841 F. 2d 1129 - Lambert v. Redbud Community Hospital District G

No. 87-1557.

United States Court of Appeals, Ninth Circuit.

Before FLETCHER and FARRIS, Circuit Judges, and QUACKENBUSH, District Judge**.

MEMORANDUM*

Appellant, Terry Lambert, brought this action in state court against his former employer, appellee Safeway Stores, Inc. (Safeway), and others, for interference with Mr. Lambert's employment relationship (Count 1), emotional distress (Count 2), defamation (Count 3), and conspiracy (Count 4), among others, arising from his alleged wrongful termination for falsifying a medical return-to-work release form. The Safeway defendants removed the action to federal court under Section 301 of the Labor-Management Relations Act (LMRA), 29 U.S.C. Sec. 185(a), and Mr. Lambert challenges the removal as well as the district court's grant of summary judgment on Counts 1 through 4 in favor of the Safeway defendants. No cross-appeal was taken of the district court's remand as to other claims and defendants. We review under the de novo standard. Stallcop v. Kaiser Foundation Hospitals, 820 F.2d 1044, 1048 (9th Cir.1987).

Initially, we note the district court's order is reviewable under 28 U.S.C. Sec. 1291 since the remand followed "a substantive decision on the merits." Gallea v. United States, 779 F.2d 1403, 1404 (9th Cir.1986). See also Price v. PSA, 829 F.2d 871, 874 (9th Cir.1987).

Next, we agree with the district court's removal ruling. Even in the face of the well-pleaded complaint doctrine, Mr. Lambert's action properly was removed as arising under federal law since "[t]he heart" of his first state law claim, as alleged in the complaint, involves an interpretation of a collective bargaining agreement. Caterpillar, Inc. v. Williams, --- U.S. ----, 107 S.Ct. 2425, 2430 (1987). As such, it is preempted by Section 301 of the LMRA. Id.

As to the merits, the district court properly dismissed Count 1, and that ruling is AFFIRMED. Mr. Lambert's exclusive remedy for the claims in Count 1 was arbitration under the collective bargaining agreement (CBA), since he does not contend his union breached its duty of fair representation in handling his termination grievance. Ghebreselassie v. Coleman Sec. Serv., 829 F.2d 892 (9th Cir.1987).

Summary judgment disposition of Count 2 also was proper. The alleged emotional distress occasioned by the employer's phone call advising Mr. Lambert of his suspension was pursuant to the CBA provision mandating notice before suspension. It follows that Mr. Lambert's state law claim was preempted by Section 301 as "inextricably intertwined" with consideration of the CBA. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213 (1985). As with his first cause of action, his exclusive remedy was the grievance/arbitration process. Vaca v. Sipes, 386 U.S. 171, 181-84 (1967). The dismissal of Count 2 is AFFIRMED.

In contrast, Counts 3 and 4 allege facts referable to "state-law rights ... independent of" the terms of the CBA since these claims dealt with the publication of the allegedly defamatory treating physician's letter to a state body adjudicating unemployment benefits, a procedure unrelated to the interpretation of the CBA. Allis-Chalmers, 471 U.S. at 213; Tellez v. Pacific Gas & Elec. Co., 817 F.2d 536, 538-39 (9th Cir.1987).1 We therefore REVERSE as to Counts 3 and 4 of Mr. Lambert's complaint and remand to the district court to consider whether to exercise its discretion to decide these pendent state claims or whether, instead, to remand Counts 3 and 4 to the state court for disposition in Mr. Lambert's on-going state action. United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966); Anderson v. Allstate Ins. Co., 630 F.2d 677, 681 (9th Cir.1980).2

AFFIRMED IN PART; REVERSED IN PART.