United States District Court, W.D. Wisconsin
MARK L. FISCHER, Plaintiff,
v.
UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERSINTERNATIONAL UNION, Defendant.
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 ...