Antol v. Exposto

HH Finally, parties agree that both purpose for the fencing, a conviction is by pro adjudi- delegating erred to the long district court sentencing so as enhanced establishing the task of bation officer the commission of made before cation was by which Bennett will installment schedule offense. the current imposed part of his sentence. pay the fine Id. at 243. delegation improper is held that such We us to reconsid- Though has asked Bennett Graham, 356- States v. United by prior our Jefferson, we are bound er (3d Cir.1995), a case decided after Bennett final adjudication of Bennett’s decision. The directs, and as was sentenced. As Graham conviction occurred on Pennsylvania burglary agree, Bennett’s case must be The commission October court to the fine remanded for the district set occurred between firearms offenses repayment schedule. January September 1992 and Therefore, burglary convic- Bennett’s 1990 V. purposes for prior “conviction” tion is a agree we with the district while 924(e) enhancement. § sentence 924(e) here, applicable § is we will court judgment of sentence and re- reverse the IV. court for resen- mand this case the district is concedes remand government The opin- with this tencing proceedings consistent pressed final two issues required on the ion. Bennett. drug sentencing for his Bennett offense, applied the sen the district court base,” U.S.S.G.

tencing guideline for “cocaine 2D1.1, mandatory minimum sen § Bair; ANTOL; Wayne Gary L. S. Hubert years imprisonment in the stat of five tence Barzanti; Baker; Terry Gregory base,” F. of “cocaine penalizing ute distribution Betchy; Harry Casteel; 841(b)(l)(B)(iii). A. argues P. John Cet § Bennett 21 U.S.C. Colland; Teddy Cree; tin; sentencing guideline Arthur J. W. application of this Cumpston; Cunning E. Dennis Scott statutory provision was error be J. this Clyde Davis; ham; John DeFrances base” as J. § 2D1.1 defines “cocaine cause Dennis; Dzara; co; L. Louis A. “crack,” prove Ronald government failed Farrier; Franchi; Mario Wil here was Paul S. cocaine base involved Garnek, Jr.; Gallentine; L. Andrew oppose re liam government does crack. The Garrison, Garnek; Marvin H. sentencing hearing at Bernard J. a further mand for Gaydos, Jr.; Jr.; M. Abraham present Leonard permitted will be which both sides Georgetti; George; Robert Thomas A. base in whether the cocaine evidence on Gump; Guthrie; Gulley; L. Ed M. Fred was crack coc volved in Bennett’s offense Hancheck; Hall, Jr.; E. Steve court Samuel for the district aine.3 will remand We Hanna, Jr.; Donald G. John Nelson proceedings.4 to conduct such James, that, affirming opinion F.3d at held that recognize we are 4. Our 3. We because 924(e) eligibility only appropri- § en- sentence application Bennett’s of U.S.S.G. 2D1.1 is hancement, affirming the use of 180 and thus prepon- government proves ate where the guideline sentencing appropriate months as the range, base the evidence that the cocaine derance of may be unaffected Bennett’s sentence We did not was crack. involved the offense in his offense even if the cocaine base involved showing question the same reach the of whether However, determining not crack. —in may properly impose necessary before a court prop- government’s request response —the provided mandatory sentence minimum reduction, the court er amount of sentence under 21 U.S.C. of cocaine base distribution assumption that Ben- have been influenced its 841(b)(l)(B)(iii). govern- See id. Because Nothing we have said crack. nett distributed here is intended to might prove that the cocaine on remand ment concerning express any view crack, we need not ad- here