IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PAUL JOHNSON, 3:14-CV-00922-BR

Plaintiff, OPINION AND ORDER

v.

POWERLINERS, INC.,

Defendant.

ROGER A. HENNAGIN

8 North State Street

Suite 300

Lake Oswego, OR 97034

(503) 636-0400

Attorney for Plaintiff

AMY L. ANGEL

TODD A. LYON

TYLER J. VOLM

Barran Liebman, LLP

601 S.W. Second Ave

Portland, OR 97204

(503) 274-1212

Attorneys for Defendant 

 1 - OPINION AND ORDER

Case 3:14-cv-00922-BR Document 14 Filed 10/29/14 Page 1 of 12
BROWN, Judge.

This matter comes before the Court on Plaintiff Paul

Johnson’s Motion (#5) to Remand. The Court heard oral argument

on September 30, 2014, and took the matter under advisement.

For the reasons that follow, the Court DENIES Plaintiff’s

Motion to Remand.

FACTUAL AND PROCEDURAL BACKGROUND

The following facts are taken from Plaintiff’s Complaint and

from the parties’ statements at oral argument: 

Plaintiff began working as foreman1 for Defendant

Powerliners, Inc., in October 2009. Defendant required Plaintiff

to use his own truck to perform his duties. Between his hiring

in October 2009 and June 2012 Plaintiff used his own pickup truck

to fulfill his duties. 

In June 2012 Plaintiff’s wife broke a bone in her arm, which

required a cast. Plaintiff’s wife drove her manual-transmission

vehicle to work daily before she broke her arm, but she was

unable to drive a manual-transmission vehicle afterwards. As a

result, Plaintiff loaned his wife his pickup truck with an

automatic transmission. 

1 Plaintiff describes the position as “crew foreman” while

Defendant describes it as both “crew foreman” and “Tree Trimmer

Foreman.” Because it is the only foreman position at issue, the

Court describes the position simply as “foreman.” 

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Case 3:14-cv-00922-BR Document 14 Filed 10/29/14 Page 2 of 12
Around that time Plaintiff approached Eric Olson,

Defendant’s president, to request permission to use a company

vehicle until his wife recovered from her injury. Olson

permitted Plaintiff to use a company vehicle temporarily.2 

On or about November 6, 2012, Olson discharged Plaintiff

because of, among other reasons, Plaintiff’s extended use of the

company vehicle. 

On April 15, 2014, Plaintiff filed a lawsuit in Multnomah

County Circuit Court alleging “Olson’s discharge of Johnson

constituted a breach of Powerliner’s commitment that Johnson

could use the company pickup until his wife’s arm had healed.” 

On June 9, 2014, Defendant filed a Notice (#1) of Removal on

the grounds that the lawsuit 

necessarily requires interpretation of a

collective bargaining agreement between the

parties, and thus is governed exclusively by the

Labor Management Relations Act, 29 U.S.C. § 185,

for which this Court has original jurisdiction

under the provisions of 28 U.S.C. § 1331 (federal

question) and which provides this court with

federal question jurisdiction pursuant to the

provisions of 28 U.S.C. § 1441.3

Def.’s Notice of Removal at 2.

On June 27, 2014, Plaintiff filed a Motion (#5) to Remand

2

 Although the parties dispute how long Olson agreed to

allow Plaintiff to use the vehicle, that issue is irrelevant for

purposes of resolving this Motion.

3

 The Collective Bargaining Agreement (CBA) is attached as

an Exhibit to the Declaration (#9) of Eric Olson.

 3 - OPINION AND ORDER

Case 3:14-cv-00922-BR Document 14 Filed 10/29/14 Page 3 of 12
the matter on the ground that Plaintiff’s claim involves

residents of the same state; is based on the common law of the

State of Oregon; does not involve or relate to the CBA between

International Brotherhood of Electrical Workers (IBEW), Local

125, and Defendant; and, therefore, is not preempted by § 301 of

the Labor Management Relations Act (LMRA), 29 U.S.C. § 185(a). 

