The opinion
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8 UNITED STATES DISTRICT COURT
9 NORTHERN DISTRICT OF CALIFORNIA
10 San Francisco Division
11 DARLENE C ALEMAN, Case No. 26-cv-02949-LB
12 Plaintiff, ORDER GRANTING MOTION TO
DISMISS
13 v.
Re: ECF No. 7
14 ASM GLOBAL AT MOSCONE CENTER,
15 Defendant.
16
17 INTRODUCTION
18 Plaintiff Darlene Aleman sued her employer, Defendant SMG, in state court on the ground that
19 it violated the terms of the Collective Bargaining Agreement (CBA) between SMG and her union
20 by (1) failing to conduct an investigation before taking disciplinary action against her, (2)
21 terminating her employment without just cause, and (3) failing to comply with the grievance
22 procedures set forth in the CBA.1 SMG removed the case to federal court on the ground that the
23 subject matter of the complaint is governed by the CBA, and thus the plaintiff’s claims for breach
24 of contract, wrongful termination, and failure to reinstate are preempted by § 301 of the Labor
25 Management Relations Act (LMRA).2 SMG then moved to dismiss the plaintiff’s claims because
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1 Compl. – ECF No. 1-2 at 10–17. Citations refer to material in the Electronic Case File (ECF);
pinpoint citations are to the ECF-generated page numbers at the top of documents.
1 they are (1) moot, as SMG and the union have settled the grievance and the plaintiff has returned
2 to work, and (2) preempted by § 301 of the LMRA.3 The plaintiff opposes the motion on the
3 grounds that her claims are (1) not moot, as her request for over a year’s salary remains a live
4 controversy, and (2) are not preempted by the LMRA.4
5 The motion is granted because the plaintiff’s claims are preempted by LMRA § 301.5
6
7 STATEMENT
8 SMG employs the plaintiff as a security officer at the Moscone Center.6 In August 2024, SMG
9 terminated the plaintiff’s employment after a manager reported that she was absent without leave
10 (AWOL) during a scheduled shift.7
11 The plaintiff is a member of the Service Employees International Union, United Service
12 Workers West, and her position is governed by a CBA between the union and SMG.8 The CBA
13 has the following provisions relevant to the plaintiff’s claims: it (1) authorizes the employer to
14 take disciplinary action when an employee is AWOL during a scheduled shift and prescribes a
15 disciplinary process, (2) provides “Criteria for Just Cause Discipline,” which include a fair and
16 objective investigation and parameters for determining reasonable discipline, and (3) establishes a
17 process for initiating and resolving grievances, which includes “Board of Adjustment” (BOA)
18
19
20
3 Mot. – ECF No. 7 at 9–12.
21 4 Opp’n – ECF No. 18 at 10–19.
22
5 The court can resolve the matter without oral argument. Civil L.R. 7-1(b). The parties consented to
magistrate-judge jurisdiction under 28 U.S.C. § 636(c)(1). Consents – ECF Nos. 13, 26.
23 6 Compl. – ECF No. 1-2 at 11 (¶ 5); Opp’n – ECF No. 18 at 6.
