Barbour v. Int'l Union

• Decision Date: 27 January 2011
• Docket Number: No. 08–1740.,08–1740.
• Parties: Shirley M. BARBOUR; Harry M. Barker; Anthony Burton; William J. Cline; Barbara Faulkner; Raymond N. Fleck, Jr.; Arthur Hamilton, II; Daniel L. Hamm; Troy L. Harris; Gary Landau; Vincent Marra; Peggy A. Murphy; Richard Douglas Permenter; Patricia Pierson; Jeffrey N. Roberts; Annie Smith Rodgers; Reess H. Scott; Joyce See; Roney Smith; Fred M. Stewart; Daniel Lee Tichnell; Robert Thomas; Charles F. Wadkins, Plaintiffs–Appellants,v.INTERNATIONAL UNION, United Automobile, Aerospace and Agricultural Implement Workers of America; Local No. 1183 of International Union, United Automobile, Aerospace and Agricultural Implement Workers of America; Local No. 1212 of International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Defendants–Appellees.American Federation of Labor And Congress of Industrial Organizations, Amicus Supporting Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

640 F.3d 599

190 L.R.R.M. (BNA) 2093

Shirley M. BARBOUR; Harry M. Barker; Anthony Burton; William J. Cline; Barbara Faulkner; Raymond N. Fleck, Jr.; Arthur Hamilton, II; Daniel L. Hamm; Troy L. Harris; Gary Landau; Vincent Marra; Peggy A. Murphy; Richard Douglas Permenter; Patricia Pierson; Jeffrey N. Roberts; Annie Smith Rodgers; Reess H. Scott; Joyce See; Roney Smith; Fred M. Stewart; Daniel Lee Tichnell; Robert Thomas; Charles F. Wadkins, Plaintiffs–Appellants,

v.INTERNATIONAL UNION, United Automobile, Aerospace and Agricultural Implement Workers of America; Local No. 1183 of International Union, United Automobile, Aerospace and Agricultural Implement Workers of America; Local No. 1212 of International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Defendants–Appellees.American Federation of Labor And Congress of Industrial Organizations, Amicus Supporting Appellees.

No. 08–1740.

United States Court of Appeals, Fourth Circuit.

Argued: Sept. 23, 2010.Decided: Jan. 27, 2011.

ARGUED: Thomas C. Costello, Costello Law Group, Baltimore, Maryland, for Appellants. Ava Barbour, International Union, UAW, Detroit, Michigan, for Appellees. James B. Coppess, AFL–CIO, Washington, D.C., for Amicus Supporting Appellees. ON BRIEF: John H. West, III, West & Costello, LLC, Baltimore, Maryland, for Appellants. Wendy L. Kahn, Jeffrey W. Burritt, Zwerdling, Paul, Kahn & Wolly, PC, Washington, D.C., for Appellees. Lynn K. Rhinehart, Lorrie E. Bradley, AFL–CIO, Washington, D.C., for Amicus Supporting Appellees.Before TRAXLER, Chief Judge, WILKINSON, NIEMEYER, MOTZ, KING, GREGORY, SHEDD, DUNCAN, AGEE, KEENAN, and WYNN, Circuit Judges, and HAMILTON, Senior Circuit Judge.^*Vacated and remanded by published opinion. Senior Judge HAMILTON wrote the opinion, in which Judges MOTZ, KING, GREGORY, SHEDD, KEENAN, and WYNN joined. Judge AGEE wrote a separate opinion concurring in the judgment, in which Chief Judge TRAXLER and Judges WILKINSON, NIEMEYER, and DUNCAN joined.Chief Judge TRAXLER, Judge WILKINSON, Judge NIEMEYER, and Judge DUNCAN join in this opinion concurring in the judgment.

OPINION

HAMILTON, Senior Circuit Judge:

Twenty-three former employees (the Retirees) of Chrysler Corporation (Chrysler) brought this action against the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (the International), Local No. 1183 of the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (Local 1183), and Local No. 1212 of the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (Local 1212), in the Circuit Court for Cecil County, Maryland.¹ The UAW removed the action to the United States District Court for the District of Maryland, alleging that the claims asserted by the Retirees were completely preempted by federal labor law. After the UAW sought Rule 12(b)(6) dismissal on a variety of grounds, the Retirees moved to remand the case back to Maryland state court, alleging that the notice of removal was untimely filed, and, alternatively, that their claims were not completely pre-empted. The district court denied the motion to remand, holding that the notice of removal was timely filed. The district court also granted the motion to dismiss, holding that, although the Retirees' claims were completely preempted, the claims were barred by the six-month statute of limitation contained in § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b). The Retirees challenge these rulings on appeal. For the reasons stated below, we agree with the Retirees that the district court erred when it denied the motion to remand, because the UAW's notice of removal was untimely filed. Accordingly, we vacate the district court's judgment and remand the case to the district court with instructions to remand the case to Maryland state court. In light of our holding on the removal issue, we do not reach the Retirees' arguments concerning the district court's preemption and statute of limitation rulings.