On September 30, 2014, the Court heard oral argument and

took Plaintiff’s Motion under advisement.

STANDARDS

A motion to remand is the proper procedure for challenging

removal. Leite v. Crane Co., 749 F.3d 1117, 1122 (9th Cir.

2014). 28 U.S.C. § 1446(a) provides in pertinent part: "A

defendant or defendants desiring to remove any civil action from

a State court shall file in the district court of the United

States for the district and division within which such action is

pending a notice of removal." 28 U.S.C. § 1446(b) provides in

pertinent part: "The notice of removal of a civil action . . .

shall be filed within 30 days after the receipt by the defendant,

through service or otherwise, of a copy of the initial pleading

setting forth the claim for relief upon which such action or

proceeding is based."

The removal statute is strictly construed, and any doubt

about the right of removal is resolved in favor of remand.

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Case 3:14-cv-00922-BR Document 14 Filed 10/29/14 Page 4 of 12
Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1252 (9th Cir.

2006). See also Prize Frieze, Inc. v. Matrix, Inc., 167 F.3d

1261, 1265 (9th Cir. 1999), overruled on other grounds by Abrego

Abrego v. The Dow Chem. Co., 443 F.3d 676 (9th Cir. 2006). The

party seeking removal bears the burden of establishing by a

preponderance of the evidence that all removal requirements have

been met. Serrano v. 180 Connect, Inc., 478 F.3d 1018, 1021 (9th

Cir. 2007). See also Valdez v. Allstate Ins. Co., 372 F.3d 1115,

1117 (9th Cir. 2004).

DISCUSSION

As noted, Plaintiff moves to remand this matter on the

grounds that his claim falls outside of the scope of the CBA

between Defendant and Local 125, and, therefore, is not preempted

by § 301 of the LMRA; is based on the common law of the State of

Oregon; and involves residents of the same state.

I. Preemption under § 301 of the LMRA

Section 301 of the LMRA provides:

[Lawsuits] 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, without

respect to the amount in controversy or without

regard to the citizenship of the parties.

29 U.S.C. § 185(a). The Supreme Court has interpreted § 301 as

authorizing the federal courts to develop a federal common law

 5 - OPINION AND ORDER

Case 3:14-cv-00922-BR Document 14 Filed 10/29/14 Page 5 of 12
for the interpretation of CBAs. Cramer v. Consol. Freightways,

Inc., 255 F.3d 683, 689 (9th Cir. 2001)(citing Textile Workers

Union v. Lincoln Mills, 353 U.S. 448, 451 (1957)). The federal

common law preempts the use of state-contract law in the

interpretation and enforcement of CBAs. Id. (citing Local 174,

Teamsters of Am. v. Lucas Flour Co., 369 U.S. 95, 103–04 (1962)). 

In 1985 the Supreme Court “expanded application of § 301

preemption beyond cases specifically alleging contract violation

to those whose resolution ‘is substantially dependent upon

analysis of the terms of an agreement made between the parties in

a labor contract.’” Id. (quoting Allis-Chalmers Corp. v. Lueck,

471 U.S. 202, 220 (1985)).

In Caterpillar, Inc. v. Williams the Supreme Court noted the

“pre-emptive force of § 301 is so powerful as to displace

entirely any state cause of action for violation of contracts

between an employer and a labor organization.” 482 U.S. 386, 394

(1987)(internal quotation marks omitted)(citing Franchise Tax Bd.

v. Constr. Laborers Vacation Trust, 463 U.S. 1, 23 (1983)). The

Court, however, pointed out that § 301 preempts only “claims

founded directly on rights created by collective-bargaining

agreements, and also claims substantially dependent on analysis

of a collective-bargaining agreement.” Id. (internal quotation

marks omitted). The Supreme Court noted in Livadas v. Bradshaw

that “it is the legal character of a claim, as independent of

 6 - OPINION AND ORDER

Case 3:14-cv-00922-BR Document 14 Filed 10/29/14 Page 6 of 12
rights under the collective-bargaining agreement . . . that

decides whether a state cause of action [is preempted].” 512

U.S. 107, 123–24 (1994)(internal citations and quotation marks

omitted). 

