Opinion
Civil No. 00-883-KI
October 31, 2000
Hardy Myers, Attorney General, David A. Landnini, Assistant Attorney General, Department of Justice, Salem, Oregon, for Plantiff
Attorneys for Oregon Bureau of Labor and Industries (BOLI), Darryl Richardson, Vancouver, Washington, Pro Se Plaintiff
David P.R. Symes, Jay A. Zollinger, Perkins Cole LLP, Portland, Oregon, Attorneys for Defendant
OPINION AND ORDER
Darryl Richardson filed an administrative complaint against his employer, defendant US West Communications, Inc. ("US West"), with plaintiff Oregon Bureau of Labor and Industries ("BOLI"). US West removed the administrative proceeding to federal court. Before the court is BOLI's motion to remand (#5).
FACTS
The BOLL Specific Charges allege the following:
Richardson is a Customer Data Technician at US West and a union steward in the Communication Workers of America. On May 21, 1999, an OR-OSHA Safety Compliance Officer came to a US West facility to conduct an inspection. The inspector asked for an employee representative to be present during the inspection. Richardson received permission to be the representative and the inspection began. Although Richardson was asked to stop by his second level manager, Leila True, he continued to participate during the one and one-half day inspection which concluded on May 24. Richardson's supervisor, Mark Pottmeyer, told him that he could not participate in the closing meeting scheduled for May 26. On that same day, Pottmeyer also told Richardson, at True's direction, that he could not participate in union activities through the end of June 1999.
BOLI alleges the following violation and seeks $7,500 in damages for mental suffering:
[US West's] action, in trying to deny [Richardson] the opportunity to participate in the OR-OSHA inspection, in denying [Richardson] the opportunity to participate in the closing conference, and in severely curtailing [Richardson's] ability to engage in union activities, constitute discrimination based on [Richardson's] exercise of his rights under ORS 654.001 to 654.29 5 and 654.750 to 654.780. This is in violation of ORS 654.062(5)(a) and OAR 437-001-0295.
Specific Charges ¶ 11.
US West denies any discrimination. It had informed all of the stewards in the High Capacity crews, including Richardson, that time off for union activity would not be granted in June due to workload commitments. The collective bargaining agreement ("CBA") contains the following provision:
Section 15.13 Unless prevented by service requirements, the Company will grant any employee (except fill-time representatives of the Union) designated by the Union the total aggregate time off . . . to handle Union business.
US West removed the administrative proceedings to federal court before the contested case hearing took place in front of BOLI.
LEGAL STANDARDS
A civil action brought in state court may be removed by the defendant to federal district court if the district court has original jurisdiction over the action, that is, if the action could have been brought first in the district court. 28 U.S.C. § 1441 (a).
The party seeking removal has the burden of establishing federal jurisdiction. Westinghouse Elec. Corp. v. Newman Holtzinger, P.C., 992 F.2d 932, 934 (9th Cir. 1993). Courts strictly construe the removal statute against removal jurisdiction. Any doubt as to the right of removal is resolved in favor of remand. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 13 1992).
DISCUSSION
BOLI contends that this action should be remanded back to it to allow the question to be resolved in an administrative proceeding. BOLI relies on three points: (I) BOLI is not equivalent to a state court, as required by § 1441(a); (2) the district court does not have original junsdiction over the action; and (3) Younger abstention weighs against removal.
I. State Court
Several Courts of Appeals have relied on a functional test to determine if a state administrative agency was a "state court" in the removal context. See Volkswagen de Puerto Rico. Inc. v. Puerton Rico Labor Relations Board, 454 F.2d 38 (1st Cir. 1972) (unfair labor practice proceedings for breach of CBAs under § 301); Floeter v. C.W. Transport, Inc., 597 F.2d 1100 (7th Cir. 1979) (Wisconsin Employment Relations Commission adjudicating breach of a CBA and unfair representation, holding limited to the facts of the case); Sun Buick, Inc. v. SAAB Cars USA, Inc., 26 F.3d 1259 (3rd Cir. 1994) (although called the functional test into question, used it to determine that the Pennsylvania Board of Vehicles was not a court under any circumstances). Factors include whether judicial procedures are used for discovery, etc., the type of remedies the agency can provide, the state and federal interests in the subject matter, the agency's powers and duties, and the characteristics of the people making the decision. Id. at 1261-66.