was base involved grant- reduction that was the amount of sentence at this time. dress this latter issue greater should be ed or granted reduction whether prove government if fails to actually drug was crack. distributed here Henderson; Henry; Garrison, Jr.; Gay Columbus J. Rick Marvin H. Leonard dos, Jr.; Hoak; Hoak; George; Hlatky; Abraham M. William J. Thomas John Georgetti; Gulley; A. Hollis; Robert M. Hornick; Fred L. P. David F. Andrew Gump; Guthrie; Christopher Ed V. Haf Hornick; Floyd Thomas Robert F. enbrack*; Jr.; Hall, Samuel E. Steve Wally Jackson; Hutchinson; W. Earl C. Hancheck; Hanna, Jr.; John Nelson King; Kettering; E. John Walter G. Henderson; Donald G. Columbus J. Koss; Koast; Kovell; Mack Thomas J. A. Henry; Hlatky; Hoak; Rick John Wil Leshko, Jr.; Randy Lindich; J. John J. Hoak; Hollis; liam J. David F. Andrew Lowe; Joseph Lucas; K. F. Russell Hornick; Floyd Hornick; P. Thomas Floyd Macheska; George Marietta, J. Hutchinson; Wally Robert F. Jack W. Mattey, Jr.; Sr.; John C. Lester N. son; Kettering; King; Earl C. E. Walter MacMaster; McCune; D. Edward Carl Koast; Koss; John G. Thomas J. Mack Metz; Miller; Joseph T. Ronald Joe R. Kovell; Jr.; Leshko, Randy A. John J. J. Moser; Monica; Donald P. Robert W. Lindich; Lowe; Joseph Russell K. F. Myden; Nimpfer; A. William W. Jerome Lucas; Floyd Macheska; George J. Mar Novak; Novak; P. Leonard S. Michael ietta, Sr.; Mattey, Jr.; John C. Lester N. Pelehac; Opalenik; Peruzzi; Mark Paul McCune; McMaster; Edward D. Carl Peterson; Plishka; Wayne John J. Rick Joseph Metz; Miller; T. Ronald Joe R. Polke; Popernack, Jr.; Andrew Al ie G. Monica; Moser; Donald P. Robert W. Popielarcheck; Popielar R. bert J. John Myden; Nimpfer; William W. Jerome A. check; Popp; Rebar; P. Paul J. Wilfred Novak; Novak; Leonard S. Michael P. Wayne Reckard; Richard; Gary Duane Opalenik; Oravets, Jr.*; Fred Mark Gary Robinson; Sabo; Sever, E. A. John Pelehac; Peruzzi; Wayne Paul Peter J. IV; Joseph Shimko; R. Michael Shim son; Plishka; Polke; John Rickie An ko; Shipley; Timothy Allen R. Edward Popernack, Jr.; Popie drew G. Albert J. Sleasman; Jimmy Smith; D. Samuel A. larcheck; Popielarcheck; John R. Stajnrajh; Smithley; Popp; William J. Thomas Rebar; Wilfred P. Paul A. Duane Staszel; Steadman; Reckard; Wayne H. Richard; Gary R. Robert John A. Rob inson; Gary Larry Stevenson; Sabo; Stepp; Sever, IV; P. D. Ronald E. John Shimko; Joseph Shimko; Bernard Stull, Gary Swarow; P. Sr.; R. B. Albert S. C. Shimko; Ship Michael A. Edward Allen Tencer; Thomas; L. Robert Bernard F. ley; Timothy Sleasman; Jimmy R. D. Vance; Togger; George Robert L. W. Smith; Smith; Warren H. Samuel A. Vargo; Walko; Donald W. Dale R. Smithley; Stajnrajh; William J. Thomas Wyles; Stephen Yantko, Jr.; Richard Staszel; Steadman; R. Robert H. John Zelina Stepp; Larry Stevenson; P. D. Ronald Stull, Sr.; Gary Swarow; B. S. Albert C. ESPOSTO; Joseph Esposto; Orp Dominic Tencer; Thomas; Robert L. Bernard F. Esposto; Esposto; hia Richard M.W. Togger; Vance; George Robert L. W. Reed; Reed; Reed, Jr.; R.W. R.W. Gar Vargo; Heray Verna; A. Donald W. De, Corp.; Slovan; net Bon Inc. of Atlas Walko; Wyles; Dale R. Walter W. Fabco, White; Inc. Stephen Yantko, Jr.; Richard (*Per Zelina, Appellants 12(a), Rule Gary Wayne Bair; Antol; L. S. Hubert FRAP). Baker; Terry Barzanti; Gregory F. No. 95-3714. Betchy; Harry Casteel; P. A. John Cet tin; Colland; Arthur J. Thomas E. Appeals, Con United States Court of nors*; Teddy Cree; Cump W. Third Circuit. Dennis J. ston; Cunningham; Clyde E. Scott J. Argued Aug. 1996. Davis; Eugene Davis*; F. Harold T. Decided Nov. Davis*; DeFrancesco; John Ronald L. As Amended Jan.