24
7 Compl. – ECF No. 1-2 at 12 (¶¶ 15–19), 14 (¶ 33).
8 Id. at 11 (¶ 5); CBA, Ex. A to Seder Decl. – ECF No. 7-1 at 5–44. The court judicially notices the
25 CBA. Sarmiento v. Sealy, Inc., 367 F. Supp. 3d 1131, 1142–43 (N.D. Cal. 2019) (“Courts regularly
take judicial notice of a CBA in evaluating a motion to dismiss.” (cleaned up)); Hernandez v. Sysco
26 Corp., No. 16-cv-06723-JSC, 2017 WL 1540652, at *2 (N.D. Cal. Apr. 28, 2017) (“A court may take
judicial notice of a CBA in evaluating a motion to dismiss.”); Johnson v. Sky Chefs, Inc., No. 11-cv
27 05619-LHK, 2012 WL 4483225, at *1 n.1 (N.D. Cal. Sep. 27, 2012) (“Courts routinely take judicial
1 meetings.9 The plaintiff alleges that SMG violated the CBA by (1) failing to conduct a timely
2 investigation before taking disciplinary action for being AWOL, as required by the CBA, (2)
3 terminating her employment without just cause, and (3) failing to comply with an allegedly
4 binding BOA agreement, which resulted in over a year of lost wages.10
5 The plaintiff’s union filed a grievance challenging the termination.11 Pursuant to the CBA’s
6 grievance procedures, a BOA was convened on October 29, 2024.12 The panel agreed to reinstate
7 the plaintiff effective immediately and re-classify the disciplinary action as a three-day suspension
8 but “[did] not agree to the made whole in all ways remedy.”13 The plaintiff alleges that although
9 the October 2024 BOA decision was final and binding, SMG did not reinstate her until after a
10 further BOA meeting was held in January 2026.14
11 After it received the October 2024 BOA agreement, SMG advised the union that under the
12 CBA, the mediator should have presented a non-binding advisory opinion regarding the grievance,
13 consistent with twenty years of practice and the CBA’s terms, thus disputing that the agreement was
14 enforceable.15 The union submitted a grievance on the plaintiff’s behalf, contending that the
15 October 29, 2024, agreement was binding.16 On January 15, 2025, the union and SMG met with the
16 mediator, who “did not arrive at an Advisory opinion on the issue.”17 On June 24, 2025, SMG and
17 union representatives met to discuss the plaintiff’s reinstatement, agreeing on key terms to be
18 memorialized in a settlement agreement. SMG circulated a draft agreement in August 2025.18 The
19 petitioner declined the settlement offer, and the union advanced the case to the BOA step. A
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9 CBA, Ex. A to Seder Decl. – ECF No. 7-1 at 34 (Appendix B, § 4 (discipline)), 36 (Appendix C
(Criteria for Just Cause Discipline)), 21–23 (Article XX (grievance process)).
22 10 Compl. – ECF No. 1-2 at 11–15 (¶¶ 7–43).
23
11 Id. at 14 (¶ 34).
12 Id. (¶ 35).
24
13 October 2024 BOA Agreement, Ex. A to Compl. – ECF No. 1-2 at 19.
25 14 Compl. – ECF No. 1-2 at 14–15 (¶¶ 37–43).
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15 Seder Decl. – ECF No. 7-1 at 2 (¶¶ 8–9).
16 Id. at 2–3 (¶ 10).
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17 Id. at 3 (¶ 11).
1 meeting was set for November 5, 2025, but was cancelled because the plaintiff refused to
2 participate. The meeting was then reset to January 9, 2026.19
3 Following the further BOA meeting on January 9, union and SMG representatives agreed to
4 (1) reinstate the plaintiff, (2) re-classify her discipline as a three-day suspension, (3) change the
5 reason for discipline from being AWOL to “job abandonment,” and (4) grant the plaintiff two
6 weeks of back pay “inclusive of the period between the original panel ruling and the date [she]
7 filed for workers’ compensation.”20 The plaintiff returned to work on March 25, 2026, and was
8 paid the two weeks of back pay pursuant to the January 2026 BOA agreement.21 The plaintiff
9 alleges that she has not been compensated for the nineteen months of lost wages she endured
10 during the disciplinary process.22 That “financial devastation,” she argues, “is the central injury at
11 the heart of this lawsuit.”23
12 STANDARD OF REVIEW
13 1. Rule 12(b)(1)
14 The jurisdiction of federal courts is limited to cases and controversies. Genesis Healthcare
15 Corp. v. Symczyk, 569 U.S. 66, 71 (2013). The plaintiff has the burden of establishing jurisdiction.
16 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); Farmers Ins. Exch. v.
17 Portage La Prairie Mut. Ins. Co., 907 F.2d 911, 912 (9th Cir. 1990). “A corollary to this case-or-
18 controversy requirement is that an actual controversy must be extant at all stages of review, not
19 merely at the time the complaint is filed.” Genesis, 569 U.S. at 71 (cleaned up). “A claim is moot
20 when the issues presented are no longer live or the parties lack a legally cognizable interest in the
21 outcome.” Tate v. Univ. Med. Ctr. of S. Nevada, 606 F.3d 631, 634 (9th Cir. 2010) (cleaned up).
22 The defendant may challenge lack of subject-matter jurisdiction under Rule 12(b)(1). A Rule
23 12(b)(1) challenge may be facial or factual. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039
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25 19 Id. (¶¶ 13–14).
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20 January 2026 BOA Agreement, Ex. B to Compl. – ECF No. 1-2 at 21.
