Employment Law Daily Union apprentice’s state-law disability bias claims not completely preempted by federal labor law
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Wednesday, July 5, 2017

Union apprentice’s state-law disability bias claims not completely preempted by federal labor law

By Kathleen Kapusta, J.D.

The state-law discrimination and retaliation claims of a participant in a union’s apprenticeship program were not completely preempted by federal labor laws, the Eighth Circuit ruled, and so the court below lacked removal jurisdiction over the case. The district court’s order of dismissal was vacated and the case was remanded to the lower court with directions to remand it to the state court from which it was removed (Markham v. Wertin, June 29, 2017, Wollman, R.).

Five years after the plaintiff enrolled in the union’s joint apprenticeship and training program (JATC), he lost consciousness while at an on-the-job training assignment. He called in sick the next day and was terminated from the assignment by the program’s supervisor, who instructed him to submit a doctor’s note documenting why he was absent. The note stated that the plaintiff had tested positive for tetrahydrocannabinol (THC), the active compound in marijuana, but also explained that he had been prescribed a legal synthetic version of THC to treat his Crohn’s Disease.

Probation. The plaintiff was then placed on probation and after complaining that he believed it was because of his illness, he was not assigned to any on-the-job training for several months and then was allegedly given training assignments for very small jobs or jobs involving menial work. At the supervisor’s suggestion, he was ultimately removed from the program. He then sued in state court alleging the union had violated the Missouri Human Rights Act by failing to accommodate his disability, discriminating against him based on his disability, and retaliating against him for reporting his disability and seeking accommodation. He also alleged that the supervisor had aided and abetted the union’s discriminatory and retaliatory conduct.

Preempted. The union removed the case to federal court and moved to dismiss, attaching the collective bargaining agreement, which set forth the terms, conditions, and responsibilities of the JATC. The plaintiff moved to remand and sought leave to amend but the district court granted the union’s motion, finding his claims implicated the CBA and were completely preempted by Section 301 of the LMRA and by NLRA Section 9(a) because they were in effect claims of breach of the union’s duty of fair representation. Because the claims constituted “a hybrid § 301/duty of fair representation action,” the district court dismissed the suit as barred by the six-month statute of limitations.

Discrimination claim. Turning first the plaintiff’s aiding and abetting claim, the appeals court noted that under Section 213.070(1) of the Missouri Revised Statutes, it is an unlawful discriminatory practice to “aid, abet, incite, compel, or coerce the commission of acts prohibited under this chapter.” To state a claim under this provision, the plaintiff had to show the union committed acts prohibited under the MHRA and that the supervisor aided and abetted the commission of those acts, observed the court, noting that it had to consider whether Section 301(a) of the LMRA completely preempts the employee’s claims against the union to determine whether it preempts his aiding-and-abetting claim against the supervisor.

The plaintiff alleged he could perform the job with or without reasonable accommodation and that he “requested the reasonable accommodation that he be allowed to continue taking his [prescription medication].” Taking these allegations as true, the court found that whether he was disabled and whether he could be reasonably accommodated were not substantially dependent on analyzing the CBA.

Although the supervisor argued that the discrimination claim was nonetheless preempted because a court would have to interpret the CBA to determine what right the plaintiff had to training assignments and what duties were imposed on the union to make those assignments, the court pointed out that the CBA and related standards did not set forth the manner in which the JATC places apprentices in job training assignments but rather spoke generally about the JATC’s authority and responsibilities. Noting that the plaintiff did not challenge the JATC’s authority to place, transfer, or terminate his agreement but rather alleged that his disability contributed to the union’s failure to place him and its decision to terminate him, the court found the legal character of the discrimination claims were independent of the rights established in the CBA and related standards.

Retaliation claim. Nor did Section 301 preempt the plaintiff’s retaliation claim, said the court, reiterating that his assertion the union retaliated against him by failing to place him in training assignments did not substantially depend on an analysis of the CBA. For guidance, the court looked to its cases addressing preemption of retaliation claims asserted under Missouri Revised Statutes Section 287.780, which provides a civil cause of action to employees discharged or discriminated against for exercising their rights under Missouri worker’s compensation law. In those cases, the court observed, it has held that the doctrine of complete preemption does not apply so as to give a retaliatory discharge claim “the status of a § 301 claim from the beginning.”

Having determined that Section 301(a) did not completely preempt the plaintiff’s discrimination and retaliation claims against the union, the court concluded that his aiding-and-abetting claim was also not completely preempted. While the supervisor’s defenses to the claim might refer a court to the CBA and related statement of policies, which set forth specific grounds of just cause for termination, any such defense was not enough to confer federal jurisdiction on the ground of complete preemption.

NLRA preemption. Finally, the court rejected the supervisor’s contention that the duty of fair representation completely preempted the plaintiff’s state-law claims because “[t]hat duty, imposed by federal labor law, completely occupies the area of law regarding the obligation of the Union and its agents toward members to act in a non-discriminatory manner.” Not only has Congress never exercised authority to occupy the entire field in the area of labor legislation, the supervisor failed to show the discrimination and retaliation claims conflicted with NLRA Section 9(a) or otherwise frustrated the federal scheme.

Further, his reliance on Vaca v. Sipes was misplaced, said the court, observing that Vaca was not a case of complete preemption concerning subject matter jurisdiction in federal court, but instead addressed whether ordinary preemption required the application of federal law in state court. Explaining that ordinary preemption is distinct from the jurisdictional doctrine of complete preemption used to remove state claims to federal court, the court observed that it is instead a federal defense that exists where a federal law has superseded a state-law claim. While the supervisor could assert a preemption defense in state court after the case is remanded, the presence of a federal question in a defensive argument “does not overcome the paramount policies embodied in the well pleaded complaint rule—that the plaintiff is the master of the complaint, that a federal question must appear on the face of the complaint, and that the plaintiff may, by eschewing claims based on federal law, choose to have the cause heard in state court.”

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