The Ninth Circuit has explained further that

[i]f the plaintiff's claim cannot be resolved

without interpreting the applicable CBA[,] . . .

it is preempted. Alternatively, if the claim may

be litigated without reference to the rights and

duties established in a CBA . . . it is not

preempted. 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. If the claim is plainly based

on state law, § 301 preemption is not mandated

simply because the defendant refers to the CBA in

mounting a defense. 

Cramer, 255 F.3d at 691 (citations omitted). Moreover, the claim

is preempted

even in some instances in which the plaintiffs

have not alleged a breach of contract in their

complaint, if the plaintiffs’ claim is either

grounded in the provisions of the labor contract

or requires interpretation of it. Otherwise,

parties would be able to evade the requirements of

section 301 by relabeling their contract claims as

claims for tortious breach of contract or some

other state cause of action, and thus elevate form

over substance. 

Burnside v. Kiewit Pac. Corp., 491 F.3d 1053, 1059 (9th Cir.

2007)(citations and internal quotation marks omitted).

II. The CBA

The CBA between Local 125 and Defendant provides: "The

employer shall . . . have no restrictions except those

 7 - OPINION AND ORDER

Case 3:14-cv-00922-BR Document 14 Filed 10/29/14 Page 7 of 12
specifically provided for in the Collective Bargaining Agreement,

. . . in discharging employees for proper cause.” CBA at 8. The

unauthorized use of company equipment is grounds for termination

under the CBA. CBA at 7. In addition, the CBA defines a

grievance as “a claim by an employee or by Powerliners, Inc. of a

violation of a specific provision of this Agreement, or of any

alleged act or type of supervisory conduct, which unjustly or

unlawfully causes an employee to lose his job or any benefits

arising out of his job.” CBA at 8. 

III. Analysis

As noted, Plaintiff was employed as a foreman and was a

member of the bargaining unit of Local 175. See CBA at 21 (Tree

Trimmer Foreman listed among the classifications). Plaintiff,

however, argues his discharge was for reasons unrelated to the

“conditions of [his] employment.” Specifically, Plaintiff

contends his claim is based on an oral agreement with Olson that

was not work-related; was not grievable under the CBA; and, thus,

was independent of the CBA. Accordingly, Plaintiff argues his

claim is outside of the scope of the CBA. To support his

position Plaintiff asserts he attempted to file a grievance with

the Union, the Union denied his grievance request on the ground

that the matter was outside of the scope of the CBA, and the

Union’s position establishes his claim is not preempted by § 301. 

As a result, Plaintiff contends this case must be remanded. 

 8 - OPINION AND ORDER

Case 3:14-cv-00922-BR Document 14 Filed 10/29/14 Page 8 of 12
According to Defendant, however, Plaintiff was a member of

the bargaining unit represented by Local 125; Plaintiff’s

position as foreman is a recognized job classification under the

CBA; Plaintiff’s employment was subject to the CBA between

Defendant and Local 125 including the protection that discharge

required a showing of “proper cause;” Plaintiff’s claim that

Plaintiff’s discharge was wrongful requires interpretation of the

CBA; and, therefore, his claim is preempted by § 301 of the LMRA.

Because Plaintiff could only be discharged from employment

for “proper cause” under the CBA, the Court concludes Plaintiff’s

claim is contemplated in the CBA and, therefore, appears to be

“grounded in the provisions of the labor contract or require[]

interpretation of it.” See Burnside, 491 F.3d at 1059. See also

Young v. Anthony’s Fish Grottos, Inc., 830 F.2d 993, 1000 (9th

Cir. 1987). 

