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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF WASHINGTON
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`DOUG WEISS, et al.,
`Plaintiff,
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` No. CV-05-3007-FVS
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`v.
`
` ORDER
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`SNOKIST GROWERS,
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`Defendant.
`
`THIS MATTER comes before the Court based upon the plaintiffs’
`motion to remand. They are represented by Jeffrey Needle; the
`defendant by Jeanie R. Tolcacher, Frank D. Davis, and Bryant S.
`McFall.
`BACKGROUND
`Doug Weiss, Lee Dohrman and Scott Nedrow were employed at Snokist
`Growers’s cannery in Yakima, Washington, and held positions as Head of
`the Cookroom (Weiss), Lead Processing Mechanic (Dohrman), and Lead
`Electrician (Nedrow). On or about September 24, 2004, employees of
`the defendant, who were members of the Western Council of Industrial
`Workers, went on strike. None of the plaintiffs were members of the
`union. During the week of September 24-30, the plaintiffs did not
`report for work. Reasons for not working during that week included:
`not being scheduled, having pre-approved time off, and calling in
`unable to work. All plaintiffs were terminated for excessive
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`ORDER - 1
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`Case 2:05-cv-03007-FVS Document 17 Filed 06/30/05
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`absenteeism on September 30, 2004. Plaintiffs filed a complaint in
`Washington State Superior Court for Yakima County on November 23,
`2004, alleging (1) violation of promises of specific treatment laid
`out in the defendant’s Personnel Policy Manual, (2) wrongful discharge
`in violation of public policy, and (3) violation of Section 49.32.020
`of the Revised Code of Washington. The summons and complaint were
`served on the defendant on December 7, 2004, and the defendant timely
`removed the case to federal court on January 5, 2005. In its Notice
`of Removal, Ct. Rec. 1, the defendant stated that removal is proper
`because plaintiffs’ claim for relief under RCW 49.32.020 is preempted
`by 29 U.S.C. § 164(a) and because this Court has original jurisdiction
`of this matter under the National Labor Relations Act (hereinafter
`NLRA), 29 U.S.C. § 141 et seq. Plaintiff responded to the Notice of
`Removal by filing a Motion to Remand to Washington State Superior
`Court. (Ct. Rec. 8.) This Court previously issued an Order (Ct. Rec.
`14) allowing for additional briefing on the issue of complete
`preemption.
`RULING:
`Removal:
`Snokist filed its Notice of Removal pursuant to 28 U.S.C. §§
`1331, 1332, and 1441(a)-(c). In order for removal to be proper under
`Section 1441, the complaint must contain a cause of action over which
`the district court has original jurisdiction. 29 U.S.C. § 1441(a);
`Ethridge v. Harbor House Restaurant, 861 F.2d 1389, 1393 (9th Cir.
`1988) (citing Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.
`Ct. 2425, 2429, 96 L. Ed. 2d 318 (1987). Federal courts have original
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`ORDER - 2
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`Case 2:05-cv-03007-FVS Document 17 Filed 06/30/05
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`jurisdiction over cases “arising under the Constitution, laws, or
`treaties of the United States.” 28 U.S.C. § 1331. Determination of
`whether or not a claim arises under federal law is made after
`examining the plaintiff’s complaint. Caterpillar, 482 U.S. at 392,
`107 S. Ct. at 2429. Under the “well-pleaded complaint rule,” “federal
`jurisdiction exists only when a federal question is presented on the
`face of the plaintiff’s properly pleaded complaint.” Id.; see also
`Ansley v. Ameriquest Mortgage Co., 340 F.3d 858, 861 (9th Cir. 2003).
`Here, Snokist contends that the plaintiffs’ claims arise under federal
`law, specifically the National Labor Relations Act, and thus fall
`within this Court’s federal question jurisdiction pursuant to 28
`U.S.C. § 1331. Snokist has not argued, and it does not appear, that a
`federal question appears on the plaintiffs’ complaint. Instead,
`Snokist argues that federal jurisdiction is proper because the
`plaintiffs’ claim under RCW 49.32.020 is completely preempted by the
`NLRA and provisions contained therein.
