Carlson v. Arrowhead Concrete Works, Inc.

• Decision Date: 24 June 2005
• Docket Number: No. CIV.04-5027(RHK/RLE).,CIV.04-5027(RHK/RLE).
• Citation: 375 F.Supp.2d 835
• Parties: Duane CARLSON, Plaintiff, v. ARROWHEAD CONCRETE WORKS, INC., Defendant.
• Court: U.S. District Court — District of Minnesota

375 F.Supp.2d 835

Duane CARLSON, Plaintiff, v. ARROWHEAD CONCRETE WORKS, INC., Defendant.

No. CIV.04-5027(RHK/RLE).

United States District Court, D. Minnesota.

June 24, 2005.

James H. Kaster and Jessica J. Clay, Nichols, Kaster & Anderson, PLLP, Minneapolis, MN, for Plaintiff.

Lee A. Lastovich and Thomas R. Trachsel, Felhaber, Larson, Fenlon & Vogt, PA, Minneapolis, MN, for Defendant.

MEMORANDUM OPINION AND ORDER

KYLE, District Judge.

Introduction

This case arises out of an employee's allegation that he was laid off and not recalled to work because he complained to his employer that his job was unsafe. Plaintiff Duane Carlson has sued Defendant Arrowhead Concrete Works, Inc. ("Arrowhead") alleging violations of two Minnesota anti-retaliation laws. Before the Court is Arrowhead's Motion to Dismiss. For the reasons set forth below, the Court will deny Arrowhead's Motion and because subject matter jurisdiction is lacking, will remand the case to state court.

Background

In December 2002, Duane Carlson, a Minnesota resident, was hired by Arrowhead, a Minnesota corporation owned and operated by Gerry and James Carlson,¹ to operate a cement pump truck. In early 2003, Duane received safety training from Schwing America, the manufacturer of the pump trucks. In May 2003, Duane became concerned that two of the pump trucks used by Arrowhead were unsafe and believed that driving the trucks would violate the Occupational Safety and Health Act and other laws. He raised his concerns with Gerry and James and requested that the trucks be inspected and repaired. James stated that he would look into the issue, but nothing was done.

Throughout June and July of 2003, Duane asked Gerry and James to have the trucks inspected. On one occasion that summer, Duane took one of the trucks to a mechanic to repair a crack on the boom. The mechanic told Duane that numerous additional repairs were needed, but Gerry told Duane to bring the truck back without the additional repairs.

On August 26, 2003, Duane discovered structural cracks in the turret of one of the trucks and other cracks in the outrigger. He also saw the main boom fall back when it was raised and saw that the boom's pins were worn. These problems raised additional safety concerns. For example, the problems with the boom and turret might cause the pump truck's arm to fall and the cracks in the outrigger might cause the truck to tip over. Duane told Gerry and James that the truck put lives in danger and needed to be repaired. James replied, "you should keep your mouth shut and do what you are told." (Compl.¶ 17.)

On August 27, 2003, Duane spoke with Arrowhead's Safety Director and showed him the cracks in the pump truck's turret. The Safety Director agreed that there were safety issues and that the truck should not be driven.

On August 28, 2003, Duane gave Gerry and James a letter resigning from his pump truck position effective in two weeks, at which time he would exercise his seniority rights under his union's collective bargaining agreement and work in another position. However, Duane told Gerry that if the truck was inspected, he would continue to operate the truck. Gerry responded, "you don't get to dictate demands to me. I tell you what to do or you can get the hell out of here." (Compl.¶ 20.)

After two weeks expired, on September 10, 2003, Duane exercised his rights under the collective bargaining agreement and stepped down from his pump truck position to work on a mixer truck. That same day, James told Duane to start the pump truck for a job, but Duane refused because the truck was unsafe. James replied, "Listen you little cocksucker, get in that truck right fucking now and get it ready. I am sick of your whining." (Compl.¶ 22.) He further stated, "some fuckers are going down the road and getting laid off. You're going to be the first one you son of a bitch." (Id.) Duane reported the incident to his union, but the union did not allow him to file a grievance. (Id. ¶ 23.)

In the fall of 2003, Duane was allowed to take one of the pump trucks in for an inspection. The mechanic inspecting the pump truck found it unsafe. When Duane told Gerry how much the repairs would cost, Gerry told him to bring the truck back without the repairs. Duane refused.

On November 6, 2003, Duane was laid off, along with six other employees. On June 4, 2004, Duane was told that he was not going to be called back to work, even though employees with less seniority were called back to work at Arrowhead and at other companies owned by Gerry and James. (Compl. ¶¶ 29-30.)

