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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

GEORGE THIBODEAUX,

Plaintiff,

v.

TEAMSTERS LOCAL 853,

Defendant.

Case No. 17-cv-00188-MEJ 

ORDER RE: PLAINTIFF’S MOTION 

TO REMAND

Re: Dkt. No. 13

INTRODUCTION

Pending before the Court is Plaintiff George Thibodeaux’s Motion to Remand the action to 

Alameda Superior Court. See Mot., Dkt. No. 1. Defendant Bay Area Building Material 

Teamsters, Local 853 (“Defendant,” “Local 853,” or “Teamsters”) filed an Opposition (Dkt. No. 

14), and Plaintiff filed a Reply (Dkt. No. 15). 

The Court previously found this matter suitable for decision without oral argument and 

vacated the hearing scheduled for March 2, 2017. See Dkt. No. 18. Having considered the 

parties’ positions, the relevant legal authority, and the record in this case, the Court DENIES the 

Motion.

BACKGROUND

For twenty years, Plaintiff was employed as a commercial driver by Central Concrete 

Supply Co. and was a member of Local 853. Compl. ¶ 1, Dkt. No. 1, Ex. A. Central Concrete, 

Local 853, and Plaintiff are governed by the terms of a “written agreement” that prevents 

terminating an employee without just cause. Id. ¶¶ 10-11. Plaintiff alleges Central Concrete

terminated him without just cause in 2013. Id. ¶ 14. Pursuant to the terms of the agreement, all 

disputes arising under the terms of the agreement “shall be resolved” through an escalating dispute 

resolution procedure. Id. ¶ 20. The first step of the dispute may be taken up with local 

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management at the discretion of the employee; however, any formal dispute shall be taken up by 

the local union in the locality with the employer. Id. If the union and the employer are unable to 

resolve the dispute, the second step requires the dispute to be referred to the Board of Adjustment. 

Id. If the Board of Adjustment fails to resolve the dispute, at the third step, the dispute “shall be 

submitted to an impartial arbitrator upon the request of either party.” Id. Plaintiff alleges he 

requested Local 853 take up a formal dispute with his employer; Local 853 did so. Id. ¶¶ 14-15. 

When the dispute was not resolved, the Board of Adjustment conducted a hearing. Id. ¶ 17. After 

the Board of Adjustment failed to resolve the dispute, Local 853 wrote Plaintiff and represented 

that the “grievance was final and binding. . . . The union has exhausted its defense of your 

termination under the collective bargaining agreement.” Id. ¶¶ 17, 18. After Plaintiff discovered 

Local 853’s statement was false, he requested Defendant submit his dispute to an impartial 

arbitrator pursuant to the terms of the agreement. Id. ¶¶ 18-19. Plaintiff alleges Defendant did not 

submit his dispute to an impartial arbitrator. Id. ¶ 20.

Plaintiff filed a complaint in California Superior Court against Defendant Teamsters Local 

853 alleging four state law claims for breach of contract, breach of the covenant of good faith and 

fair dealing, intentional misrepresentation, and negligent misrepresentation. See Compl. 

Defendant removed the action to this Court. Defendant asserts the Complaint alleges a 

breach of the duty of fair representation, a claim that arises under the National Labor Relations 

Act (“NLRA”), 29 U.S.C. § 151 et seq., a federal question that gives the Court subject matter 

jurisdiction. See Not. of Removal ¶ 3. 

LEGAL STANDARDS

Subject matter jurisdiction is fundamental and cannot be waived. Billingsley v. C.I.R., 868 

F.2d 1081, 1085 (9th Cir. 1989). Federal courts can adjudicate only those cases which the 

Constitution and Congress authorize them to adjudicate, i.e., those involving diversity of 

citizenship or a federal question, or those to which the United States is a party. Kokkonen v. 

Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Chen-Cheng Wang ex rel. 

United States v. FMC Corp., 975 F.2d 1412, 1415 (9th Cir. 1992) (federal courts have no power to 

consider claims for which they lack subject-matter jurisdiction).

