                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-25-2003

Briones v. Bon Secours Health
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3504




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                                                NOT PRECEDENTIAL


                 UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT


                                NO. 02-3504


 BLANDINA BRIONES; JESSE MANIOS; ELIA SERRANO; DONNA VISCARDI;
     FRED MEYER; JOYCE GRAHAM; ESSIE DALLAS; DORA BUTHER;
    VALENTINO CHIAVELLO; GABRIEL DEJESUS; MIGUEL MIRANDA;
           ELLA PARCHUF; ELIAS RAMOS; EFRAIN RIVERA;
                HECTOR VALENTIN; SYLVIA VANCE
                           Appellants

                                     v.

 *BON SECOURS HEALTH SYSTEM ; *BON SECOURS NEW JERSEY HEALTH
  SYSTEM, INC.; ST. FRANCIS HOSPITAL; *BON SECOURS & CANTERBURY
PARTNERSHIP FOR CARE, INC.; JOHN DOE (1-12); XYZ CORPORATIONS (1-12)

                        *Per Clerk’s Order of 10/8/02




               On Appeal From the United States District Court
                       For the District of New Jersey
                   (D.C. Civil Action No. 01-cv-04146)
                 District Judge: Honorable John C. Lifland


               Submitted Pursuant to Third Circuit LAR 34.1(a)
                               June 3, 2003

          BEFORE: ALITO, ROTH and STAPLETON, Circuit Judges

                       (Opinion Filed June 25, 2003 )
                               OPINION OF THE COURT




STAPLETON, Circuit Judge:

              Appellants Blandina Briones, Jesse M anios, Elia Serrano, Donna Viscardi,

Fred Meyer, Joyce Graham, Essie Dallas, Dora Buther, Valentino Chiavello, Gabriel

DeJesus, Miguel Miranda, Ella Parchuf, Elias Ramos, Efrain Rivera, Hector Valentin, and

Sylvia Vance (collectively, “Appellants”) brought suit in a New Jersey state court against

their former employers, Bon Secours Health System, Inc., Bon Secours New Jersey

Health System, Inc., St. Francis Hospital, Bon Secours & Canterbury Partnership for

Care, Inc., and certain other unnamed defendants (collectively, “Appellees”). Appellees

removed the case to federal court. Appellants moved to remand, asserting that they had

raised no federal question in their complaint and that there was no other basis for federal

jurisdiction. The District Court denied the motion to remand and, later, entered an order

dismissing their claims because they were preempted by federal law. Appellants now

appeal, challenging both the denial of their motion to remand and the dismissal of their

claims as preempted.

              As we will explain hereafter, it is clear that the District Court properly

dismissed the complaint on preemption grounds. The only debatable issue is whether the

District Court, without proceeding further, should have remanded to the state court for it

                                              2
to address Appellees’ federal preemption defenses and any remaining issues. We

conclude that its retention of jurisdiction was appropriate.

                                               I.

              In early 2001, Appellees transformed St. Francis Hospital, an acute care

facility, into a rehabilitation facility, resulting in layoffs. Appellees and the employees of

St. Francis, including Appellants, had negotiated, some years before, a Collective

Bargaining Agreement (“CBA”) that determined the terms and conditions of the

employment relationship, and remained in force in early 2001. This CBA also provided

procedures to be followed in the event of layoffs, including a process by which

employees, who had lost their positions in one hospital, would be able to “slot”

themselves into positions at another hospital based on seniority and other factors. When

the transformation from acute care to rehabilitation was announced, Appellees and union

representatives discussed the layoffs that would necessarily result and worked out a plan

for their execution. Several appellants were laid off as a result of this process; others

declined to participate in the slotting process and lost their jobs as a result.

              Thereafter, the union filed two unfair labor practice charges against

Appellees with the National Labor Relations Board (“NLRB”). The union alleged that the

decision to transform St. Francis, as opposed to another, non-union hospital under

Appellees’ control, was the result of anti-union bias and that Appellees had unlawfully

withdrawn recognition of the union as the representative for the employees of St. Francis



                                               3
hospital. The NLRB assumed jurisdiction over the complaints, stating that they alleged

violations of the National Labor Relations Act (“NLRA”), 29 U.S.C. § 151 et seq.

