Alvy R. Harper v. San Diego Transit Corporation San Diego Afl-Cio Bus Drivers Local Division 1309 of the Amalgamated Transit Union

764 F.2d 663 119 L.R.R.M. (BNA) 3161 , 103 Lab.Cas. P 11,619 Alvy R. HARPER, Plaintiff/Appellant, v. SAN DIEGO TRANSIT CORPORATION; San Diego AFL-CIO Bus Drivers Local Division 1309 of the Amalgamated Transit Union, Defendants/Appellees. No. 84-6205. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 8, 1985. Decided June 25, 1985. Diane R. King, San Diego, Cal., for plaintiff/appellant. Jon R. Betts, Richard D. Prochazka, San Diego, Cal., for defendants/appellees. Appeal from the United States District Court for the Southern District of California. Before KENNEDY, HUG and FERGUSON, Circuit Judges. FERGUSON, Circuit Judge: 1 Alvy R. Harper ("Harper") sued his former union, San Diego AFL-CIO Bus Drivers Local Division 1309 of the Amalgamated Transit Union ("Union"), and his former employer, San Diego Transit Corporation ("Corporation"), in state court over his discharge from employment. Defendants removed the complaint to federal court on the ground that federal labor law formed the basis for and preempted Harper's claims of breach. The district court then granted defendants' motions to dismiss or for summary judgment without leave to amend on the ground that…

Alvy R. Harper (“Harper”) sued his former union, San Diego AFL-CIO Bus Drivers Local Division 1309 of the Amalgamated Transit Union (“Union”), and his former employer, San Diego Transit Corporation (“Corporation”), in state court over his discharge from employment. Defendants removed the complaint to federal court on the ground that federal labor law formed the basis for and preempted Harper’s claims of breach. The district court then granted defendants’ motions to dismiss or for summary judgment without leave to amend on the ground that federal labor law preempted Harper’s claims, and the applicable six-month federal statute of limitations barred the action.

The Union and the Corporation argue that removal was proper, that all the claims are preempted by federal labor law, and that they were properly dismissed as time-barred. Harper contends that his claims are not preempted, not replaced by any federal remedy, and not removable. We agree with the Union and the Corporation and thus affirm the district court.

I. FACTS

Harper had worked for the Corporation for sixteen years at the time of his discharge. He was a member of the Union in good standing. His complaint alleges that a…

concurring:

I concur. If a state tort claim for wrongful discharge is encompassed also by the federal law pertaining to violation of the obligations of a collective bargaining agreement, federal law will control the case; and removal to a federal forum cannot be prevented merely by the structure of the state court pleadings. Olquin v. Consolidated Copper Co., 740 F.2d 1468, 1474 (9th Cir. 1984). Counsel must be alert to the consequence that in such cases the federal statute of limitations rule, not the limitations statute of the state, will be applicable. That is the case here.