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Pursuant to 28 U.S.C. § 1441(a), “any civil action brought in a State court of which the 

district courts of the United States have original jurisdiction, may be removed by the defendant or 

the defendants, to the district court of the United States for the district and division embracing the 

place where such action is pending.” However, the removal statutes are construed restrictively so 

as to limit removal jurisdiction. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 

(1941); see also Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003)

(“Where doubt regarding the right to removal exists, a case should be remanded to state court.”). 

The burden of establishing federal jurisdiction for purposes of removal is on the party seeking 

removal. See Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004). The district court 

must remand the case if it appears before final judgment that the court lacks subject matter 

jurisdiction. 28 U.S.C. § 1447(c); Abada v. Charles Schwab & Co., 300 F.3d 1112, 1117 n.2 (9th 

Cir. 2002).

Subject matter jurisdiction is determined from the face of the complaint. Rivet v. Regions 

Bank of La., 522 U.S. 470, 475 (1998); see also Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 

(1987) (federal question must be presented on face of plaintiff’s properly pleaded complaint); Fifty 

Assocs. v. Prudential Ins. Co. of Am., 446 F.2d 1187, 1190 (9th Cir. 1970) (existence of diversity 

jurisdiction must be sufficient on the face of the complaint). A federal defense or counterclaim is 

insufficient to confer subject matter jurisdiction and warrant removal to federal court. 

Nevertheless, the preemptive force of certain statutes “completely preempt[s]” an area of law. See 

Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987). A claim that is based on preempted 

law is considered to arise under federal law, and thus may be removed to federal court. See 

Balcorta v. 20th Century-Fox Film Corp., 208 F.3d 1102, 1107 (9th Cir. 2000).

DISCUSSION

Defendant asserts federal question jurisdiction exists on two grounds. First, Defendant 

contends each claim relates to Local 853’s duty of fair representation as the exclusive bargaining 

representative of its members, a duty that arises under the NLRA. Second, Defendant contends 

each claim will require the Court to analyze the terms of the collective bargaining agreement 

(“CBA”) Plaintiff references in the Complaint, and thus is preempted by Section 301 of the Labor 

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Management Relations Act (“LMRA”). The Court addresses each argument in turn.

A. Duty of Fair Representation Under the NLRA

In Adkins v. Mireles, the Ninth Circuit explained:

The federal statutory duty which unions owe their members to 

represent them fairly also displaces state law that would impose 

duties upon unions by virtue of their status as the workers’ exclusive 

collective bargaining representative. State law may “constitute an 

impermissible obstacle to the accomplishment of purposes of 

Congress by regulating conduct that federal law has chosen to leave 

unregulated.” The doctrine of fair representation serves both as a 

limited check on the arbitrary exercise of union power and, through 

its limitations, allows unions wide latitude in effectively serving the 

interests of the bargaining unit. To bring a successful state law 

action, aggrieved workers must make a showing of additional duties, 

if they exist, beyond the normal incidents of the union-employee 

relationship. Such duties must derive from sources other than the 

union’s status as its members’ exclusive collective bargaining 

representative, such as an express provision of the collective 

bargaining agreement or a collateral contract. 

526 F.3d 531, 539-40 (9th Cir. 2008) (internal citations omitted). Federal question jurisdiction 

exists when an employee alleges his union has failed to invoke the higher stages of his union’s 

grievance procedure. See Vaca v. Sipes, 386 U.S. 171, 185-87 (1967). Concluding the district 

court correctly found federal law did not preempt the plaintiffs’ breach of contract claim against 

their union, the Adkins Court reasoned the plaintiffs had not shown “for example, an express 

provision of the CBA or a collateral contract that imposed additional enforceable duties upon the 

Union.” Adkins, 526 F.3d at 540. But Plaintiff does allege an express provision of the CBA as the 

basis for his breach of contract claim, namely, the requirement articulated in Section 20.1(3) to 

present his dispute to an impartial arbitrator at his request. As such, Plaintiff makes a showing of 

duties beyond the normal incidents of the union-employee relationship and Adkins does not appear 

to preempt his claim. 