`Complete Preemption:
`The doctrine of complete preemption is one of two exceptions to
`the “well-pleaded complaint rule.” Id.; see also Beneficial Nat’l
`Bank v. Anderson, 539 U.S. 1, 8, 123 S. Ct. 2058, 2063, 156 L. Ed. 2d
`1 (2003) (“Beneficial”) (stating that a claim can be removed to
`federal court, though a federal cause of action does not appear on the
`plaintiff’s complaint, when (1) Congress has expressly provided or (2)
`“a federal statute wholly displaces the state-law cause of action
`through complete preemption”). The Supreme Court has found complete
`preemption in only three instances: “(1) § 301 of the Labor
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`ORDER - 3
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`Case 2:05-cv-03007-FVS Document 17 Filed 06/30/05
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`Management Relations Act, 29 U.S.C. § 185; (2) § 502 of the Employee
`Retirement Income Security Act, 29 U.S.C. § 1132; and (3) the usury
`provisions of the National Bank Act, 12 U.S.C. §§ 85 and 86.” Ansley,
`340 F.3d at 862 (citing Beneficial, 539 U.S. at 6-7, 11, 123 S. Ct. at
`2062, 2064). In cases where the Supreme Court has previously found
`complete preemption, “the federal statutes at issue provided the
`exclusive cause of action for the claim asserted and also set forth
`procedures and remedies governing that cause of action.” Beneficial,
`539 U.S. at 8, 123 S. Ct. at 2063. The fact that a defendant may be
`able to raise a defense of preemption to a plaintiff’s claims does not
`provide a proper basis for removal. Caterpillar, 482 U.S. at 393, 107
`S. Ct. at 2430. Only if Congress intended the statute in question to
`provide the exclusive cause of action would it be comparable to those
`statutes that have previously been construed by the Supreme Court as
`providing a basis for removal because of complete preemption.
`Beneficial, 539 U.S. at 9, 123 S. Ct. at 2064. In other words, in
`order for a plaintiff’s state-law cause of action to be completely
`preempted by federal law, the federal law must preempt any claim based
`on state law and provide the exclusive cause of action. In the time
`since Beneficial, a number of circuits have analyzed cases and
`particular statutes in order to determine if there is complete
`preemption. Compare Ansley, 340 F.3d at 864 (holding that the
`district court did not err in remanding the case to state court
`because “[n]othing in the Parity Act establishes the preemptive force
`of the Act is so extraordinary that Congress clearly manifested an
`intent to convert state law claims into federal question claims);
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`ORDER - 4
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`Case 2:05-cv-03007-FVS Document 17 Filed 06/30/05
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`Lippitt v. Raymond James Fin. Services, 340 F.3d 1033, 1042 (9th Cir.
`2003) (concluding that “the Exchange Act does not create exclusive
`jurisdiction for any and all actions that happen to target false
`advertising and deceptive sales practices in the sale of callable
`CDs”); Opera Plaza Residential Parcel Homeowners Ass’n v. Hoang, 376
`F.3d 831, 839 (9th Cir. 2004) (finding “no support for the argument
`that Congress intended to create federal jurisdiction over a suit by a
`homeowners association to enforce covenants and restrictions in cases
`involving television antennas”); with Briarpatch Ltd. L.P. v. Phoenix
`Pictures, Inc., 373 F.3d 296, 305 (2d Cir. 2004) (holding that the
`Copyright Act completely preempts state law claims because it “lays
`out the elements, statute of limitations, and remedies for copyright
`infringement”), cert. denied, 125 S. Ct. 1704 (2005); Hoskins v.
`Bekins Van Lines, 343 F.3d 769, 778 (5th Cir. 2003) (holding that
`“Congress intended for the Carmack Act to provide the exclusive cause
`of action for loss or damages to goods arising from the interstate
`transportation of those goods by a common carrier”) (emphasis in
`original). In view of the preceding authorities, the critical inquiry
`in the case at bar is whether Congress intended the NLRA to provide
`the exclusive cause of action for a wrongful termination claim brought
`by a supervisor who was terminated for allegedly refusing to report to
`work when union employees were on strike. Beneficial, 539 U.S. at 9,
`123 S. Ct. at 2063. If Congress did, then the cause of action arises
`under federal law and there is a basis for removal. Id. If Congress
`did not, then there is no basis for removal because the complaint does
`not arise under federal law, although the defendant could raise a
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`ORDER - 5
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`Case 2:05-cv-03007-FVS Document 17 Filed 06/30/05
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`federal defense in state court. Id.
