Galvez v. Kuhn, 89-16562
| Decision Date | 21 May 1991 |
| Docket Number | No. 89-16562,89-16562 |
| Citation | 933 F.2d 773 |
| Parties | 137 L.R.R.M. (BNA) 2521, 59 USLW 2736, 119 Lab.Cas. P 10,834 Cesar GALVEZ, Plaintiff-Appellant, v. Carl KUHN, Anchor Glass, Inc., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Georgia Ann Michell, Ganong & Michell, Walnut Creek, Cal., and Alan R. Bergman, Appellate Law Offices of Alan R. Bergman, Walnut Creek, Cal., for plaintiff-appellant.
Rebecca A. Hull and James S. Brown, Sedgwick, Detert, Moran & Arnold, San Francisco, Cal., for defendants-appellees.
Appeal from the United States District Court for the Northern District of California.
Before D.W. NELSON, KOZINSKI and NELSON, Circuit Judges.
With this case, we revisit the field of labor law by asking a familiar question: Are an employee's claims, in this instance alleging assault and battery and intentional infliction of emotional distress, preempted by Section 301 of the Labor Management Relations Act (LMRA)? Familiarity, however, has not bred facility. There is no sure route through the thicket and, as we face this problem anew, we once again must hack our way through the tangled and confusing interplay between federal and state law.
At the time of the alleged incident, appellant Cesar Galvez, a native of Peru, was employed by Anchor Glass Container Corporation (Anchor), a bottle manufacturing facility in Antioch, California. A member of the union, his terms and conditions of employment were governed by a collective bargaining agreement (CBA). At all relevant times, appellee Carl Cook 1 was the foreman on Galvez' shift and in that capacity supervised his work.
According to Galvez' complaint and deposition, for a period of five months prior to the date of the central incident Cook had persistently harassed him in various ways.
Things came to a head on the evening of October 28, 1987. Earlier that day, Cook had purportedly shouted a racial slur at appellant. Galvez' job that evening was to remove boxes from a conveyor belt and then stack them on pallets. According to Galvez, Cook sped up the line by manually disengaging the limit switch which served to shut off the belt when a carton of bottles reaches the stacking area. With the limit switch disengaged, the conveyor belt ran uninterrupted and cartons piled up.
Galvez claims that in so doing, Cook "intentionally, maliciously, and willfully, in acts of unprovoked physical aggression, assaulted and battered plaintiff by increasing the speed on the line in the stacking area and then exhorting plaintiff to keep up with the line." 2 This lasted approximately 45 minutes to an hour. As a result, appellant claims to have suffered severe physical injuries. 3 Finally, Galvez claims that he encountered an inspector after he had returned to the plant from the hospital on the night of October 28-29. The inspector allegedly made racially derogatory remarks and threatened Galvez.
Appellant filed a complaint in California state court, charging assault and battery and alleging that Cook's actions, including his racial slurs, amounted to intentional infliction of emotional distress. Thereafter, appellees Cook and Anchor removed the action to federal court, claiming that it was governed by section 301 of the LMRA. They then filed a motion for summary judgment on the grounds that the state-law claims were preempted by Sec. 301 and that plaintiff had failed both to exhaust his CBA remedies and to bring his suit within the required six-month limitations period. In the alternative, appellees argued that Galvez' state-law claims were preempted by California's Workers' Compensation Act.
The district court granted summary judgment for the defendants. It concluded that the claims were preempted by Sec. 301, that Galvez had not exhausted appropriate grievance procedures, and that his claim, once converted into a section 301 cause of action, was time-barred. In the alternative, it ruled that Galvez' claims lacked merit and that they were subject to the exclusive remedy provisions of California's Workers' Compensation Act. Galvez filed this timely appeal.