Plaintiff’s misrepresentation claims appear to be subsumed by Local 853’s duty of fair 

representation and thus to give rise to federal jurisdiction. See Adkins, 526 F.3d at 540-41 

(affirming district court’s conclusion that union’s “alleged failure to accurately describe the 

provisions of the CBA did not violate a general duty of care and [if defendant] breached any duty 

at all, it was one grounded in their special status as union representatives.”). 

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Because the Court concludes Section 301 provides a basis for federal jurisdiction in this 

matter, it does not further analyze the preemptive effect of the duty of fair representation here.

B. Section 301 of the LMRA

1. Failure to Mention Section 301 in Notice of Removal

Plaintiff observes Defendant did not mention Section 301 preemption as a basis for federal 

jurisdiction in its Notice of Removal. See Reply at 3 n.1. Defendant only mentions the duty of 

fair representation under the NLRA as a basis for federal question jurisdiction. See Not. of 

Removal ¶ 3 (“This action . . . may be removed . . . pursuant to [28 U.S.C. § 1441(b)] in that the 

Complaint alleges a breach of the duty of fair representation, a claim that arises under the 

[NLRA], 29 U.S.C. Section 151, et seq.”); see also Civ. Cover Sheet, Dkt. No. 1-1 (indicating

cause of action is “29 U.S.C. Section 151 . . . Alleged breach of the duty of fair representation.”).

In the supplemental brief the Court requested, Defendant argues it sufficiently invoked 

Section 301 as a ground for removal because that section is part of the LMRA. Sur-Reply at 2, 

Dkt. No. 17. In addition, Defendant asks for leave to amend the Notice of Removal pursuant to 28 

U.S.C. § 1653. To the extent the Notice of Removal is defective for failure to specifically invoke 

Section 301, the Court finds this omission can be cured. See 28 U.S.C. § 1653 (“Defective 

allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts.”); 

Morongo Band of Mission Indians v. Cal. State Bd. of Equalization, 858 F.2d 1376, 1381 (9th Cir. 

1988) (“Section 1653 provides a remedy for defective allegations only; ‘it does not provide a 

remedy for defective jurisdiction itself.’”) (citing Brennan v. Univ. of Kansas, 451 F.2d 1287, 

1289 (10th Cir.1971) (section 1653 empowers the courts to correct “defects of form, not 

substance”) (footnote omitted)). Because the Notice of Removal invokes federal jurisdiction as a 

basis for removal, allowing Defendant to amend the Notice to refer to Section 301 preemption is 

the type of “clarification” contemplated by Section 1653. Cf. Sonoma Falls Developers, LLC v. 

Nev. Gold & Casinos, Inc., 272 F. Supp. 2d 919, 926 (N.D. Cal. 2003) (“Because the notice of 

removal does not assert federal question subject matter jurisdiction under 28 U.S.C. § 1331, it is 

ineligible for amendment [to add federal jurisdiction] on the ground of clarification.” (citing, 

among other authorities, 14A Wright, Miller & Cooper, Federal Practice & Procedure § 3733 at 

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358–61 (3d ed. 1998) (“The notice may be amended only to set out more specifically the grounds 

for removal that already have been stated, albeit imperfectly, in the original notice. Completely 

new grounds for removal may not be added and missing allegations may not be furnished.”)). 

Defendant’s request for leave to amend the Notice is granted. The Notice is deemed amended; 

Defendant need not refile the Notice. 