However, the NLRB found no merit to either claim and dismissed them.

              Appellants’ original state court complaint contained two counts. Count One

alleged a violation of Article I of the New Jersey Constitution which, inter alia,

guarantees the right of employees to organize and bargain collectively and “prohibits

dismissal of an employee because of his or her union activities.” Comite Organizador de

Trabajadores Agricolas (COTA) v. Molivelli, 552 A.2d 1003, 1008 (N.J. 1989). This

claim is based on Appellees’ decision to stop its acute care operation at St. Francis, a

union facility, rather than its acute care operation at Christ Hospital, a non-union facility.

Included in Count I was an allegation that this decision motivated by anti-union bias had

resulted in Appellees’ being offered continuing employment only if they were willing to

accept positions with Christ Hospital with lesser pay and benefits than provided in their

CBA and to “forfeit [other] entitlements available” under the CBA. SA at 009. Count

Two of the complaint asserted a state law “intentional infliction of severe emotional

distress” claim based on the same facts as Count One.

              Appellees removed the case to federal court, arguing that since appellants’

claims required the interpretation of the CBA, § 301 of the Labor Management Relations

Act (“LMRA”), 29 U.S.C. § 144, et seq., completely preempted their claims and

jurisdiction in the federal courts was proper. Appellants moved to remand the



                                               4
proceedings to state court, asserting that their complaint did not rely on or mention any

federal statute. The District Court denied their motion to remand, noting that Appellants

based their claim in part on their loss of rights under the CBA and that their claim could

not be adjudicated without a determination of the contours of those rights under that

agreement.

                 After the briefing on Appellees’ motion to remand but nine days before that

motion was denied by the court, Appellants amended their complaint to delete the

reference to the rights secured by the CBA.

                 Thereafter, Appellees moved to dismiss the complaint on the ground that §§

7 and 8 of the NLRA and the jurisdiction of the NLRB preempted Appellants’ claims.1



   1
       Section 7 of the NLRA, 29 U.S.C. § 157, provides, in relevant part:

          [e]mployees shall have the right to self-organization, to form, join, or assist
          labor organizations, to bargain collectively through representatives of their
          own choosing, and to engage in other concerted activities for the purpose of
          collective bargaining or other mutual aid or protection, and shall also have
          the right to refrain from any or all of such activities except to the extent that
          such right may be affected by an agreement requiring membership in a labor
          organization as a condition of employment as authorized in section 8(a)(3)
          [29 USCS § 158(a)(3)].


          Section 8, 29 U.S.C. § 158, provides, in relevant part:

          (a) Unfair labor practices by employer. It shall be an unfair labor practice
          for an employer--
          (1) to interfere with, restrain, or coerce employees in the exercise of the
          rights guaranteed in section 7 [29 USCS § 157];
          (2) to dominate or interfere with the formation or administration of any

                                                 5
This motion was granted, and this appeal followed.

                                            II.




