OpenJurist

849 F2d 1476 Ross v. Safeway Stores Inc

849 F.2d 1476

Unpublished Disposition

Charles R. ROSS, Jr. Plaintiff-Appellant,
v.
SAFEWAY STORES, INC.; United Food & Commercial Workers
Union, Local 1119; Randy Grimes; Trish Brazil,
et al. Defendants-Appellees.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

No. 87-2143.

United States Court of Appeals, Ninth Circuit.

Submitted May 26, 1988.*
Decided June 16, 1988.
As Amended on Denial of Rehearing Sept. 26, 1988.

Before JAMES R. BROWNING, Chief Judge, and HUG and BEEZER, Circuit Judges.

1

MEMORANDUM**

2

Ross sued his former employer and union for breach of contract, breach of the implied covenant of good faith, and intentional infliction of emotional distress. The district court found these state law claims were preempted by section 301 of the Labor Management Relations Act, 29 U.S.C. Sec. 185, and thus were properly removable. The court found that plaintiff's claims were barred by the six-month statute of limitations set forth in DelCostello v. Teamsters, 462 U.S. 151 (1983), and granted summary judgment to defendants. We affirm.

3

Ross was employed by defendant Safeway Stores, and covered by a collective bargaining agreement between Safeway and defendant Union. He alleges that Safeway refused his request to be scheduled so as not to interfere with his law school classes, refused to allow him to continue working full-time, harassed him by changing his schedule and work assignments, and discharged him without just cause.

4

These allegations concern matters which are governed in specific detail by the collective bargaining agreement. This agreement contains clauses dealing with discharge, grievance procedure, seniority, schedule selection, and part-time and full-time work. Therefore, Ross' claims are "substantially dependent" upon the analysis of the terms of a collective bargaining agreement.1 As such, his claims are preempted by section 301 of the Labor Management Relations Act. See Allis-Chalmers v. Lueck, 471 U.S. 202, 213 (1985); Young v. Anthony's Fish Grottos, Inc., 830 F.2d 993, 1002 (9th Cir.1987); Scott v. Machinists Automotive Trades District Lodge No. 190, 827 F.2d 589, 594 (9th Cir.1987); Truex v. Garrett Freightlines, 784 F.2d 1347, 1350-52 (9th Cir.1985).2

5

Ross challenges the district court's denial of his motion to remand, arguing that federal preemption is only a defense, and not a permissible basis for removal. However, in labor law cases like this one, we have repeatedly applied the rule that a district court may properly look "beyond the face of the complaint to determine whether the contract claim was in fact a section 301 claim for breach of a collective bargaining agreement 'artfully pleaded' to avoid federal jurisdiction." Young, 830 F.2d at 997; see also Scott, 827 F.2d at 591 (agreeing that removal is appropriate when claims are actually federal in nature); Truex, 784 F.2d at 1349-50.3 To his credit, Ross does not dispute the fact that if his claims were properly removed federal labor law claims, they are barred by the six-month limitations period established in DelCostello, supra. We have carefully reviewed all of Ross' other claims of error and find them without merit.4

6

AFFIRMED.

*

The panel finds this case appropriate for submission without argument pursuant to 9th Cir.R. 34-4 and Fed.R.App.P. 34(a)

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1

Ross contends he had an individual agreement allowing him to work part-time and only on a particular schedule. However, it is well-established in this Circuit that an agreement between a union-represented employee and his employer is only enforceable as part of the collective bargaining agreement, and thus claims based on the individual contracts of represented employees are preempted by section 301. Young v. Anthony's Fish Grottos Inc., 830 F.2d 993, 997-98 (9th Cir.1987); Stallcop v. Kaiser Foundation Hospitals, 820 F.2d 1044, 1048 (9th Cir.1987); Bale v. General Telephone Co., 795 F.2d 775, 779 (9th Cir.1986)

2

Ross relies upon our decision in Tellez v. Pacific Gas & Electric Co., 817 F.2d 536, 539 (9th Cir.1987), where we found no preemption of an emotional distress claim where the "agreement is silent on work conditions, and vague on disciplinary formalities. It neither requires nor regulates suspension letters. Accordingly, examination or interpretation of the agreement would not help to resolve Tellez's claim." Id. By contrast here, the collective bargaining agreement directly speaks to nearly all the subjects covered by Ross' allegations and offers a detailed grievance procedure to remedy violations of these contractual provisions

3

Ross' challenge to the removal procedure employed by the district court relies on a provision applicable only to criminal cases, 28 U.S.C. Sec. 1446(c), and is thus frivolous

4

For the first time in this litigation, Ross claims in his briefs on appeal that his discharge violated the state and federal bans on age discrimination. If we were inclined to address this contention at this late date, we would note that age discrimination claims must be filed with the EEOC within 300 days of notice of discharge (29 U.S.C. Sec. 626(d)) or, under state law, with the Department of Fair Employment and Housing within one year. Cal.Gov't Code Sec. 12965. Moreover, federal courts would have no jurisdiction to entertain any age discrimination claim until Ross had first exhausted his administrative remedies