2. Scope of Section 301 Preemption

Pursuant to Section 301 of the LMRA, “[s]uits for violation of contracts between an 

employer and a labor organization representing employees in an industry affecting commerce . . . 

may be brought in any district court of the United States having jurisdiction of the parties.” 29 

U.S.C. § 185(a). “[N]ot long after” the passage of Section 301, the Supreme Court held that 

Section 301 was not “simply jurisdictional[, but i]nstead, it should be understood . . . as a 

congressional mandate to the federal courts to fashion a body of federal common law to be used to 

address disputes arising out of labor contracts.” Kobold v. Good Sam. Reg’l Med. Ctr., 832 F.3d 

1024, 1032 (9th Cir. 2016) (quotation marks and citation omitted). The Ninth Circuit explained:

[T]his federal common law preempts the use of state contract law in 

CBA interpretation and enforcement. . . . In addition to promoting 

the development of a uniform federal labor law, § 301 preemption 

doctrine is designed in large part to assure that agreements to 

arbitrate grievances would be enforced, regardless of the vagaries of 

state law and lingering hostility toward extrajudicial dispute 

resolution. To give the policies that animate § 301 ... their proper 

range, the Supreme Court has expanded the pre-emptive effect of § 

301 ... beyond suits alleging contract violations to state law claims 

grounded in the provisions of a CBA or requiring interpretation of a 

CBA. 

Id. (internal quotation marks and citations omitted); see also Caterpillar Inc., 482 U.S. at 394 

(Section 301 not only preempts state law claims “founded directly on rights created by” a CBA, 

but also “claims substantially dependent on analysis of” a CBA.). 

“The plaintiff’s claim is the touchstone for this analysis; the need to interpret the CBA 

must inhere in the nature of the plaintiff’s claim.” Cramer v. Consol. Freightways Inc., 255 F.3d 

683, 691 (9th Cir. 2001) (en banc). A state law claim is “substantially dependent” on a CBA if it 

“cannot be resolved without interpreting the applicable CBA.” Id. But the fact that a CBA will be 

“consulted in the course of state law litigation does not require preemption.” See id. at 690-91; see 

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also Detabali v. St. Luke’s Hosp., 482 F.3d 1199, 1203 (9th Cir. 2007) (“A reference to or 

consideration of the terms of a collective bargaining agreement is not the equivalent of interpreting 

the meaning of the terms.” (internal quotation marks and citation omitted)); Kobold, 832 F.3d at

1032 (“not every dispute concerning employment, or tangentially involving a provision of a 

[CBA], is preempted by § 301.” (quotation omitted)).

Thus, the scope of Section 301 preemption is not all-encompassing. To determine whether 

Plaintiff’s claims are preempted, the undersigned applies the two-step inquiry mandated by 

Kobold. First, the undersigned must determine whether the cause of action involves a right 

conferred upon Plaintiff by state law, not by the CBA. Kobold, 832 F.3d at 1032. If the right 

sought to be enforced “exists solely as a result of the CBA,” the claim is preempted. Id. If the 

right exists independently of the CBA, the undersigned must determine whether the right is 

“substantially dependent” on analyzing the CBA. If so, the claim is preempted; if not, the claim 

can proceed under state law. Id. 

3. Analysis

Plaintiff alleges the “tripartite” relationship between him, Local 853, and his employer is 

governed by the “Agreement.” Compl. ¶ 10. He quotes Sections 19 and 20.1 of the Agreement in 

his Complaint and relies upon these two sections to assert each of his claims. See Compl. at ¶¶ 10-

12, 22-26, 28-32, 34-35, 42-43. Each of his claims exists solely as a result of the Agreement, even 

if state law is used to enforce a particular theory of liability. The rights Plaintiff seeks to assert are 

“substantially dependent” on analyzing the Agreement. Plaintiff nevertheless argues his state law 

claims are not preempted by Section 301 because he does “not make reference to any [CBA] 

between the Teamsters and Plaintiff’s employer. . . .” Reply at 4. While this statement is 

technically accurate, it is not persuasive. 

First, Plaintiff quotes in his Complaint the October 16, 2013 response from Local 853 Vice 

President Bo Morgan, in which Morgan informs Plaintiff the “grievance was final and binding. . . . 