As alluded to above, Duane belonged to a union and the union had a collective bargaining agreement (the "Agreement") with Arrowhead. (See Compl. ¶¶ 16, 18, 21, 23; Trachsel Aff. Ex. 1 (Agreement).) Article 3 of the Agreement provides that "[n]o driver shall be required to drive a truck that does not comply with all state and city safety regulations." (See Compl. ¶ 16; Trachsel Aff. Ex. 1.) Article 15 contains provisions governing seniority, layoffs, bumping, and recall rights. (See Compl. ¶ 30; Trachsel Aff. Ex. 1.) Appended to the Agreement is a "Memorandum of Understanding," which provides that Arrowhead employees will be granted "first consideration" for hiring opportunities at two other commonly owned companies. (See Trachsel Aff. Ex. 1.) Finally, Article 13 contains a mandatory grievance-arbitration procedure. (Id.)

In November 2004, Duane sued Arrowhead in Minnesota state court alleging two causes of action. First, he alleges that Arrowhead violated Minnesota's Whistleblower Act, Minn.Stat. § 181.932, by laying him off and not recalling him in retaliation for reporting suspected violations of the law, objecting to the violations, and refusing to operate the pump trucks. (See Compl. ¶¶ 34-40 (Count I).) Second, he alleges that Arrowhead violated Minnesota's Occupational Safety and Health Act, Minn.Stat. § 182.654, by discriminating against him because he complained about the violation of the law, caused the pump trucks to be inspected, and refused to drive the pump trucks. (See id. ¶¶ 41-47 (Count II).)

Arrowhead removed the case to this Court on the sole ground that Duane's claims are completely preempted by section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. (Notice of Removal ¶ 3.) Its Motion to Dismiss followed.

Standard of Review

Under Rule 12(b)(6), all factual allegations must be accepted as true and every reasonable inference must be made in favor of the complainant. Fed.R.Civ.P. 12(b)(6); see Midwestern Mach., Inc. v. Northwest Airlines, Inc., 167 F.3d 439, 441 (8th Cir.1999); Carney v. Houston, 33 F.3d 893, 894 (8th Cir.1994). "[D]ismissal under Rule 12(b)(6) serves to eliminate actions which are fatally flawed in their legal premises and [destined] to fail, thereby sparing litigants the burden of unnecessary pretrial and trial activity." Young v. City of St. Charles, Mo., 244 F.3d 623, 627 (8th Cir.2001) (citation omitted). A cause of action "should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief." Schaller Tel. Co. v. Golden Sky Sys., Inc., 298 F.3d 736, 740 (8th Cir.2002) (citations omitted). On a motion to dismiss, "[t]he court may consider, in addition to the pleadings, materials embraced by the pleadings and materials that are part of the public record." In re K-tel Int'l Sec. Litig., 300 F.3d 881, 889 (8th Cir.2002) (citations and internal quotations omitted).²

Analysis

The issue presented in this Motion is whether Duane's state law claims are completely preempted by section 301 of the Labor Management Relations Act ("LMRA"). Having removed the case on this basis, Arrowhead contends that Duane's claims are completely preempted by section 301 and, because Duane did not exhaust the Agreement's grievance-arbitration procedure as section 301 requires, the Complaint must be dismissed. (Mem. in Supp. at 2.) Duane responds that his state law claims are not completely preempted by section 301 and, because without complete preemption there is no subject matter jurisdiction, this case must be remanded to state court. (Mem. in Opp'n at 14-17.) As will be discussed below, because the Court determines that Duane's state law claims are not completely preempted by section 301, this case will be remanded to state court.³

A. Complete Preemption

The doctrine of preemption arises from the Supremacy Clause of the Constitution, which requires that state law must give way when it conflicts with or frustrates federal law. Chapman v. Lab One, 390 F.3d 620, 624 (8th Cir.2004). State law is preempted when Congress expressly prohibits state regulation, when Congress implicitly leaves no room for state involvement by pervasively occupying a field of regulation, and when state law directly conflicts with federal law. Id. Ordinarily, federal preemption is merely a defense to a plaintiff's state law claim, and it does not alter the jurisdiction of the federal court. Id. at 625.

The doctrine of "complete preemption," however, establishes more than a defense to a state law claim. Id. On limited occasions, the Supreme Court has concluded that "the pre-emptive force of a statute is so `extraordinary' that it `converts' an ordinary state ... law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule." Id. (quoting Caterpillar, Inc. v. Williams, 482 U.S. 386, 393, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987)). When an area of state law has been "completely preempted," then any claim "purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law." Id. (quoting Caterpillar, 482 U.S. at 393, 107 S.Ct. 2425). Accordingly, "complete preemption" of a state law cause of action provides a basis for removal of an action to federal court. Id.

B. Section 301 of the LMRA

The...