21 Seder Decl. – ECF No. 7-1 at 3 (¶ 15).
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22 Compl. – ECF No. 1-2 at 15 (¶¶ 41–43).
1 (9th Cir. 2004). “A ‘facial’ attack asserts that a complaint’s allegations are themselves insufficient
2 to invoke jurisdiction, while a ‘factual’ attack asserts that the complaint’s allegations, though
3 adequate on their face to invoke jurisdiction, are untrue.” Courthouse News Serv. v. Planet, 750
4 F.3d 776, 780 n.3 (9th Cir. 2014). Under a facial attack, the court “accept[s] all allegations of fact
5 in the complaint as true and construe[s] them in the light most favorable to the plaintiffs.” Warren
6 v. Fox Fam. Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003).
7 In a factual attack, the court “need not presume the truthfulness of the plaintiff’s allegations”
8 and “may review evidence beyond the complaint without converting the motion to dismiss into a
9 motion for summary judgment.” Safe Air for Everyone, 373 F.3d at 1039.
10
11 2. Rule 12(b)(6)
12 A complaint must contain a short and plain statement of the claim showing that the pleader is
13 entitled to relief to give the defendant fair notice of the claim and the grounds upon which it rests.
14 Fed. R. Civ. P. 8(a); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). It must plead enough
15 facts to state a claim that is plausible on its face. Twombly, 550 U.S. at 570. Threadbare recitals of
16 the elements of a claim, supported by mere conclusory statements, do not suffice. Ashcroft v.
17 Iqbal, 556 U.S. 662, 678 (2009). The court accepts factual allegations as true and construes them
18 favorably to plaintiffs. Interpipe Contracting, Inc. v. Becerra, 898 F.3d 879, 886–87 (9th Cir.
19 2018). A complaint also must plead a cognizable legal theory. Woods v. U.S. Bank N.A., 831 F.3d
20 1159, 1162 (9th Cir. 2016).
21 ANALYSIS
22 1. Mootness
23 The first issue is whether the plaintiff’s claims are moot. The defendant contends that they are
24 because the parties have resolved the underlying dispute through the CBA’s grievance procedures,
25 and thus the court is unable to grant any meaningful relief.24 The plaintiff counters that her
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1 requested damages — nineteen months’ lost wages — present a live controversy that the court can
2 still meaningfully redress.25
3 The union resolved the parties’ disputes through the grievance procedures, which did not result
4 in compensation for the nineteen months of lost wages.26 When disputes are resolved through
5 binding processes, there is no live dispute for which the court could grant meaningful relief. Pitts
6 v. Terrible Herbst, Inc., 653 F.3d 1081, 1086 (9th Cir. 2011) (“A case becomes moot ‘when the
7 issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the
8 outcome’ of the litigation.”).
9 That said, to the extent that the plaintiff seeks damages for the period between the October
10 2024 decision and her March 2026 reinstatement, her injury is not necessarily moot. But the
11 defendant’s argument — the final settlement is final and binding on the plaintiff and forecloses
12 further recovery — goes to the merits of the claim, which is preempted under the LMRA.
13
14 2. LMRA Preemption
15 LMRA § 301 establishes federal jurisdiction for “[s]uits for violation of contracts between an
16 employer and a labor organization.” 29 U.S.C. § 185(a). It preempts any state claims based on
17 alleged violations of collective-bargaining agreements between employers and labor organizations.
18 Franchise Tax Bd. v. Constr. Laborers Vacation Tr., 463 U.S. 1, 23 (1983). The test for
19 preemption is whether resolution of the state claim requires the court to construe a provision of the
20 CBA. Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 405–06 (1988); Dent v. Nat’l
21 Football League, 902 F.3d 1109, 1116–17 (9th Cir. 2018). If a state claim is “founded directly on
22 rights created by collective-bargaining agreements” or is “substantially dependent on analysis of a
23 collective-bargaining agreement,” then § 301 preempts it. Caterpillar Inc. v. Williams, 482 U.S.
24 386, 394 (1987) (cleaned up). But “the bare fact that a collective-bargaining agreement will be
25 consulted in the course of state-law litigation plainly does not require the claim to be
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25 Opp’n – ECF No. 18 at 10–12.