Dennis; Dzara; A. Louis Paul Farri S. er; Franchi; Galla*; Mario Thomas A. Gallentine; Garnek, L.

William Andrew

Jr.; Garnek; Grove*; Bernard J. Dennis

1H3 Davidson, (argued) Healey pay (graduated, Claudia David- vacation regular, floating, Hornaek, P.C., PA, Pittsburgh, personal days) son & all of which were Appellants. guaranteed to and plaintiffs earned as part of employment their contract of with Mack, Miller, Joseph (argued), III Kurt A. [Shannopin].” PA, Thorp, Armstrong, Pittsburgh, Reed & Lacher, Lampl P. Robert O. John & Associ- Plaintiffs based Pennsyl- their case on the ates, PA, Pittsburgh, Quinlan, Rene D. Plow- Wage Payment vania and Collection man, Lewis, PA, Spiegel Pittsburgh, & Stan- 260.2, seq. (1992), Pa.Stat.Ann. et Levine, Roteman, ley Campbell E. Ronald B. sought liquidated damages attorneys’ Levine, PA, Pittsburgh, Appellees. & fees, unpaid wages. well as Attached to their is a schedule of the amounts MANSMANN, SCIRICA, Before: categories claimed in the “wages, various WEIS, Judges. Circuit vacation, vacation, regular graduated floating sick/personal.” OPINION OF THE COURT Defendants removed the case to federal WEIS, Judge. Circuit court, asserting that employ- the “contract of brought In Pennsylva- this suit under the plaintiffs’ ment” complaint referred to in the Wage Payment nia and Collection was, fact, bargaining agree- collective plaintiffs against assert claims individual ment between the United Mine Workers and corporate officers and shareholders for that, Shannopin therefore, the case was wages corporate employer. due from the really an action to enforce the terms Because the claims are based on a collective agreement under section 301 of the Labor bargaining agreement, we hold that the Management Act, Relations 29 U.S.C. Wage preempted by Collection Law is 185(a). removal, After defendants filed Management Relations Act and the asserting defenses, Answers various includ- National Accordingly, Labor Relations Act. ing nonliability under the Act and alle- we affirm the district court granting orders gations Shannopin that op- had continued in summary judgment dismissing the com- eration bankruptcy after the at the insistence plaint. plaintiffs’ representatives. union employees Plaintiffs are of the Shan- assigned The case magistrate was to a nopin Company who Coal were laid off on judge, who plaintiffs’ concluded that 24,1992. July Defendants are seven individ- required claims interpreting the collective corporations, uals and three described vari- bargaining agreement, and, such, as were stockholders, ously major owners, opera- as preempted by addition, section 301. In agents employer. tors and Shannopin magistrate judge plaintiffs found that had bankruptcy protection had filed for failed to exhaust their contractual remedies 81, 1991, Chapter September 11 on but re- under the bargaining agreement. operation July mained in until 1992. At He therefore summary recommended that time, plaintiffs were owed various sums judgment granted as to those defendants actually wages earned while the bank- appropriate who had filed motions and that ruptcy proceeding. the action be dismissed as to those defen- May plaintiffs In filed suit in joined dants who had not in the motions. He County, Court of Common Pleas of Greene plaintiffs’ also denied the motion to remand Pennsylvania and, for the due as the the action to the state court.1 The district stated, categories judge “several adopted the recommendations and en- Oiphia Esposto 1. Plaintiffs ing assert defendant claims for indemnification and contribution. jurisdiction had submitted to the pleading appears of the state This to be defensive in nature and, petition court before the removal was filed and we do not consider it to be such a substantial consequently, the removal step action was not unani- affirmative as to bar removal. Grubb v. mous, though Esposto joined Co., Donegal (4th evén later in the Mut. Ins. petition. Esposto Cir.1991); Praecipe Selvaggi had filed a Property to Join v. Prudential & Cos. court, Co., (E.D.Pa.1995). Additional Defendants in F.Supp. the state assert- Ins.

