Page 73 - RICHERT VS. SORKIN THEFT OF THE AMERICAN PRESIDENT AND THE WEST WING

PI-AINTIFFS CONCEDE T}IAT THEIR ACTION AGAINST THE WGA
I-AW CI-AIMS ARE PREEMPTED.
Thc WGA defendants showed in their moving papers that plaintiffs' state law claims against the WGA defendants for fraud and conspiracy are preempted by $ 301 ofthe l-abor Managemcnt Relations Act ("LMRA"),29 U.S.C A 185 [seeWGAMot.at8-lI]. Plaintiffs' Opposition ("Opposition" or "Opp.") concedes the basis for LMRA $ 301 jurisdiction, without acknowledging the consequences of that concession.
Plaintiffs admit that the claim against the WGA defendants could be framed as a federal causc of action {or breach of the duty of fair representation ("DFR"):
"The claims against the WGA and Burmeister (qig) should be amended to also allege violations of the duty of fail representation undcr the National l-abor Rclations Act. Since the issue has been raised pre-emptively by the WGA and Burmeister (!i9) plaintifls respond thcreto to facilitate efficiency in dealing with as many o[ the del'endants' arguments as possible prior to further amendment. This new claim, i{ {ound to be sustainable, also creates a new basis for federal jurisdiction."
Opp. at 16.' The proposed amendment is not based on new facts. Rather, plaintiffs contend that the facts alrcady alleged ir the Amended Complaint state a viable DFR action against the WCA defendants.
The quoted passage resolves the preemption issue. Having acknowledged that the allegcd miscorduct by the WGA defendants is covered by $ 301, plaintilfs may not pursue state
I Plaintiffs' refercnce to the National Labor Relations Act ("NLR {") is inacourate. The DFR is rooted in LMRA $ 301, which was added as part of the Taft-Hartley amendments to the NLRA enacted in 194'7. See Vaca v. Sipes,388 U.S. 171, 1,82-83 (196'1). Section 301 grants federal courts j urisdiction to hear suits for violation ofcollective bargaining agreements, and for suits agairst unions for breach oi the DFR. 1d We discuss in Section Il below whether plaintifis should be granted leave to pursue a DFR action.
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