I

Prior to their January 31, 2007 retirement from Chrysler, the Retirees were employed by Chrysler at its automobile assembly plant (the Plant) in Newark, Delaware. Each of the Retirees were members of the International, and were members of either Local 1183 or Local 1212.

By the end of 2006, each of the Retirees had the requisite years of service with Chrysler to qualify for retirement with full benefits. However, each of the Retirees faced a difficult retirement decision. Through a variety of sources, including, but not limited to, statements from representatives and officers of the International, Local 1183, and Local 1212, the Retirees became aware that Chrysler was planning to reduce the size of its work force and that the Plant was “a prime candidate for a work force reduction.” (J.A. 27). Based on their previous experience with work-force reductions, the Retirees believed that it was in their best interests to continue to work and forego retirement in order to determine whether the work-force reduction would include financial incentives to retirement-eligible employees.

Desiring to reap the benefit of any financial incentives to retirement-eligible employees, the Retirees sought the advice and counsel of the UAW to determine the “best course of action to preserve their eligibility to receive the financial benefits of a retirement package.” (J.A. 28). According to the Retirees, the UAW advised them to delay their retirement until January 31, 2007, because, “by retiring in the calendar year 2007, any retirement package offered in 2007 would include the [Retirees] and any other UAW member who retired during the year 2007.” (J.A. 28). Based on this advice, the Retirees submitted the required paperwork to effectuate a retirement date of January 31, 2007.

Between the time they submitted their retirement paper-work and January 31, 2007, many of the Retirees received information that the offer of a retirement package to retirement-eligible employees was “imminent.” (J.A. 28). Consequently, some of the Retirees considered withdrawing their retirement paperwork and continuing to work until a firm announcement concerning financial incentives to retirement-eligible employees was made. In response, UAW representatives and officers informed the Retirees that it was unnecessary to withdraw their paperwork, because no retirement package was “ ‘coming down’ ” and that any retirement package offered in 2007 would be retroactive to January 31, 2007 and include all who retired on or after that date in 2007. (J.A. 29). Relying on these representations, each of the Retirees retired on January 31, 2007.

Two weeks later, Chrysler announced that it would be offering retirement incentive packages, with the agreement and approval of the UAW, for eligible employees at the Plant. The retirement package offered had a value of approximately $70,000 for each retiring employee. However, the terms of the retirement package approved and agreed to by the UAW excluded the Retirees, because the retirement package applied prospectively, not retroactively.

On February 11, 2008, the Retirees filed a two-count complaint in the Circuit Court for Cecil County, Maryland. Count One asserted a claim under Maryland state law for negligent misrepresentation. The Retirees alleged that the UAW “owed [them] both legal and fiduciary duties ... to disclose all material facts with regard to the status of the UAW's negotiations with Chrysler to the extent those negotiations impacted [the Retirees'] decision to retire.” (J.A. 52–53). Count One also alleged that the UAW “had a duty to refrain from misrepresenting and omitting material facts regarding” such negotiations. (J.A. 53). The Retirees alleged that the UAW “made at least one or more of the following material misrepresentations of fact”: (1) “No retirement package was ‘coming down’ or being currently negotiated by the UAW with Chrysler”; and (2) “Any retirement package negotiated between the UAW and Chrysler in 2007 would be retroactive and would apply to any employee who retired on or after January 31, 2007.” (J.A. 53).

Count Two asserted a negligence claim under Maryland state law. This count alleged that the UAW breached “duties of care, fidelity and loyalty to ensure that all material facts regarding their relationship were fully disclosed and all actions taken on behalf of [the Retirees] were for their protection and in their best interests.” (J.A. 55). The UAW allegedly breached such duties by failing to: (1) “advise [the Retirees] of the true nature and extent of their negotiations with Chrysler”; (2) keep the officers and representatives of Locals 1183 and Local 1212 apprised of the true nature and extent of the International's negotiations with Chrysler; and (3) “warn [the Retirees] that voluntary retirement of their employment before the official announcement of a retirement package would preclude them from being eligible for the receipt of future retirement packages offered during the 2007 calendar year.” (J.A. 55–56).

The International was served with a copy of the complaint on March 20, 2008. Local 1183 was served with process on March 29, 2008. On April 28, 2008, more than thirty days after service on the International, but within thirty days of service on Local 1183, but before Local 1212 was served, all three defendants filed a joint notice of removal in the United States District Court for the District of Maryland.

According to the notice of removal, “[a]lthough [the Retirees] characterize their claims as state law claims, the duty of care that [the Retirees] maintain [ ] it is owed from [the UAW] ... is the duty of fair representation, ... which arises from UAW's status from its exclusive bargaining authority pursuant to section 9(a) of the National Labor Relations Act, 29 U.S.C. § 159.” (J.A. 13). The notice further averred that, “[b]ecause the NLRA is...