Rodney Gregory, Individually and on Behalf of All Others Similarly Situated v. Scie, Llc, Dba Epsg Management Services, Lp

dissenting:

I respectfully dissent. Determining whether California law applies to Gregory requires interpreting the collective bargaining agreement, which triggers preemption. Thus, I would affirm the district court.

California Labor Code Section 510, the section under which Gregory brings the claims in question, expressly does not apply to employees “working pursuant to a collective bargaining agreement pursuant to Section 514.” 1 Section 514 sets forth the precise characteristics of collective bargaining agreements that place employees outside the reach of Section 510. The collective bargaining agreement must: (1) “expressly provide[ ] for the wages, hours of work, and working conditions of employees”; and it must (2) “provide[ ] premium wage rates for all overtime hours worked and a regular hourly rate of pay for those employees of not less than 30 percent more than the state minimum wage.” 2

On its face, the collective bargaining agreement between SCIE and Gregory’s union appears to meet Section 514’s requirements. It expressly provides for “wages, hours of work, and working conditions.” In addition, it provides wage rates significantly greater than 30% over California’s…

Rodney Gregory brought this action against SCIE, LLC, dba EPSG Management Services, LP (“SCIE”), in state court under Section 1194 of the California Labor Code, which entitles “any employee receiving less than ... the legal overtime compensation applicable to the employee ... to recover ... the unpaid balance of the full amount.” He alleged he was not paid for overtime work performed for SCIE at premium wage rates in violation of California Labor Code Section 510 and Wage Orders 11 and 12. SCIE removed the action to the district court, alleging that the claims arise under § 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185 (a), and are, therefore, within the jurisdiction of the federal district court. 1

The district court dismissed the action with prejudice on the ground that four of Gregory’s causes of action are preempted by § 301; it remanded a fifth cause of action for continuing wages under California Labor Code Section 203 to the Superi- or Court. Gregory appeals. ■ We have jurisdiction over the appeal under 28 U.S.C. § 1291 and vacate and remand with directions to remand to the Superior Court.

FACTUAL BACKGROUND

Gregory is employed in the entertainment…

317 F.3d 1050 Rodney GREGORY, individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. SCIE, LLC, dba EPSG Management Services, LP, Defendant-Appellee. No. 01-57241. United States Court of Appeals, Ninth Circuit. Argued and Submitted December 2, 2002. Filed January 27, 2003. Alan Harris, Harris & Ruble, Los Angeles, CA, and Maxwell M. Blecher, Los Angeles, CA, for the plaintiff-appellant. Rex S. Heinke, Akin, Gump, Strauss, Hauer & Feld, LLP, Los Angeles, CA, for the defendant-appellee. Appeal from the United States District Court for the Central District of California; Ronald S.W. Lew, District Judge, Presiding. D.C. No. CV-01-08591-RSWL. Before: D.W. NELSON and T.G. NELSON, Circuit Judges, and SCHWARZER, * Senior District Judge. SCHWARZER, Senior District Judge. Rodney Gregory brought this action against SCIE, LLC, dba EPSG Management Services, LP ("SCIE"), in state court under Section 1194 of the California Labor Code, which entitles "any employee receiving less than ... the legal overtime compensation applicable to the employee ... to recover ... the unpaid balance of the full amount." He alleged he was not paid for overtime work performed…