      labor organization or contribute financial or other support to it: Provided,
      That subject to rules and regulations made and published by the Board
      pursuant to section 6 [29 USCS § 156], an employer shall not be prohibited
      from permitting employees to confer with him during working hours
      without loss of time or pay;
      (3) by discrimination in regard to hire or tenure of employment or any term
      or condition of employment to encourage or discourage membership in any
      labor organization: Provided, That nothing in this Act, or in any other
      statute of the United States, shall preclude an employer from making an
      agreement with a labor organization (not established, maintained, or
      assisted by an action defined in section 8(a) of this Act [this subsection] as
      an unfair labor practice) to require as a condition of employment
      membership therein on or after the thirtieth day following the beginning of
      such employment or the effective date of such agreement, whichever is the
      later, (I) if such labor organization is the representative of the employees as
      provided in section 9(a) [29 USCS § 159(a)], in the appropriate collective-
      bargaining unit covered by such agreement when made, and (ii) unless
      following an election held as provided in section 9(e) [9 USCS § 159(e)]
      within one year preceding the effective date of such agreement, the Board
      shall have certified that at least a majority of the employees eligible to vote
      in such election have voted to rescind the authority of such labor
      organization to make such an agreement: Provided further, That no
      employer shall justify any discrimination against an employee for
      nonmembership in a labor organization (A) if he has reasonable grounds for
      believing that such membership was not available to the employee on the
      same terms and conditions generally applicable to other members, or (B) if
      he has reasonable grounds for believing that membership was denied or
      terminated for reasons other than the failure of the employee to tender the
      periodic dues and the initiation fees uniformly required as a condition of
      acquiring or retaining membership;
      (4) to discharge or otherwise discriminate against an employee because he
      has filed charges or given testimony under this Act;
      (5) to refuse to bargain collectively with the representatives of his
      employees, subject to the provisions of section 9(a) [29 USCS § 159(a)].

                                             6
              Since “[r]emoval jurisdiction under section 1441 is . . . wholly derived from

original federal jurisdiction,” Roxbury Condo. Assoc., Inc. v. Anthony S. Cupo Agency,

316 F.3d 224, 227 (3d Cir. 2003), a court must, in determining the propriety of removal,

determine whether grounds for federal jurisdiction exist. Because the parties to this case

were not diverse, the District Court was required to determine whether federal question

jurisdiction existed.

              In general, under the “well-pleaded complaint” rule, a court looks to the

face of a complaint to determine whether a federal claim has been raised, because the

plaintiff is “master of the claim.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987).

For that reason, “a case may not be removed to federal court on the basis of a federal

defense, including the defense of preemption, even if the defense is anticipated in the

plaintiff’s complaint, and even if both parties concede that the federal defense is the only

question truly at issue.” Id. at 393. However, the doctrine of complete preemption

provides an exception to this rule: “[o]n occasion, the Court has concluded that the pre-

emptive force of a statute is so extraordinary that it converts an ordinary state common-

law complaint into one stating a federal claim for purposes of the well-pleaded complaint

rule.” Id. When that occurs, federal subject matter jurisdiction exists and removal is

proper. Section 3012 of the LMRA is such a statute. Id. If § 301 applies to a claim in the



   2
    Section 301 provides that “[s]uits for violation of contracts between an employer and
a labor organization representing employees in an industry affecting commerce as defined
in this Act, or between any such labor organizations, may be brought in any district court

                                              7
complaint, therefore, the claim is completely preempted and removal is proper. Id. at

394.

              Because of the general rule that the plaintiff is master of his claim, where a

well-pleaded state complaint contains only claims based on state law that are not

“completely preempted,” a federal court to which the case has been removed must remand

to the state court for a determination of the issues presented. Lingle v. Norge Div. of

Magic Chef, Inc., 486 U.S. 399 (1988). This may include the issue of whether there is a

meritorious preemption defense. Conversely, when the federal court determines that the

state claim is “completely preempted” by a federal law, it must decline to remand the case

to state court and resolve for itself the issues presented. See Franchise Tax Bd. v. Constr.

Laborers Vacation Trust, 463 U.S. 1, 23-24 (1983).

              Section 301 completely preempts claims if they “substantially depend upon

analysis of the terms of an agreement made between parties in a labor contract.” Angst v.

Mack Trucks, Inc., 969 F.2d 1530, 1536 (3d Cir. 1992) (quoting Allis Chalmers Corp. v.

Lueck, 471 U.S. 202, 220 (1985)). In light of these Supreme Court pronouncements, we

have held that there is complete preemption under § 301 where “the plaintiff, in its well-

pleaded complaint, . . . plead[s] an action that requires interpretation of [a] collective

bargaining agreement.” Berda v. CBS Inc., 881 F.2d 20, 25 (3d. Cir. 1989).




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.” 28 U.S.C. § 185(a).