The union has exhausted its defense of your termination under the collective bargaining 

agreement.” Compl. ¶¶ 18, 34, 42; see also id. ¶ 1 (the Teamsters failed to refer Plaintiff’s dispute 

to an impartial arbitrator and “falsely represented to Thibodeaux that it had ‘exhausted its defense 

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of [his] termination under the collective bargaining agreement.’”). In asserting his two 

misrepresentation claims, Plaintiff alleges Morgan’s response was “false, as the Agreement 

required Defendants to submit the dispute regarding Thibodeaux’s termination to an impartial 

arbitrator.” Id. ¶¶ 35, 43. See id. To evaluate whether Morgan’s response is false, a fact-finder 

necessarily must review the CBA Morgan referenced in the October 16, 2013 response. In other 

words, Plaintiff’s misrepresentation claims cannot be resolved without interpreting the CBA. 

Second, the fact Plaintiff carefully did not refer to the Agreement as a CBA by name does 

not change the Court’s analysis. After Plaintiff moved to remand, Defendant moved to dismiss the 

action. See Dkt. No. 11. The Court stayed further briefing on the Motion to Dismiss until 

resolution of the Motion to Remand. See Dkt. No. 13. In support of Defendant’s Motion to 

Dismiss, Bo Morgan attached to his declaration a true and correct copy of the “2008-2013 

Agreement Between International Brotherhood of Teamsters Bay Area Building Material 

Teamsters Locals 287, 315, 853 and Aggregates and Concrete Association of Northern California, 

Inc.” to which Plaintiff refers in the Complaint. Compl. ¶ 10; Morgan Decl., Ex. A, Dkt. No. 11-

1. Morgan describes the document as a CBA. See Morgan Decl. ¶¶ 2-3. The Agreement, on its 

face, is indeed a CBA. See id., Ex. A. Plaintiff’s failure to directly describe the Agreement as a 

CBA appears to be a conscious attempt to artfully plead around the existence of the CBA. The 

Court may look beyond such artful pleading. See Marcus v. UPS, 2014 WL 3421552, at *3 (N.D. 

Cal. July 14, 2014) (“The CBA need not be directly mentioned in the complaint in order for any of 

it claims to be preempted by the LMRA. While Plaintiff suggests otherwise, the absence of 

reference to the CBA from the Complaint in this case, when two of its claims clearly assert the 

violation of a right created by that contract, merely illustrates the conscious attempt to artfully 

plead around it.” (citing cases)); Carlsen v. Stanford Univ., 2014 WL 899362, at *2-3 (N.D. Cal. 

Mar. 4, 2014) (finding removal proper under artful pleading doctrine where plaintiff “improperly 

omitted essential references to a [CBA] in her complaint” because such claims were preempted by 

federal law); Andino v. Kaiser Found. Hosps., 2011 WL 5883975, at *2 (N.D. Cal. Nov. 23, 2011) 

(“Artful pleading exists where a plaintiff states an inherently federal claim in state-law terms.”).

The Court finds Local 853 properly removed the action on the grounds that Plaintiff’s

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claims are founded on rights created by the CBA, or alternatively, substantially dependent on the 

CBA. Plaintiff alleges Local 853 failed to submit his dispute to an independent arbitrator as 

required by the CBA, thereby breaching the terms of the CBA and the implied covenant of good 

faith and fair dealing, and misrepresented the terms of the CBA in writing. As such, Local 853 

“had a right to remove the action on the grounds of LMRA preemption.” Medina v. SEIU-United 

Healthcare Workers W., 2013 WL 3157923, at *3 (N.D. Cal. June 20, 2013); see also Adkins, 526 

F.3d at 539.

CONCLUSION

Plaintiff’s Motion to Remand is DENIED. 

The Court ORDERS Plaintiff to respond to Defendant’s pending Motion to Dismiss by 

March 20, 2017, and Defendant to file any reply by March 27, 2017. The Court will advise the 

parties if it finds a hearing on the Motion to Dismiss is appropriate.

IT IS SO ORDERED.

Dated: March 6, 2017

______________________________________

MARIA-ELENA JAMES

United States Magistrate Judge

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