`In determining whether or not complete preemption is applicable
`in this case, it is first necessary to determine if there is a federal
`law that preempts any of the plaintiffs’ state law claims. The
`defendant has argued that removal is proper because it was not
`required to treat the plaintiffs the same as other employees under 29
`U.S.C. § 164(a). That section states, in relevant part, that “no
`employer subject to this subchapter shall be compelled to deem
`individuals defined herein as supervisors as employees for the
`purposes of any law, either national or local, relating to collective
`bargaining.” 29 U.S.C. § 164(a). Defendant has argued that this
`section preempts any state law claim that plaintiffs wish to bring
`pursuant to RCW 49.32.020, because the plaintiffs were supervisors at
`defendant’s cannery.1
`Defendant is correct in asserting that 29 U.S.C. § 164(a) may
`preempt any state-law cause of action which would lump supervisory
`employees into the same category as other employees for purposes of
`collective bargaining. Beasley v. Food Fair of North Carolina, Inc.,
`416 U.S. 653, 662, 94 S. Ct. 2023, 2028, 40 L. Ed. 2d 443 (1974).
`Employers cannot be compelled to treat supervisors as employees for
`purposes of collective bargaining, because to do so would put
`supervisory employees in the position of trying to be loyal to both
`
`1This Court will not make a determination as to whether
`plaintiffs were in fact supervisors at defendant’s company. That
`is a determination properly made by the National Labor Relations
`Board. Local 207, Int’l Ass’n of Bridge, Structural and
`Ornamental Iron Workers Union v. Perko, 373 U.S. 701, 706, 83 S.
`Ct. 1429, 1432, 10 L. Ed. 2d 646 (1963).
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`ORDER - 6
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`Case 2:05-cv-03007-FVS Document 17 Filed 06/30/05
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`the employer and the union. Id. RCW 49.32.020 would appear to fall
`within that category of state laws contemplated in 29 U.S.C. § 164(a).
`That state statute sets forth a policy whereby an unorganized worker
`has the freedom to freely associate and choose his or her
`representative for purposes of collective bargaining. RCW 49.32.020.
`The statute does not distinguish between supervisory employees or
`regular employees and appears to afford the same freedom of
`association/representation to all. Id. Given the lack of a
`distinction between types of employees, this statute is of the type
`contemplated in 29 U.S.C. § 164(a) and may, therefore, be preempted by
`federal law. Cf. St. Thomas-St. John Hotel & Tourism Ass’n, Inc. v.
`Government of U.S. Virgin Islands ex rel. Virgin Islands Dep’t of
`Labor, 357 F.3d 297, 304 (3d Cir. 2004) (holding that the Virgin
`Islands Wrongful Discharge Act conflicts with the 29 U.S.C. § 164(a)
`“because it indirectly compels an employer to bargain collectively
`with supervisors by requiring that an employer who wishes to alter the
`WDA’s grounds for terminating a supervisor enter into a collective
`bargaining agreement”).
`The fact that the plaintiffs’ claims may be preempted by 29
`U.S.C. § 164(a) does not, on its own, provide a proper basis for
`removal. Beneficial, 539 U.S. at 9, 123 S. Ct. at 2063-64 (stating
`that a statute that preempts any state common law or statutory rule
`provides the basis for a federal defense) (citing Caterpillar, 482
`U.S. at 386, 107 S. Ct. at 2425). In order for complete preemption to
`be present in this case, the NLRA must provide the exclusive cause of
`action for the plaintiffs’ claim. That is just not so in this case.