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1 extinguished.” Livadas v. Bradshaw, 512 U.S. 107, 124 (1994). “The plaintiff’s claim is the
2 touchstone for this analysis; the need to interpret the CBA must inhere in the nature of the
3 plaintiff’s claim. If the claim is plainly based on state law, § 301 preemption is not mandated
4 simply because the defendant refers to the CBA in mounting a defense.” Cramer v. Consol.
5 Freightways Inc., 255 F.3d 683, 691 (9th Cir. 2001) (en banc); Dent, 902 F.3d at 1116 (“The
6 plaintiff’s claim is the touchstone of the § 301 analysis.” (cleaned up)).
7 The preemption inquiry thus has two parts. First, a court must determine “whether the asserted
8 cause of action involves a right conferred upon an employee by virtue of state law, not by a CBA.
9 If the right exists solely as a result of the CBA, then the claim is preempted.” Burnside v. Kiewit
10 Pac. Corp., 491 F.3d 1053, 1059–60 (9th Cir. 2007). Second, if the right underlying the state
11 claim exists independently of the CBA, then the court considers whether the right is “substantially
12 dependent on analysis of a collective-bargaining agreement.” Id. at 1059 (cleaned up). In short, the
13 plaintiff’s claims are preempted where (1) the relief requested “involves a right [that] exists solely
14 as a result of the CBA,” or (2) the right asserted under state law “is substantially dependent on
15 analysis of [the CBA].” Curtis v. Irwin Indus., Inc., 913 F.3d 1146, 1152–53 (9th Cir. 2019).
16 Here, the claims at issue are (1) breach of contract, (2) wrongful termination, and (3) “failure
17 to reinstate/failure to comply with final and binding decision.” The defendant moves to dismiss the
18 plaintiff’s claims on the grounds that they are preempted by LMRA § 301.27 The court grants the
19 motion because the claims seek to enforce rights that exist solely as a result of the CBA and are
20 therefore subject to LMRA preemption.
21 The plaintiff’s breach of contract claim rests on her allegations that the defendant “fail[ed] to
22 conduct a fair investigation, violat[ed] mandatory timelines, appl[ied] discipline unequally,
23 ignor[ed] [her] clean record, and fail[ed] to comply with the final and binding October 29, 2024
24 Board of Adjustment decision.”28 She is alleging violations of rights that exist solely as a result of
25 the CBA, which includes relevant provisions governing discipline, termination, just cause, and the
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27 Mot. – ECF No. 7 at 10–12.
1 grievance process.29 The plaintiff’s breach of contract claim is therefore preempted by LMRA
2 § 301. Curtis, 913 F.3d at 1152–53.
3 As for wrongful termination, the plaintiff claims that the defendant “terminated [her] without
4 just cause, in violation of fundamental public policies favoring fair labor practices and
5 enforcement of collective bargaining agreements,” and that the defendant’s “stated reasons were
6 pre-textual.”30 A claim for wrongful discharge in violation of public policy is preempted by § 301
7 of the LMRA where it is (1) “not based on any genuine state public policy” or (2) “bound up with
8 interpretation of the collective bargaining agreement and furthers no state policy independent of
9 the employment relationship.” Young v. Anthony’s Fish Grottos, Inc., 830 F.2d 993, 1001–02 (9th
10 Cir. 1987) (cleaned up).
11 Here, the plaintiff does not plead any factual allegations supporting a claim for an independent
12 violation of state law or policy. Nor does she explain what the underlying reason for her
13 termination actually was, assuming the stated reasons were pretextual. Rather, the allegedly
14 wrongful conduct is the same conduct that underpins her other two claims, and concerns rights
15 that exist solely as a result of the CBA. As such, the plaintiff’s wrongful-termination claim is
16 preempted. Curtis, 913 F.3d at 1152; see also Reagans v. AlliedBarton Sec. Servs., LLC, No. 12-
17 CV-2190 YGR, 2012 WL 2976766, at *5 (N.D. Cal. July 19, 2012) (wrongful termination
18 concerning discipline preempted by LMRA § 301 where the plaintiff did not plead a public policy
19 independent of the employment relationship and the CBA included provisions that governed the
20 conduct in question).
21 The plaintiff’s third claim for “failure to reinstate” is based on alleged violations of the CBA’s
22 grievance process: the October 2024 BOA decision was binding, and her employer failed to
23 comply with it.31 As the defendant argues, the plaintiff’s “rights pursuant to that grievance
24 process, namely, reinstatement under the BOA agreement, derive directly from the CBA and the
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26 29 See CBA, Ex. A to Seder Decl. – ECF No. 7-1 at 21–23 (Article XX), 34–36 (Appendix B, §§ 4, 6;
Appendix C).