As noted, provisions of the CBA specifically refer to the

position that Plaintiff filled (foreman/Tree Trimmer Foreman) and

address issues such as termination for cause, unauthorized use of

company equipment, and grievance procedures. These issues

“inhere in the nature” of Plaintiff’s claim. Moreover,

Plaintiff’s contention that his oral agreement with Olson “did

not involve working conditions or working hours” and pertained

only to commuting to and from work contradicts the allegations in

Plaintiff’s Complaint. For example, Plaintiff states in his

 9 - OPINION AND ORDER

Case 3:14-cv-00922-BR Document 14 Filed 10/29/14 Page 9 of 12
Complaint that his “assigned duties required that he use a

truck,” and Defendant “required [Plaintiff] to provide his own

vehicle for work-related transportation.” Compl. at ¶ 5

(emphasis added). Plaintiff, nevertheless, emphasized at oral

argument that his agreement with Olson regarding the truck

“simply provided that Plaintiff could use a company vehicle for

commuting to and from work for the duration of his wife’s

disability . . . [, which] is not work-related.” Plaintiff,

however, does not explain how the use of his own truck is workrelated while the use of the company truck is not. In

particular, if the vehicle that Plaintiff was required to provide

for work-related transportation was only to be used for

Plaintiff’s commute, then a truck would not have been necessary

for the “work-related transportation” to which Plaintiff refers

in his Complaint. Thus, the only reasonable inference from the

record is that Plaintiff’s use of the company truck was both

work-related and contemplated under the CBA, and, as a result,

the Court must interpret the CBA.

Finally, the Court notes this matter appears to be grievable

under the terms of the CBA notwithstanding Plaintiff’s statements

about the Union’s failure to act after his discharge. The CBA

provides “[t]he employer shall . . . have no restrictions except

those specifically provided for in the Collective Bargaining

Agreement . . . in determining the need and number, as well as

 10 - OPINION AND ORDER

Case 3:14-cv-00922-BR Document 14 Filed 10/29/14 Page 10 of 12
the person, who will act as Foreman, . . . and in discharging

employees for proper cause.” CBA at 8 (emphasis added). Clearly

the CBA restricted the employer in its selection of a foreman and

in limiting discharge of employees only when “proper cause”

existed. 

Although Plaintiff alleges in his Motion that he “ask[ed] 

the union to file a grievance,” and the Union denied his

grievance request on the ground that the matter was outside of

the scope of the CBA, it is unclear whether Plaintiff ever

actually filed a grievance that the Union rejected. In his

Declaration (#13) in Support of his Motion to Remand Plaintiff

merely states he took his discharge slip to the Union office;

handed it to Robert Clarkson, business representative for Local

125; and said “This is bullshit. I had permission to use that

truck. Do something about this.” Although “[d]ischarged

employees who lack access to the grievance procedure under the

collective bargaining agreement cannot state a claim for breach

of the collective bargaining agreement, and federal courts

therefore lack jurisdiction over their section 301 claims[,]”

Plaintiff’s allegation about his statement to the Union office

and the Union’s alleged failure to file a grievance under the

circumstances is not sufficient to establish that Plaintiff

lacked access to the grievance procedure under the CBA. See

Young, 830 F.2d at 998 n.2 (citing Hollins v. Kaiser Found.

 11 - OPINION AND ORDER

Case 3:14-cv-00922-BR Document 14 Filed 10/29/14 Page 11 of 12
Hosps., 727 F.2d 823, 825 (9th Cir. 1984)). Likewise, the Court

concludes these assertions are insufficient to raise a doubt

about the propriety of Defendant’s removal of this action.

On this record, therefore, the Court concludes Plaintiff’s

claim is preempted by § 301 of the LMRA and, accordingly, removal

to this Court was proper. As a result, the Court denies

Plaintiff’s Motion to Remand.

CONCLUSION

For these reasons, the Court DENIES Plaintiff’s Motion (#5)

to Remand.

The Court directs the parties to confer about casemanagement deadlines and to submit no later than November 18,

2014, a jointly proposed case-management schedule. The Court

will then convene a Rule 16 Conference to set the schedule.

IT IS SO ORDERED.

DATED this 29th day of October, 2014.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

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