Unpublished Disposition, 933 F.2d 1013 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 933 F.2d 1013 (9th Cir. 1991)

Mari BLOOM, Plaintiff-Appellant,v.UNIVERSAL CITY STUDIOS, Universal Television, and RandyCordray, Defendants-Appellees.

No. 90-55542.

United States Court of Appeals, Ninth Circuit.

Submitted May 7, 1991.* Decided May 15, 1991.

Before BEEZER, CYNTHIA HOLCOMB HALL and TROTT, Circuit Judges.


MEMORANDUM** 

Mari Bloom appeals the summary judgment granted in favor of the defendants. The district court held that Bloom's state law claims, based on an alleged breach of her employment agreement, were completely preempted by Sec. 301 of the Labor Management Relations Act (LMRA). The court further held that amending the complaint to state a federal claim under Sec. 301 would be futile. We affirm.

* Section 301 completely preempts state law breach-of-contract claims involving job positions covered by the collective bargaining agreement. Chmiel v. Beverly Wilshire Hotel Co., 873 F.2d 1283, 1285-86 (9th Cir. 1989). Bloom's position is covered by the CBA. Bloom does not dispute this fact directly, but attempts to avoid the issue by questioning whether the CBA between Universal and the union is valid.

Universal's evidence consisted of a copy of the old CBA between Universal and the union and the new, unsigned, CBA. The district court held that the lack of signatures was not material because Universal introduced evidence to show that the parties to the CBA have continued to treat the CBA as binding and effective. The Supreme Court has treated a CBA as viable under similar circumstances. See Retail Clerks Int'l Ass'n v. Lion Dry Goods, Inc., 369 U.S. 17, 24 n. 6 (1962) (acknowledging viability of CBA even though parties did not negotiate directly and did not conjoin signatures on one document).

Bloom argues that the existence and validity of the CBA are purely matters of conjecture, but she points to no evidence that would tend to disprove Universal's factual showing. A plaintiff may not rest upon mere allegations. See Fed. R. Civ. P. 56(e). By not producing significant probative evidence on this issue, Bloom has failed to demonstrate a material dispute of fact. See T.W. Elec. Svc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).

II

Bloom makes much of the fact that Universal Television was never a party to the CBA. From this fact Bloom concludes that the CBA does not apply to Universal Television. The district court rejected this argument because it is undisputed that Universal Television is merely a division of Universal Studios. Thus, whether Bloom was employed by the Studio or the Television division is immaterial; her employment contract is governed by the CBA. All of her state claims arising out of the contract breach--including state claims against Cordray for misrepresentation, bad faith and tortious interference with economic advantage--are preempted. See Bale v. General Tel. Co., 795 F.2d 775 (9th Cir. 1986), in which this court found similar claims preempted because:

In order to prove their fraud and negligent misrepresentation claims, [the plaintiffs] would be required to show that the terms of the collective bargaining agreement differed significantly from the individual employment contracts they believed they had made. Resolution of their state tort claims is therefore "substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract.

Id. at 780; see also Young v. Anthony's Fish Grottos, 830 F.2d 993, 1001 (9th Cir. 1987) (Sec. 301 preempts fraud and negligent misrepresentation claims based on oral representations made in connection with employment contract). It is of no avail that Bloom has named non-signatories as defendants. See Painting & Decorating Contractors Ass'n v. Painters & Decorators Joint Committee, 707 F.2d 1067, 1071 (9th Cir. 1983), cert. denied, 466 U.S. 927 (1984); see also Stallcop v. Kaiser Foundation Hospitals, 820 F.2d 1044, 1048 (9th Cir.) (preemptive force of Sec. 301 "is so powerful as to displace entirely any state cause of action for violation of a collective bargaining agreement"), cert. denied, 484 U.S. 986 (1987).

The district court also found preempted Bloom's claim under Sec. 17200 of the California Business and Professions Code. Bloom has alleged no facts to indicate that her Sec. 17200 claim is in any way distinguishable from her breach of contract claim. Renaming the breach of contract claim a violation of "public policy" under Sec. 17200 does not obviate the need to interpret the CBA and does not save the claim from preemption. Cf. Hubbard v. United Airlines, No. 90-15187, slip op. at 2540-41 (9th Cir. Mar. 8, 1991) (renaming violation of CBA as a violation of RICO does not save it from preemption by Railway Labor Act).

III

The district court denied leave to amend the complaint to state a federal claim under Sec. 301. The court concluded that amendment would be futile because Bloom has not complied with the requirement that she exhaust the grievance procedures under the CBA. See Truex v. Garrett Freightlines, 784 F.2d 1347, 1353 (9th Cir. 1985).

Bloom argues that the CBA is ambiguous, that the grievance procedures do not apply to her claims and that Universal failed to comply with certain "conditions precedent" to the enforcement of the grievance requirements. Bloom's bald assertion that the grievance procedures do not apply to her does not create a material dispute of fact. To the extent there is a dispute over the applicability of the grievance procedures, such a dispute only reinforces the conclusion that Bloom's claims are dependent upon analysis of the CBA and are, therefore, preempted by Sec. 301. See Lingle v. Norge Div. of Magic Chef, 486 U.S. 399, 410 (1988).

Bloom's state-law claims are based on an alleged breach of her employment agreement and are covered by the CBA. The district court correctly held that those claims were completely preempted by Sec. 301 of the LMRA. Bloom failed to exhaust the CBA's grievance procedures. We therefore affirm the court's refusal to allow Bloom to amend the complaint to state a federal claim under Sec. 301.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3