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`ORDER - 7
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`Case 2:05-cv-03007-FVS Document 17 Filed 06/30/05
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`While the NLRA does state that employers do not have to treat
`supervisors the same as employees for purposes of collective
`bargaining, it does not set forth procedures and remedies that might
`be available to a supervisory employee who wishes to file a claim for
`wrongful termination. Beneficial, 539 U.S. at 8 (stating that
`complete preemption has only been found when a federal statute
`provides the exclusive cause of action and sets forth procedures and
`remedies governing that cause of action). See also Briarpatch, 373
`F.3d at 305 (concluding that the effect of Beneficial was to “extend
`the complete preemption doctrine to any federal statute that both
`preempts state law and substitutes a federal remedy for that law” and
`that the Copyright Act met the new criteria for complete preemption);
`Hoskins, 343 F.3d at 776-778 (holding that the doctrine of complete
`preemption applies to the Carmack Amendment, because that Amendment
`was enacted in order to bring uniformity of regulation to the area of
`interstate commerce over which it controls and the Amendment is the
`exclusive means by which a cause of action may be brought).
`In pleadings submitted to this Court, the defendant has argued
`that the NLRA provides a remedy for the alleged wrongs committed
`against the plaintiffs. The defendant cited a number of National
`Labor Relations Board decisions in which an employer was ordered to
`reinstate a discharged supervisor and/or provide back pay. See
`Dutchess Res. Mgmt., Inc., 327 NLRB 508 (1999); Advertiser’s Mfg. Co.,
`280 NLRB 1185 (1986); H.H. Robertson Co., 263 NLRB 1344 (1982);
`Parker-Robb Chevrolet. Inc., 262 NLRB 402 (1982). Defendant’s
`reliance upon the preceding cases is misplaced. As the cited cases
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`ORDER - 8
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`Case 2:05-cv-03007-FVS Document 17 Filed 06/30/05
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`make clear, the reason that a supervisor may be reinstated and/or
`awarded back pay is not the result of an unfair labor practice
`committed against that particular supervisor, but rather because of an
`unfair labor practice committed against a protected employee.
`Dutchess, 327 NLRB at 513 (holding that reinstatement of a supervisor
`was proper based upon a finding that an employer “engaged in an unfair
`labor practice within the meaning of Section 8(a)(1) of the Act by
`discharging its supervisor for refusing to modify the substance of his
`version of incidents”); Parker-Robb, 262 NLRB at 404 (holding that
`“the discharge of supervisors is unlawful when it interferes with the
`right of employees to exercise their rights under Section 7 of the
`Act, as when they give testimony adverse to their employers’ interest
`or when they refuse to commit unfair labor practices”). A potential
`remedy for a supervisor, therefore, is predicated on a finding that an
`employee’s rights under the NLRA have been violated. The NLRA does
`not provide an independent and exclusive cause of action for a
`supervisor who has been terminated. 29 U.S.C. § 152(3) (stating that
`“[t]he term ‘employee’ shall include any employee, and shall not be
`limited to the employees of a particular employer. . ., but shall not
`include . . . any individual employed as a supervisor”). Section 160
`of the NLRA sets forth the procedures that must be followed in
`bringing a complaint for an unfair labor practice. 29 U.S.C. § 160.
`Even if this Court were to adopt the defendant’s designation of the
`plaintiffs as supervisors, which this Court is not now willing to do,
`section 160 would not set forth the exclusive procedures for the
`plaintiffs’ claims, because section 160 would not apply to the
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`ORDER - 9
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`Case 2:05-cv-03007-FVS Document 17 Filed 06/30/05
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`plaintiffs.
`While plaintiffs’ claim for relief under RCW 49.32.020 may very
`well be preempted by federal law, 29 U.S.C. § 164(a), this preemption
`does not rise to the level of complete preemption, whereby the NLRA
`would be the exclusive means by which the plaintiffs could seek a
`remedy. Absent a finding of unfair labor practice by the defendant
`against one of its employees, the NLRA does not provide any cause of
`action to the plaintiffs. Defendants can raise the defense of
`preemption in state court, but the availability of this defense does
`not provide a basis for removal of this action to federal court.
`Garmon Preemption:
`Garmon preemption is a type of preemption frequently raised in
`labor law cases. Under this doctrine, “when an activity is arguably
`subject to section 7 or section 8 of the Act, the States as well as
`the federal courts must defer to the exclusive competence of the
`National Labor Relations Board.” San Diego Bldg. Trades Council v.