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30 Compl. – ECF No. 1-2 at 16 (¶¶ 48–49).
1 grievance process that led to the putative agreement.”32 Moreover, deciding whether the BOA
2 Agreement was binding would require the court to interpret the CBA’s grievance procedures. The
3 plaintiff’s third claim is preempted under both prongs of the Curtis test. 913 F.3d at 1152–53.
4
5 3. Leave to Amend
6 The last issue is whether the plaintiff should be granted leave to amend her complaint to bring a
7 hybrid § 301 claim against the union. The defendant argues that the plaintiff cannot sidestep LMRA
8 preemption, plausibly plead that the Union breached its duty of fair representation under LMRA
9 § 301, or bring a timely § 301 claim, which is barred by the applicable six-month statute of
10 limitations.33 The plaintiff contends that she has already brought a viable § 301 claim.34
11 Liberally construing the complaint, it attempts to enforce a § 301 claim to enforce the October
12 2024 decision and to recover damages from SMG’s refusal to honor it. An employee may sue to
13 enforce a final and binding grievance resolution. But when, as here, the union (the employee’s
14 exclusive bargaining representative) settled the grievance, the employee is bound by that resolution
15 unless she shows the union breached its duty of fair representation. This is a hybrid § 301/fair-
16 representation claim: the plaintiff must plead that the employer breached the CBA and that the
17 union breached its duty of fair representation. A union breaches its duty of fair representation when
18 its conduct is “arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S. 171, 190 (1967). If
19 the conduct involves judgment — such as whether to settle or drop a grievance — the plaintiff must
20 show bad faith or discrimination, not mere negligence. Beck v. United Food & Com. Workers
21 Union, Loc. 99, 506 F.3d 874, 880 (9th Cir. 2007).
22 The applicable statute of limitations for a claim brought under LMRA § 301 is six months
23 from the date “the employee discovers or in the exercise of reasonable diligence should have
24 discovered[] the acts constituting the alleged violation.” Barnes v. Line Drivers, Loc. Pickup &
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26 32 Mot. – ECF No. 7 at 12.
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33 Id. (citing Bliesner v. Commc’n Workers of Am., 464 F.3d 910, 914 (9th Cir. 2006) and DelCostello
v. Int’l Bhd. of Teamsters, 462 U.S. 151, 169 (1983)).
1 || Delivery Loc. 81,232 F. Supp. 2d 1138, 1142 (D. Or. 2001); see also DelCostello v. Int’l Bhd. of
2 Teamsters, 462 U.S. 151, 169 (1983).
3 The complaint pleads SMG’s conduct in detail but, as to the union, alleges only that she did
4 || not authorize it to settle her grievance.*° Lack of authorization is not enough because a union may
5 settle a member’s grievance without her consent. Vaca, 386 U.S. at 191-92. The two issues are (1)
6 || whether the plaintiff can plausibly plead a fair-representation breach, given that the union’s
7 || settlement secured her reinstatement and some back pay, and (2) timeliness. For timeliness, a
8 || hybrid claim does not accrue until the employee knew or should have known of the union’s
9 || breach. Galindo v. Stoody Co., 793 F.2d 1502, 1509 (9th Cir. 1986). The grievance process
10 || continued until January 2026. The complaint refers to the plaintiffs issues with the union’s
11 conduct.*° The issues are close but whether a claim is futile is better resolved on a complete
12 || pleading, given that leave to amend is granted liberally. Fed. R. Civ. P. 15(a); Sonoma Cnty. Ass’n
13 of Retired Emps. v. Sonoma County, 708 F.3d 1109, 1117-18 (9th Cir. 2013).
14
15 CONCLUSION
a 16 The motion to dismiss is granted. The plaintiff must file an amended complaint by July 13,
2 17 || 2026, and must attach a blackline compare (in color) of the amended complaint against the current
Z 18 complaint. (This is accomplished easily in Microsoft Word via the Compare function.)
19 This resolves ECF No. 7.
20 IT IS SO ORDERED.
21 Dated: June 16, 2026 LAE
22
LAUREL BEELER
23 United States Magistrate Judge
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28 |} °° Id. at 14-15 (44 37-40).