1H5 (1962) (differing interpretations would stimu orders without additional appropriate tered prolong disputes). late and labor National comment. policy particularly important is in the en contend that their appeal, plaintiffs On provisions, forcement of arbitration a com of the collective bar- independent claims are bargaining of most collective mon element is es- agreement, once gaining agreements. Lingle Norge, Magic Div. Of law, under state reference tablished Inc., 399, 410-11, Chef, agreement for calcula- (1988) (feder 1877, 1883-84, 100 L.Ed.2d 410 trigger preemption, damages does not tion of uniform, policy adju al certain labor fosters ruling discrimi- the district court’s and that disputes meaning dications of over the Moreover, employees. union nated bargaining agreements). point that even if plaintiffs out however, general principles, These draw jurisdiction au- does not applicable, removal and, no clear lines of demarcation conse tomatically follow. quence, preemption has section 301 been plaintiffs’ Defendants counter litigation years. fruitful over the source of the collective claims are based breach on surprisingly, Not case law has not been com agreement and that a determina- consistent, pletely particularly when state require wages and benefits due would tion of law affect the outcome. Franchise view, interpreting agreement. In their Tax Bd. v. Laborers Vacation Construction preempts the state statute federal law Trust, 1, 23, 103 2841, 2853, 463 U.S. S.Ct. 77 jurisdiction. have the federal courts (1983), that, L.Ed.2d 420 the Court observed § preemptive powerful “the force of 301 is so I. displace entirely any as to state cause of 301(a) action of between an provides: for viola- ‘for violation contracts Section “Suits employer organization.’ Any a and a labor employer between an tion of contracts law, purely such suit is a creature of federal employees in organization representing labor notwithstanding the fact that state would law in industry affecting commerce as defined in provide a cause of action the absence of any orga- chapter, this or between such labor § 301.” nizations, may in brought district jurisdiction having court of the United States However, preempt not all state law is respect amount parties, without Lingle, the Court concluded that an ed. controversy regard without to the citi- or banning employee could enforce a state law 185(a). parties.” 29 zenship of the U.S.C. though retaliatory discharge, even she was alleges agreement matter at hand a violation of by bargaining

The covered a collective the union and the contract to which for claims of provided that for arbitration party to this signatories, are but neither is discharge Lingle cause. held that without statutory language does not suit. courts could resolve matters of state law ready relations, provide a answer. involving labor-management but only were outside the “arbi if such matters only juris Although section 301 refers bargaining agree tral realm” of collective diction, authorizing interpreted it has been 411, 108 at 1884. ments. 486 U.S. at S.Ct. body courts to fashion a of common federal “ensures that federal Section 301 bargain enforcement of collective law the interpreting collec law will be the basis for ing agreements. Textile Workers Union v. tive-bargaining agreements.” Id. at 108 Mills, 448, 456, 353 Lincoln U.S. not S.Ct. at 1883. But does (1957). 912, 917, underly 1 L.Ed.2d 972 An may a state address the substantive benefits ing development for the of federal law reason adjudication provide of to workers “when interpre in this area is the need for uniform depend upon not the inter those does nego aid tation of contract terms to both Id. pretation agreements.” of such of collective tiation and the administration footnote, Lingle In a Court commented bargaining agreements. Local See Co., situations, although law that in Teamsters v. Lucas Flour 369 U.S. some 103-04, 571, 576-77, interpretation of the collec govern 593 7 L.Ed.2d S.Ct. Emphasizing meaning given a con to determine

tive subject underlying phrase tract or term must be damages, state law proper law, explained uniform federal Lueck claim, preempted, pre would otherwise “questions relating Hence, parties to what the to a of a law claim resolution state vail. agreement agreed, legal and what con interpretation labor upon both the depend could sequences were intended to flow from bargaining agreement and a the collective agreement, breaches of that must be re analysis that not turn law does separate state 12, 108 solved reference to uniform federal law.” n. agreement. Id. S.Ct. on the 211, 105 471 U.S. at S.Ct. at 1911. That rule n. 12. at 1885 questions “whether applies such arise plaintiffs’ nature of the “independent” The context of a suit for breach of contract or in a deciding Caterpillar, factor