                                               8
              By contrast, §§ 7 and 8 of the NLRA, the other provisions of federal law

relied upon by Appellees in support of their preemption argument, do not “completely

preempt” state law and thus provide no basis for removal jurisdiction. Ethridge v. Harbor

House Restaurant, 861 F.2d 1389, 1396-1401 (9th Cir. 1988). Cf. Caterpillar, 482 U.S.

at 397-98 (stating that, if the employer so desired, it could argue that §§ 7 and 8

preempted the claim to the state court upon remand).

              Though Appellants, after removal, amended their complaint, “the nature of

plaintiff’s claim must be evaluated, and the propriety of remand decided, on the basis of

the record as it stands at the time the petition for removal is filed.” Westmoreland Hosp.

Ass’n. v. Blue Cross, 605 F.2d 119, 123 (3d Cir. 1979). Thus, we “base decisions about

subject matter jurisdiction after removal on the plaintiff’s complaint as it existed at the

time that the defendant filed the removal petition.” Prince v. Rescorp Realty, 940 F.2d

1104, 1105 n.2 (7th Cir. 1991) (quotation and emphasis omitted).

              In their state court complaint, Appellants based their claims in part on their

loss of rights under the CBA. As a result, those claims could not be adjudicated without

interpreting the CBA and comparing the rights, benefits and entitlements there guaranteed

with Appellants’ positions after the allegedly discriminatory decision to transform St.

Francis. That fact alone is sufficient to implicate § 301 of the LMRA and to completely

preempt Appellants’ claims. Berda, 881 F.2d at 25. It necessarily follows that the

District Court properly decided to exercise jurisdiction and deny the motion to remand.



                                              9
                                             III.

              Having determined that the District Court properly exercised jurisdiction,

we now turn to its disposition of Appellants’ claims.

              “When an activity is arguably subject to § 7 or § 8 of the [NLRA], the

States as well as the federal courts must defer to the exclusive competence of the National

Labor Relations Board if the danger of state interference with national policy is to be

averted.” San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 245 (1959). “Pre-

emption . . . is designed to shield the system from conflicting regulation of conduct. It is

the conduct being regulated, not the formal description of governing legal standards, that

is the proper focus of concern.” Amalgamated Assoc. of Street, Elec. Railway & Motor

Coach Employees v. Lockridge, 403 U.S. 274, 292 (1971). “Garmon preemption protects

the exclusive jurisdiction of the NLRB over unfair labor practice proceedings;

accordingly, if a cause of action implicates protected concerted activity under section 7 of

the NLRA or conduct that would be prohibited as an unfair labor practice under section 8

of the NLRA, the cause of action is preempted.” Voilas v. General Motors Corp., 170

F.3d 367, 378 (3d Cir. 1999).

              The claims brought by Appellants are preempted by sections 7 & 8 of the

NLRA. First of all, “[i]f the [NLRB] decides, subject to appropriate federal judicial

review, that conduct is protected by § 7, or prohibited by § 8, then the matter is at an end,

and the States are ousted of all jurisdiction.” Garmon, 359 U.S. at 245. Such a decision



                                             10
has the same effect upon the jurisdiction of a federal court. Id. In this case, the NLRB

accepted jurisdiction over substantially similar claims brought by the union, and found

that while they alleged violations of § 8, there was no evidence of discrimination.

Appellants may not relitigate that determination in our court.

              Moreover, even if the NLRB had not exercised jurisdiction over the same

subject matter, it is clear that both Counts One and Two of Appellants’ complaint, at the

very least, “arguably implicate” the NLRA. Section 8(a)(3) prohibits discrimination

having the effect of encouraging or discouraging union membership or participation in

union activities. That is precisely the gravamen of Appellants’ claims. This is not a case

in which the behavior is of “peripheral concern” to the federal law. Voilas, 170 F.3d at

378-79. The allegations are of behavior that, if true, would violate core prohibitions of

the NLRA.

                                            IV.

              We will affirm the order of the district court dismissing the complaint.




                                            11
TO THE CLERK:

Please file the foregoing Not Precedential Opinion.




                                     /s/ Walter K. Stapleton
                                     Circuit Judge




                             12