`Garmon, 359 U.S. 236, 245, 79 S. Ct. 773, 780, 3 L. Ed. 2d 775 (1959).
`The Ninth Circuit has addressed the issue of Garmon preemption and has
`been clear as to the doctrine’s meaning and effect. Ethridge, 861 F.2d
`1389. The Ninth Circuit has stated:
`Sections 7 and 8 do not confer original federal court
`jurisdiction over action within its scope; they confer
`jurisdiction in the first instance upon the National Labor
`Relations Board. Under principles announced in [Garmon], both
`state and federal courts generally lack original jurisdiction to
`determine disputes involving conduct actually or arguably
`protected or prohibited by the NLRA. The Supreme Court has
`considered it essential to the administration of the NLRA that
`determinations regarding the scope and effect of §§ 7 and 8 ‘be
`left in the first instance to the National Labor Relations Board.
`Id. at 1397 (quoting United Ass’n of Journeymen & Apprentices of
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`ORDER - 10
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`Case 2:05-cv-03007-FVS Document 17 Filed 06/30/05
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`Plumbing & Pipe Fitting Indus., Local No. 57 v. Bechtel Power Corp.,
`834 F.2d 884, 886-887 (10th Cir. 1987) (citations omitted), cert.
`denied, 486 U.S. 1055, 108 S. Ct. 2822, 100 L. Ed. 2d 923 (1988)).
`A claim of preemption under Garmon raises a question of whether
`the State or the NLRB has jurisdiction over the dispute. Id. at 1399
`(quoting International Longshoremen’s Ass’n v. Davis, 476 U.S. 380,
`391, 106 S. Ct. 1904, 1912, 90 L. Ed. 2d 389 (1986)). When a
`defendant raises a claim of preemption under Garmon, the claim is
`“‘that the state court has no power to adjudicate the subject matter
`of the case, and when a claim of Garmon preemption is raised, it must
`be considered and resolved by the state court.’” Ethridge, 861 F.2d at
`1399 (quoting International Longshoremen’s Ass’n, 476 U.S. at 393, 106
`S. Ct. at 1913) (emphasis in original). The state court is capable of
`determining whether or not its has jurisdiction over this matter and
`whether the activities at issue fall with in sections 7 and/or 8 of
`the NLRA. Ethridge, 861 F.2d at 1400-01. As the Ninth Circuit has
`set forth, “state law actions claimed to be preempted by sections 7
`and 8 of the NLRA are not removable to federal court.” Id. at 1400.
`Therefore, Garmon preemption is not a proper basis for removal of the
`plaintiffs’ action from Washington State Superior Court to this Court.
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`Attorney’s Fees:
`In their Motion to Remand this case back to Washington State
`Superior Court, the plaintiffs ask this Court to award attorney’s
`fees. There is statutory support for this request. “An order
`remanding [a] case may require payment of just costs and actual
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`ORDER - 11
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`Case 2:05-cv-03007-FVS Document 17 Filed 06/30/05
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`expenses, including attorney’s fees, incurred as a result of the
`removal.” 28 U.S.C. § 1447(c). A court may choose to award
`attorney’s fees when removal of a case is inappropriate. Ansley, 340
`F.3d at 864-65 (finding that the district court did not abuse its
`discretion in awarding attorney’s fees because the “court’s finding
`was not an erroneous view of the law or a clearly erroneous assessment
`of the evidence”). This is just such a case.
`IT IS HEREBY ORDERED:
`1. Plaintiffs’ Motion to Remand (Ct. Rec. 8) is GRANTED.
`2. Within ten days of entry of this order, Plaintiffs shall file
`and serve their request for attorneys fees along with the appropriate
`documentation and memoranda.
`3. Snokist will have ten days in which to file and serve a
`response to plaintiffs' request.
`4. Any reply that plaintiffs wish to submit is due within five
`days of Snokist's filing.
`IT IS SO ORDERED. The District Court Executive is hereby
`directed to enter this order and furnish copies to counsel.
`DATED this 30th day of June, 2005.
`
` s/ Fred Van Sickle
`Fred Van Sickle
`United States District Judge
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`ORDER - 12