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HESS v. B & B PLASTICS DIV. OF METAL CLADDING

August 11, 1994

CAROLYN K. HESS, Plaintiff,
v.
B & B PLASTICS DIVISION OF METAL CLADDING, INC., and LOCAL 686 and the INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL WORKERS OF AMERICA, Defendants.



The opinion of the court was delivered by: JOHN T. CURTIN

 Plaintiff Carolyn K. Hess brought an action in state court against her former employer, defendant B & B Plastics Division of Metal Cladding, Inc. ("B & B Plastics"), and her union, defendants Local 686 and the International Union, United Automobile, Aerospace and Agricultural Implement Worker of America ("UAW"). She claims that B & B Plastics discriminated against her because of her sex in violation of Article 15 of the New York State Human Rights Law, Exec. L. § 296(1)(a) by firing her for repeated tardiness and absenteeism. She also claims the union violated subsection (1)(c) of the same Human Rights Law by discriminatorily refusing to follow through on her grievance.

 Defendants Local 686 and the UAW removed the case to federal court. Despite the fact that the complaint only cites violations of state law, the union contends that Hess's suit over an alleged failure of their duty of representation actually states a claim under the Labor Management Relations Act of 1947 ("LMRA"), 29 U.S.C. § 185. Defendants maintain that since the LMRA completely preempts Hess's state law claim, this court would have had original jurisdiction, and removal is proper. 42 U.S.C. 1441.

 DISCUSSION

 Plaintiff Hess asserts that her complaint is limited to claims of violations of the New York State Human Rights Law which are sufficiently independent of federal labor law to warrant a remand to state court.

 
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.

 Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 96 L. Ed. 2d 318, 107 S. Ct. 2425 (1987) (citations omitted).

 The defendant unions oppose a remand. They argue that the "complete preemption doctrine" should be applied here as an exception to the well-pleaded complaint rule because the complaint asserts state law claims which seek to enforce rights that arise under the collective bargaining agreement ( Teamsters v. Terry, 494 U.S. 558, 108 L. Ed. 2d 519, 110 S. Ct. 1339 (1990)), and are thus completely preempted by Section 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185. A plaintiff may not defeat removal by "artfully" omitting to plead essential federal issues in the complaint. Franchise Tax Bd. of California v. Construction Laborers Vacation Trust for Southern California, 463 U.S. 1, 23, 77 L. Ed. 2d 420, 103 S. Ct. 2841 (1983). Moreover,

 
Federal pre-emption is ordinarily a federal defense to the plaintiff's suit. As a defense, it does not appear on the face of a well-pleaded complaint, and therefore, does not authorize removal to federal court. . . . One corollary of the well-pleaded complaint rule developed in the case law, however, is that Congress may so completely pre-empt a particular area that any civil complaint raising this select group of claims is necessarily federal in character. . . . [The Supreme] Court has singled out claims preempted by § 301 of the LMRA . . . for such special treatment.

 Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58, 63-64, 95 L. Ed. 2d 55, 107 S. Ct. 1542 (1987) (citations omitted).

 Defendants maintain that if an employee files a state action against her union based upon the union's conduct during the grievance process, the claim is fairly characterized as a breach of the duty of fair representation which is preempted by federal law and therefore removable. See, e.g., In re Glass Workers Local No. 173, 983 F.2d 725, 728-29 (6th Cir. 1993); King v. Hoover Group, Inc., 958 F.2d 219, 222 (8th Cir. 1992). In the cases cited by the defendants, the courts expressly found that even though the complaint had stated a violation of state law, in fact "no claims against the Union other than those which relate directly to its representation of her through the . . . grievance process [were pleaded]. . . ." In re Glass Workers, 983 F.2d at 728. Since the claim here is that the union discriminated against the plaintiff when it failed to follow through on her grievance, it is similarly related to the defendant union's duty of fair representation.

 Defendants contend further that § 301 of LMRA preempts state law claims which are founded on rights created by a collective bargaining agreement ("CBA") or are "'substantially dependent on analysis of a collective-bargaining agreement.'" Caterpillar, at 428 U.S. at 394, quoting Electrical Workers v. Hechler, 481 U.S. 851, 859 n.3, 95 L. Ed. 2d 791, 107 S. Ct. 2161 (1987). They argue that any duty which they may owe to Hess derive from or are created by the CBA. Absent this agreement, the defendants would have no duty to file grievances or attempt to settle employment disputes between the plaintiff and her employer.

 Defendants also maintain that the plaintiff's claims are substantially dependent on analysis of the CBA. Hess claims that B&B's absenteeism policy was unfairly applied to her and that the union discriminated against her in withdrawing her grievance. Thus, the court would have to decide whether the plaintiff was properly terminated ...


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