in claim was alleging liability in suit tort.” Id. The Williams, S.Ct. Inc. v. “Any observed: other result would Court (1987). There, employ- L.Ed.2d 318 par elevate form over substance and allow for breach contracts were ees sued requirements ties to evade the the collective scope of outside the relabeling their contract claims as claims for Thus, construction of agreement. tortious breach of contract.” Id. unnecessary' to agreement was establish the if especially The Court was concerned that Id. at 107 S.Ct. at 2431. plaintiffs’ case. state law were “allowed to determine the example dependent state law rem- An meaning adopting intended edy in International Bhd. Elec. occurred term, particular phrase contract all the Heckler, 851, 107 S.Ct. Workers recur,” evils addressed Lucas Flour would (1987). There, an em- 95 L.Ed.2d including right the uncertainties over “a ployee a common law tort suit state filed collect benefits under certain circumstances.” union, charging that it had court her at 1911. duty providing its safe failed to fulfill ultimately The Court decided because workplace, in as it assumed to conditions the contract, right the asserted derived from the bargaining agreement. collective do in the by obligation and was defined the contractual concluded that the claim Supreme The Court faith, good any attempt to assess preempted because courts would be re- was inevitably interpretation. involved contract interpret bargaining the collective quired to though may Even “the court state choose to duty agreement determine if such a had to ‘independent’ any define the tort as con- agree- if placed on the union and the been questions.... Congress tract has mandated scope nature and of that ment defined the govern meaning given that federal law the 861-62, at duty. at 107 S.Ct. 2167-68. Id. Lueck, 218-19, contract terms.” 471 U.S. at Hence, uniformity for federal “[t]he need at S.Ct. 1914-15. ... interpretation of contract terms man- the Bradshaw, Livadas v. 512 U.S. Allis-Chalmers, here, [plain- that dates (1994), presented S.Ct. 129 L.Ed.2d 93 evading pre-emp- from precluded tiff] is problem. another variation on In that by casting her claim as a tive force of 301 case, the Court concluded that federal labor tort action.” Id. at 107 S.Ct. state-law not in law was conflict with a state statute at 2168. imposed monetary penalty for each Corp. day passed employee’s In an Allis-Chalmers between dis 202, 105 (1985), charge receipt payments wages 85 L.Ed.2d 206 an and S.Ct. employee brought employee suit state court due. The had sued to recover equal wages days employer his and the insurer of a health and sum to the for the three disability plan elapsed discharge a collective bar established between her and her agreement. complaint alleged receipt employer. The of a check gaining from the The handling plaintiffs Supreme emphasized bad faith in the of the Court there was Reversing high penalty disability dispute claim. the state’s no over the amount of the to court, Supreme employee est States Court which the was entitled. “the United preempted. collective-bargain- held that claim mere need ‘to look’ to the Caterpillar concluded that the computation is no the Court damage ing agreement for plaintiffs’ could not be removed from the claim defeated suit hold the state law reason to at -, emphasized that the 114 S.Ct. at 2079. state court. The Court by § Id. 301.” “complete preemption”, applies to doctrine circumstances, conclud the Court In those directly rights founded on created “claims collective ed that the bargaining agreements, and also dispute between the was irrelevant ‘substantially dependent on claims that are any employee. Nor was there employer analysis collective-bargaining agree- of a the collective- to “indication Caterpillar, ment.’” their arbi agreement understood bargaining However, “well-pleaded at 2430. S.Ct. these state-law pledge to cover tration complaint” prevents rule removal to federal at -, Livadas, S.Ct. claims.” plaintiff present only if to court chooses Indeed, bargaining at raised state law claim wage that a direct claim agreement provided 398-99, solely Id. at as a defense. involving interpretation 2432-33; may Although preemption be a at tribunal or to other could be submitted defense, jurisdiction valid remains "with the empowered agency that was authorized at court. Id. at 107 S.Ct. state at -, 114 S.Ct. at 2080. it. Id. to enforce Congress also commented The Court payment The here demanded plaintiff present with had not intended wages on “contract.” This Court has based having “unappetizing choice” between Wage Act not create a held that the “does exercising law enforced her state [rjather, right compensation_ pro- it right into a collective her to enter statutory remedy vides a when clause. Id. at agreement with arbitration obligation pay breaches a contractual -, at 2075. 