Fischer v. United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union

          OPINION AND ORDER

          WILLIAM M. CONLEY DISTRICT JUDGE.

         Defendant United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (“the Union”) removed this lawsuit to federal court, asserting that plaintiff Mark L. Fischer's claim for breach of the Union's duty of fair representation arises under -- is, indeed, completely preempted by --federal law. Specifically, defendant contends that plaintiff's claim is a “‘hybrid' section 301/fair representation” claim, which is governed by section 301 of the Labor-Management Relations act, 29 U.S.C. § 185, and sections 8(b) and 9(a) of the National Labor Relations Act, 29 U.S.C. §§ 158(b), 159(a). Pending before the court are two, related motions: defendant's Rule 12(b)(6) motion to dismiss plaintiff's claim as time-barred (dkt. #5); and plaintiff's motion to remand (dkt. #9).

         Plaintiff opposes defendant's motion to dismiss and argues for remand on the basis that: (1) despite claiming “a breach of the Union's duty of fair representation under federal and state law” in his complaint (Compl. (dkt. #1-1) ¶ 18 (emphasis added)), his claim is not governed by federal law; and (2) in light of that, his claim is timely under the one-year statute of limitations applicable to unfair representation claims brought by public employees, Wis.Stat. §111.07(14). Because plaintiff's position defies controlling Supreme Court and Seventh Circuit case law, the court must deny his motion to remand and grant the defendant's motion to dismiss.

         ALLEGATIONS OF FACTS^[1]

         On behalf of its affiliates, the Union entered into a Collective Bargaining Agreement (“CBA”), with NewPage Wisconsin Systems, Inc., effective April 1, 2010, and binding through March 31, 2015.^[2] The Union and NewPage also were parties to a Master Labor Agreement, effective December 21, 2012, through December 20, 2016. This Master Agreement extended the CBA through March 31, 2018.

         At some point, NewPage was purchased by Verso Corporation. As part of the acquisition, Verso agreed to assume NewPage's rights and responsibilities under both the CBA and the Master Agreement, including being bound by the agreements' terms and conditions.

         Mark Fischer was an employee of Verso and a member of the bargaining unit represented by the Union. Fischer was terminated by Verso on December 21, 2105. The Union then filed a grievance on Fischer's behalf, challenging his termination under the grievance and arbitration procedure outlined in the CBA. After that grievance proved unsuccessful, however, the Union decided not to pursue arbitration. Critical to the motion to dismiss and as alleged in plaintiff's complaint itself, the Union mailed Fischer a letter informing him of its decision not to pursue arbitration on February 12, 2016. (Compl. (dkt. #1-1) ¶ 16; Feistel Decl., Ex. C (dkt. #7-7).)^[3]

         On February 9, 2017, Fischer filed a complaint against the Union in the Circuit Court of Wood County in the State of Wisconsin, alleging breach of a duty of fair representation.^[4] While Fischer neither asserts a claim against his former employer nor names Verso as a defendant, Fischer also alleges that his termination “was unlawful under the Collective Bargaining Agreement because Plaintiff did not have the requisite number of violations within a one (1) year period that would have warranted a termination under Section 14(b) of the Collective Bargaining Agreement.” (Compl. (dkt. #1-1) ¶ 11.) As referenced above, the defendant then timely removed this lawsuit to federal court.

         OPINION

         I. Nature of Claim

         A claim that an employer breached a CBA and that a union breached the duty of fair representation owed to its members is commonly referred to as “‘hybrid' section 301/fair representation” claim, which is governed by the LMRA and the NLRA. See DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 163-65 (1983); Neal v. Newspaper Holdings, Inc., 349 F.3d 363, 368 (7th Cir. 2003). As the Supreme Court explained in DelCostello, while an employee like Fischer may opt to sue both his former employer and the Union, or only one of those entities, “the case he must prove is the same.” Id. at 165. Because the claims are “inextricably interdependent, ” “[t]o prevail against either the company or the Union, employee-plaintiffs must not only show that their discharge was contrary to the contract but must also carry the burden of demonstrating a breach of duty by the Union.” Id. at 164-65.

         In response, plaintiff argues that he should be able to retain the option to pursue a breach of duty of fair representation claim under state law only, because “it is not necessary to establish the breach of the Collective Bargaining Agreement in order to establish that the Defendant Union violated its duty of fair representation.” (Pl.'s Mot. for Remand (dkt. #9) ¶¶ 2, 4; Pl.'s Opp'n (dkt. #12) 2.)^[5] Tellingly, plaintiff stops short of actually identifying the source of this common law or other state law claim, including any case law in support of such a claim. Plaintiff's silence is understandable, since federal law completely preempts any state law claim for a breach of duty of fair representation against a labor union. In fairness, the Seventh Circuit has only assumed without adopting this express holding, but other circuit courts universally have held that state-law claims against labor unions are preempted by the NLRA if they attempt to impose a duty of fair representation. See Thomas v. Nat'l Ass'n of Letter Carriers, 225 F.3d 1149, 1158 (10th Cir. 2000); BIW Deceived v. Local S6, Indus. Union of Marine & Shipbuilding Workers, 132 F.3d 824, 831-32 (1st Cir. 1997); Richardson v. United Steelworkers of Am., 864 F.2d 1162, 1169 (5th Cir. 1989); see also Nelson v. Stewart, 422 F.3d 463, 470 (7th Cir. 2005) (“We may assume for purposes of our decision today that our sister circuits have decided correctly that a union's implied duty of fair representation involving a section 301 contract effects complete preemption.”). This court sees no basis -- and plaintiff has articulated none -- to depart from this line of cases.

         Accordingly, plaintiff's claim arises under federal law, and it was properly removed to this court. As such, the court must deny plaintiff's motion to remand.

         II. Statute of ...