) Reading this document in the light most favorable to Hubins, it does not establish that he authorized deductions from his paycheck.
Accordingly, to the extent defendants' motion to dismiss Hubins' § 17200 claim is based on the assertion that Hubins consented to the subject deductions, the motion will be denied.
2. NLRA Preemption
Defendants additionally argue that Hubins' § 17200 claim is preempted by the NLRA under the doctrine of Garmon preemption, which "forbids state and local regulation of activities that are `protected by § 7 of the [NLRA], or constitute an unfair practice under § 8 [of the NLRA],'" and "prohibits regulation even of activities that the NLRA only arguably protects or prohibits."See Building and Construction Trades Council of the Metropolitan District v. Associated Builders and Contractors of Massachusetts/Rhode Island, Inc., 507 U.S. 218, 224-25 (1993) (citing San Diego Building Trades Council, Millmen's Union, Local 2020 v. Garmon, 359 U.S. 236, 244 (1959) and Wisconsin Dept. of Industry v. Gould, Inc., 475 U.S. 282, 286 (1986)) (emphasis in original)). "[T]he Garmon rule prevents States not only from setting forth standards of conduct inconsistent with the substantive requirements of the NLRA, but also from providing their own regulatory or judicial remedies for conduct prohibited or arguably prohibited by the Act." Wisconsin Dept. of Industry v. Gould, Inc., 475 U.S. at 286. "This rule of preemption is designed to prevent conflict between, on the one hand, state and local regulation and, on the other, Congress' `integrated scheme of regulation,' embodied in §§ 7 and 8 of the NLRA, which includes the choice of the [National Labor Relations Board ("NLRB")], rather than state or federal courts, as the appropriate body to implement the Act." See Building and Construction Trades Council, 507 U.S. at 225 (quoting Garmon, 359 U.S. at 247).
Section 7 of the NLRA provides: "Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a)(3)[.]" 29 U.S.C. § 157 (emphasis added). Section 8 of the NLRA provides, in relevant part: "It shall be an unfair labor practice for an employer . . . to interfere with, restrain, or coerce employees in the exercise of rights guaranteed in section 157[.]" 29 U.S.C. § 158(a)(1). Defendants argue that Hubins' § 17200 claim, based on the allegation that OE3 deducted union dues from his paycheck without his permission, addresses conduct that is arguably within the scope of conduct that is prohibited by §§ 7 and 8 of the NLRA and thus is subject toGarmon preemption. See, e.g., NLRB v. Michigan Conference of Teamsters Welfare Fund, 13 F.3d 911, 916 (6th Cir. 1993) (holding employer violates § 8 of the NLRA by deducting union dues from wages in absence of valid union contract); United Food and Commercial Workers District Union Local One, AFL-CIO v. NLRB, 975 F.2d 40, 43-44 (2d Cir. 1992) (holding deduction of union dues from employee paycheck without authorization from employee violates NLRA); NLRB v. Jayar Metal Finishing Corp., 297 NLRB 603, 606, 608 (1990) (finding employer violated NLRA by deducting union dues from paychecks of employees who had not authorized such deductions).
The Court agrees with defendants that state law claims based on an employer's unauthorized deduction of union dues from employees' paychecks are preempted by the NLRA, under the doctrine of Garmon preemption, because states may not "provid[e] their own regulatory or judicial remedies for conduct prohibited or arguably prohibited by the [NLRA]." See Wisconsin Dept. of Industry v. Gould, Inc., 475 U.S. at 286. Accordingly, the Court will grant defendants' motion to dismiss Hubins' § 17200 claim. E. Claim For Civil Penalties Under § 2698 of the California Labor Code
The Court recognizes that a California appellate court recently held that the NLRA did not preempt the plaintiffs' claims that their employer incorrectly calculated bonuses in violation of California Labor Code § 221, one of the statutes that form the basis for Hubins' § 17200 claim. See Prachasaisoradej v. Ralphs Grocery Co., 2004 WL 1987663 (Cal.App. Sept. 8, 2004). As that case did not involve the deduction of union dues, it is distinguishable on its facts, and otherwise provides no guidance with respect to the issue currently before this Court.
Hubins' last cause of action is for civil penalties under the Labor Code Private Attorneys General Act of 2004, California Labor Code § 2698 et seq. Pursuant to § 2699, "any provision of [the Labor Code] that provides for a civil penalty to be assessed and collected by the Labor and Workforce Development Agency or any of its departments, divisions, commissions, boards, agencies, or employees for a violation of [the Labor Code], may, as an alternative, be recovered though a civil action brought by an aggrieved employee on behalf of himself or herself and other current or former employees[.]" See Cal. Lab. Code § 2699(a). As this claim is entirely derivative of Hubins' other claims for violation of the California Labor Code, all of which have been dismissed as preempted by the LMRDA or NRLA, Hubins' claim for civil penalties pursuant to the Labor Code Private Attorneys General Act of 2004 also will be dismissed.
F. Claims Against Bonilla
Bonilla is a defendant to Hubins' remaining claims for violation of the FMLA and the CFRA, wrongful termination in violation of the public policy expressed in those statutes, and intentional infliction of emotional distress based on those alleged statutory violations. As Hubins does not allege that Bonilla had any personal involvement in Hubins' termination, however, Hubins has failed to state a claim against Bonilla.
Accordingly, defendants' motion to dismiss the remaining claims against Bonilla is GRANTED, with leave to amend.
CONCLUSION
For the reasons set forth above, defendants' motion to dismiss is hereby GRANTED in part and DENIED in part, as follows:
1. Defendants' motion to dismiss Hubins' first four claims, for retaliation in violation of the FMLA and the CFRA and for wrongful termination in violation of the public policy expressed in the FMLA and the CFRA, on the ground that Hubins never requested leave under the FMLA or the CFRA, is DENIED.
2. Defendants' motion to dismiss Hubins' claim for violation of §§ 1101 and 1102 of the California Labor Code on the ground that it is preempted by the LMRDA is GRANTED and that claim is DISMISSED.
3. Defendants' motion to dismiss Hubins' claim for intentional infliction of emotional distress is DENIED.
4. Defendants' motion to dismiss Hubins' claim for violation of § 17200 of the California Business and Professions Code on the ground that it is preempted by the NLRA is GRANTED and that claim is DISMISSED.
5. Defendants' motion to dismiss Hubins' claim for civil penalties pursuant to the Labor Code Private Attorneys General Act of 2004 is GRANTED and that claim is DISMISSED.
6. Defendants' motion to dismiss Hubins' remaining claims against Bonilla, for violation of the FMLA and the CFRA, wrongful termination in violation of the public policy expressed in those statutes, and intentional infliction of emotional distress, is GRANTED, with leave to amend.
7. Hubins may file an amended complaint no later than 21 days from the date of this order. If he fails to do so, his claims against Bonilla will be deemed dismissed with prejudice.
This order terminates Docket No. 4.
IT IS SO ORDERED.