Paige v. Henry J. Kaiser Co., s. 84-2246

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation826 F.2d 857
Docket NumberNos. 84-2246,84-7866,s. 84-2246
Parties126 L.R.R.M. (BNA) 2145, 56 USLW 2156, 107 Lab.Cas. P 10,194, 2 Indiv.Empl.Rts.Cas. 705, 13 O.S.H. Cas.(BNA) 1467, 1988 O.S.H.D. (CCH) P 28,176 Donald PAIGE and Andrew Harris, Plaintiffs-Appellants, v. HENRY J. KAISER COMPANY, Standard Oil Company of California, Chevron Chemical Company, Eugene Green, and Does 1-20 inclusive, Defendants-Appellees. HENRY J. KAISER COMPANY, Standard Oil Company of California, Chevron Chemical Company, Petitioners, v. UNITED STATES DISTRICT COURT FOR the NORTHERN DISTRICT OF CALIFORNIA, Respondent, and Donald Paige and Andrew Harris, Real Parties in Interest.
Decision Date27 August 1987

Henry S. Hewitt and Alice M. Beasley, San Francisco, Cal., for plaintiffs-appellants and respondent.

Gilmore F. Diekmann, Jr. and Debra F. Pell, San Francisco, Cal., for defendants-appellees.

Edwin L. Currey, Jr., San Francisco, Cal., for petitioners.

Appeal from the United States District Court for the Northern District of California.

Before CHOY, HUG and SCHROEDER, Circuit Judges.

HUG, Circuit Judge:

Appellants brought this action in a California state court alleging that they had been required by their employer to fill generators with gasoline under unsafe conditions despite their protests, and that when they refused to do so, they were fired. The complaint alleged seven causes of action. The case was removed to federal court on the ground that the claims asserted were artfully pleaded federal claims.


Two claims for wrongful discharge based on state law were held to be completely preempted by section 301 of the Labor Management Relations Act ("LMRA") and thus were held to have been properly removed and barred by the statute of limitations. The principal issue on appeal is whether the determination of complete preemption of either or both of the wrongful discharge claims was proper.

Paige and Harris's complaint also contained five other claims. The district court remanded these claims to state court after dismissing the wrongful discharge claims. The appellees brought a petition for a writ of mandamus or prohibition to require the district court to retain jurisdiction of these remaining causes of action. This petition has been consolidated with the appeal of the judgment.

The first issue on this consolidated appeal is whether either or both of the state wrongful discharge claims were completely preempted and barred by the statute of limitations. The second issue concerns the question raised in the petition for mandamus, which is whether the district court properly remanded the state causes of action to the state court.


The facts as alleged by appellants Donald Paige and Andrew Harris are as follows: They worked for defendant Henry J. Kaiser Company ("Kaiser") on construction of a coal liquefaction plant for defendant Chevron Chemical Company. Appellants were employed by Kaiser as welding machine tenders pursuant to a collective bargaining agreement between Kaiser and Operating Engineers Local 3.

Appellants' duties included filling generator gas tanks. Appellants spent two to three hours each day fueling the 12 gasoline generators on the construction site. Several circumstances caused plaintiffs to believe that this work was unnecessarily and illegally hazardous: the filling was done before the engines had cooled; funnels were broken, causing leakage during pouring; the containers for carrying the fuel to the generators were in poor condition causing spillage; and much of the refueling was required to be done beneath falling sparks given off by welders.

Appellants spoke with responsible parties over an 11-day period in an attempt to correct this situation; however, no changes were ever made. On July 26, 1982, in response to the company's inaction, appellants refused to refuel a generator when so requested. Appellants were then fired by Kaiser superintendent Gene Green. The next day, Gene Green and representatives of Local 3 met and discussed the firings. After the meeting, the Local 3 representatives told appellants there was nothing that could be done. Appellants then filed their state court action.

Appellants' state court complaint contained seven tort causes of action under California law: (1) the appellants were wrongfully discharged in violation of the sections of the California Labor Code that provide for the regulation of occupational safety and health 1; (2) the appellants were wrongfully discharged in violation of an implied covenant of good faith and fair dealing; (3) intentional infliction of emotional distress; (4) negligent infliction of emotional distress; (5) assault; (6) Chevron and Standard, who employed Kaiser as an independent contractor and knew or should have recognized the peculiar risk of harm, willfully, maliciously, and oppressively refused to take precautions resulting in economic damage and justifying punitive damages; and (7) appellees willfully, maliciously, and oppressively required appellants to perform ultrahazardous tasks to their economic damage and justifying punitive damages.