Where, as here, removal jurisdiction is predicated on the existence of a federal question, 5 the federal question generally must appear on the face of the plaintiff's complaint. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987). Accordingly, a party's interjection of a federal defense ordinarily will not suffice to remove a case. Id. at 393, 107 S.Ct. at 2430. Nevertheless, the "complete preemption doctrine" carves an exception to this rule. "Once an area of state law has been completely preempted, any claim purportedly based on that preempted state law is considered, from its Jurisdictional and preemption questions are thus tightly intertwined; "the issues of federal preemption and removability largely merge." Smolarek v. Chrysler Corp., 879 F.2d 1326, 1329 (6th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 539, 107 L.Ed.2d 537 (1989). The district court, apparently overlooking this point, concluded that Galvez' action was preempted or, in the alternative, that his state law claims should be dismissed on other grounds. In the instant case, however, without preemption, there is no jurisdiction; without jurisdiction, there are no alternative grounds of decision to consider.
inception, a federal claim, and therefore arises under federal law." Id. In those instances, a claim that seemingly rests solely on state law may nonetheless be removable. Controversies involving collective-bargaining agreements constitute one such area. See Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988); Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985)
In short, it is critical to distinguish the merits of the case from its jurisdictional basis--the question whether Galvez has presented genuine issues of material fact from the question whether what he has presented falls under the scope of the LMRA. That his suit might not survive a motion for summary judgment in state court is irrelevant to whether it has its place in a federal forum to begin with.
Preemption is a question of law reviewed de novo. Harris v. Alumax Mill Products, Inc., 897 F.2d 400, 402 (9th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 102, 112 L.Ed.2d 73 (1990); Vincent v. Trend Western Technical Corp., 828 F.2d 563, 565 (9th Cir.1987).
Section 301(a) of the LMRA, 29 U.S.C. Sec. 185(a), provides:
Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.
At first blush, both the rationale and method of analysis in preemption cases are straightforward: Sec. 301 was intended "to ensure uniform interpretation of collective-bargaining agreements." Lingle, 486 U.S. at 404, 108 S.Ct. at 1880. Therefore, preemption will be found only if the application of state law "requires the interpretation of a collective-bargaining agreement." Id. at 413, 108 S.Ct. at 1885; see also Ackerman v. Western Electric Co., Inc., 860 F.2d 1514, 1517 (9th Cir.1988) (). The question, in sum, is whether "the state law factual inquiry ... turn[s] on the meaning of any provision of the collective-bargaining agreement." Ackerman, 860 F.2d at 1517. Nor are we deprived of authoritative statements to guide our way: Lingle is one, Allis-Chalmers another.
In reality, section 301 has been the precipitate of a series of often contradictory decisions, so much so that "federal preemption of state labor law has been one of the most confused areas of federal court litigation." Note, The Need for a New Approach to Federal Preemption of Union Members' State Law Claims, 99 Yale L.J. 209, 209 (1989) (hereinafter Note ). This case is no disproof.
We begin with the easier of the two claims, that alleging assault and battery. Appellees insist that the dispute necessarily requires interpretation of the collective bargaining agreement. In essence, they argue that appellant's complaint is nothing more than a safety and employment condition grievance masquerading as an assault Camouflaged or not, Galvez' claim must be taken at face value at this early stage of the litigation. Under California law, an assault is "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another;" a battery is "any willful and unlawful use of force or violence upon the person of another." Cal.Pen.Code Secs. 240, 242. The prohibition against such acts exists independent of any contract, as does the state law standard defining their commission. Because "Sec. 301 does not grant the parties to a collective-bargaining agreement the ability to contract for what is illegal under state law," Allis-Chalmers, 471 U.S. at 212, 105 S.Ct. at 1912, Galvez' claim cannot require interpretation of the agreement's negotiated provisions.
and battery claim. Where, when and how Galvez must work are matters for labor arbitration, covered by the CBA, and intended to be governed by its terms. 6 Moreover, if Galvez believes that Cook's actions were motivated by a desire to fire him, appellees contend that resolution of the claim also hinges on an interpretation of CBA sections regulating the release and discharge of employees. Agreeing, the district court similarly found plaintiff's
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