Although BOLI also has rulemaking authority, this proceeding was of an adjudicative nature. Charges are put in writing and the employer files a written answer. Discovery is available and witnesses can be subpoenaed. The contested case hearing is on the record. Evidence is presented as in a trial in this court. Findings of facts and conclusions of law are issued and damages may be awarded. Orders awarding money damages can be filed with the county clerk's office. ORS 659.060, OAR 839-050-0200 and -0250, 839-003-0090. I conclude that BOLI's functionality is similar enough to a state court for BOLI to be considered a state court for purposes of removal under § 1441.
II. Original Jurisdiction
US West contends that § 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (a), completely preempts this action, providing original jurisdiction in federal court. US West contends that the CBA's provision concerning time off for union business must be interpreted to decide the case.
BOLI disagrees that the CBA is relevant to the claim and contends that the only factual issue is what motivated US West when it denied Richardson time off during June 1999 for union activities.
Under the "well-pleaded complaint rule," the federal question must appear on the face of the properly pleaded complaint for removal to be appropriate. Balcorta v. Twentieth Century-Fox Film Corp., 208 F.3d 1102, 1106 (9th Cir. 2000). Thus, a plaintiff can avoid federal jurisdiction by relying exclusively on state law. Removal cannot be premised on the basis of a federal defense, including a defense of preemption. Id. The preemptive force of some federal statutes is so strong, however, that they completely preempt an area of state law. Under a corollary to the well-pleaded complaint rule, any claim that relies on state law that is completely preempted by federal law is considered a federal claim. Thus, federal subject matter jurisdiction exists and removal is appropriate.Id. at 1107.
The complete preemption doctrine is usually applied to § 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (a). To foster § 301's policies of promoting arbitration and the uniform interpretation of collective bargaining agreements, § 301 complete preemption is construed to cover most state-law actions that require interpretation of labor agreements. The doctrine is not applied, however, if the court must only "look at," refer to, consult, or apply the agreement. Id. at 1107-08.
I agree with BOLI that US West's motivation for curtailing Richardson's union activity is the ultimate issue in this action, but the company's motivation is intertwined with Section 15.13 of the CBA and its provision for curtailing activity under some circumstances. In particular, I conclude that Section 15.13, and its clause "[u]nless prevented by service requirements," will require interpretation by the court. Consequently, § 301 completely preempts the claim and federal subject matter jurisdiction exists.
This conclusion, combined with the determination that BOLL functions as a state court for purposes of the removal statute, leads to the conclusion that this action was properly removed.
III. Younger Abstention
BOLL contends that the court should abstain under Younger to allow BOLL to vindicate a statutory right provided by state law.
Younger v. Harris, 401 U.S. 37 (1971), explained the strong federal policy against federal court interference with pending state judicial proceedings, absent extraordinary circumstances. Green v. City of Tucson, 217 F.3d 1081, 1083 (9th Cir. 2000). " Younger abstention is required if the state proceedings are (1) ongoing, (2) implicate important state interests, and (3) provide the plaintiff an adequate opportunity to litigate federal claims." Id.
Here, there is no state proceeding ongoing because of the removal. This situation is different than if the state proceedings were continuing and plaintiff came to this court to enjoin the state proceedings. See Mobil Oil Corp. v. City of Lone Beach, 772 F.2d 534, 542 (9th Cir. 1985). The doctrine does not apply here.
CONCLUSION
BOLI's motion to remand (#5) is denied.
IT IS SO ORDERED.