The appellees removed the action on the ground that the wrongful discharge claims were, in actuality, claims under section 301 of the LMRA, 29 U.S.C. Sec. 185(a) (1982), which had been artfully pled as state law claims. The appellees then filed a motion for summary judgment on the ground that the section 301 claims were barred by the statute of limitations.

In response to the appellants' motion to remand and Kaiser's motion for summary judgment, the district court found, after applying the artful pleading doctrine, that the two wrongful discharge claims were, in fact, claims under section 301 of the LMRA, and were therefore subject to removal. Having assumed jurisdiction, the court dismissed the two section 301 claims because they were barred by the applicable statute of limitations. 2 After dismissing the recharacterized state claims, the district court declined to exercise pendent jurisdiction over the remaining state law claims and remanded them to the state court.


The Supreme Court succinctly outlined the requirements for removal jurisdiction based on preemption in the recent case of Caterpillar, Inc. v. Williams, --- U.S. ----, 107 S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987):

Only state court actions that originally could have been filed in federal court may be removed to federal court by the defendant. Absent diversity of citizenship, federal question jurisdiction is required. The presence or absence of federal-question jurisdiction is governed by the "well-pleaded complaint rule," which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint. See Gully v. First National Bank, 299 U.S. 109, 112-113, 57 S.Ct. 96, 97-98, 81 L.Ed. 70 (1936). The rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law.

(Footnotes omitted.) Under Gully, federal jurisdiction can be sustained only if a right created by federal law is an essential element of the claim. 299 U.S. at 112, 57 S.Ct. at 97. Under this well-pleaded complaint rule, however, the federal question must appear from the complaint itself and not from any defense that might be raised. Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 10, 103 S.Ct. 2841, 2846, 77 L.Ed.2d 420 (1983). Although the plaintiff is master of his own pleadings, he may not avoid federal jurisdiction by omitting from the complaint allegations of federal law that are essential to the establishment of his claim. A complaint that does so has been characterized as an "artfully-pleaded" complaint, as opposed to a "well-pleaded complaint" that does specifically refer to the essential federal law. The courts recharacterize the "artfully-pleaded" complaint as though it had been "well-pleaded." Olguin v. Inspiration Consol. Copper Co., 740 F.2d 1468, 1471-72 (9th Cir.1984); Garibaldi v. Lucky Food Stores, Inc., 726 F.2d 1367, 1370 (9th Cir.1984), cert. denied, 471 U.S. 1099, 105 S.Ct. 2319, 85 L.Ed.2d 839 (1985).

In this case, the district court held that federal jurisdiction existed because the two wrongful discharge actions, although artfully pleaded as state torts, were, in fact, claims for breach of the collective bargaining agreement between Kaiser and Local 3, and thus were preempted by section 301 of the LMRA. 3 In determining whether the federal law preempts the state law, the essential inquiry is the intent of Congress in enacting the federal statute. Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 738, 105 S.Ct. 2380, 2388, 85 L.Ed.2d 728 (1985). Preemption may be either express or implied, and "is compelled whether Congress' command is explicitly stated in the statute's language or implicitly contained in its structure and purpose." Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977). In enacting section 301 of the LMRA, Congress did not state explicitly whether and to what extent it intended to preempt state law. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208, 105 S.Ct. 1904, 1910, 85 L.Ed. 206 (1985). Without express preemption, a state law will not be displaced unless it conflicts with federal law or would frustrate the federal scheme, or unless it is apparent from the totality of the circumstances that Congress sought to occupy the field to the exclusion of the states. Id. at 209, 105 S.Ct. at 1910.

The preemptive force of section 301 is so powerful as to displace entirely any state cause of action for violation of a collective bargaining agreement. Franchise Tax Bd., 463 U.S. at 23, 103 S.Ct. at 2853. In such a case, the action may be removed to federal court even if an otherwise adequate state cause of action may exist. Id. at 23-24, 103 S.Ct. at 2853-54. The Supreme Court...

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