114 S.Ct. wages. earned The contract between the determining spe- parties governs whether glance From this some brief Kraft, cific are earned.” Weldon field, in this many Supreme opinions Court (3d Cir.1990). Inc., 793, 801 896 F.2d gen drawn. certain observations eral, squarely on a collective claims based “squarely on the This suit is based requiring analysis bargaining agreement or agree terms section 301 of its terms are Trucking Corp., Wheeler v. Graco ment.” courts. are removable to the federal See (3d Cir.1993), and the face 1885; Lingle, 486 U.S. at claim. Sec of the states federal 2166; Heckler, 859, at 107 at 481 U.S S.Ct. Management tion of the Labor Relations 301 1913; 215, 471 at 105 S.Ct. at provisions Act contains civil enforcement Bd., Tax 463 U.S. at 103 S.Ct. Franchise scope plaintiffs’ of which the claim within the independent of a 2853. Claims that are at Healthcare, Inc., 57 falls. Dukes v. U.S. they if bargaining agreement, even (3d Cir.1995); Goepel v. Na F.3d employers, employees and are are between Union, F.3d Mail Handlers tional Postal Livadas, 512 U.S. at not removable. See Cir.1994). (3d Although the individ -, 2078-79; Lingle, signatories to the ual are not defendants 1883; Caterpil 486 U.S. at 108 S.Ct. they may bargaining agreement, be lar, 394-95, at 2430-31. 107 S.Ct. to a 301 suit. Wilkes-Barre Publishing Newspaper Guild Co. II. (3d Wilkes-Barre, 647 F.2d Cir. pre- specific issues We now move 1981). addition, prop In as the district court Logically, inqui- in this case. the first sented erly plaintiffs’ alleged entitlement found “the jurisdiction. ry Plaintiffs contend must be disputed and compensation and benefits is from the ease was not removable that analyzing the cannot discerned without court. state agree terms of the collective solely preemption is not raised ment.” Cautioning that and re circumstances, are In these we concepts, as a defense. jurisdiction separate moval were properly rejected persuaded that the ease was re- We the district court’s conclusion “employer,” moved to the district court. word as used in the Act, Management Relation “has as meaning broad a [Wage as the defini Law] III. suggest,” tion quoted would and we with earlier, plaintiffs’ As noted suit was approval Indyk, Combs v. F.Supp. (W.D.Pa.1982). brought Pennsylvania terms of Ambrose, under the 727 F.2d at 284. Law, Combs, Wage provides stated, Collection which ap the district court “it any employee group employees may pears or corporate insulation of officers and wages payable. agents actions for liability institute 43 Pa. from for section 301 violations 260.9a(a) (1992). was, judgment part, Stat.Ann. If parallel basis for the insula plaintiffs, entered for the “the court ... tion of officers and shall members of local unions ... from attorneys’ allow costs of reasonable” for section 301 violations.” 554 260.9a(f). F.Supp. at citing fees. 43 Pa.Stat.Ann. Section Atkinson v. Sinclair Co., Refining “every person, 260.2a defines 1318, 1325, (1962) (union firm, association, 8 L.Ed.2d 462 partnership, mem corporation, exempt personal liability bers are from receiver other officer of a court of this union). Commonwealth, judgments against agent or officer of any of the employ- above-mentioned classes did, however, Ambrose hold the individual ing any person in this Commonwealth.” Wage officers liable under the even personally Plaintiffs seek to hold defendants though “imposing liability unpaid pension agents liable as or officers. persons benefits on who have not contractu- ally agreed payments to make the seems a occasions, On several this Court has re- harsh result.” 727 response F.2d at 283. In relationship viewed the between this statute argument to the defendants’ Wage labor law. The first time the preempted by Law was Manage- the Labor in Carpenters issue was raised was Health & ERISA, ment Relations Act panel Ambrose, Inc., Fund v. Kenneth R. Welfare said a brief footnote that “we find these (3d Cir.1983). ease, 727 F.2d 279 In that contentions to be without merit.” Id. at 282 pension unpaid fund sued for contributions n. 5. plan. due a health and welfare The com- plaint Pennsyl- However, Klein, cited both section 301 and the Solomon (3d vania Cir.1985), Law. The defendants situation, were the analogous corporate employer officers, and its two sole corporate we held that individual officers majority who were also the stockholders. were not liable under delinquent ERISA for We determined that the individual officers contributions corporate employ- owed were not liable under majority section 301 because jurisdic- er. The courts other there was insufficient evidence to conclude tions have held likewise.2 In McMahon v. they McDowell, (3d acting egos were Cir.1986), as alter 794 F.2d 100 we corporation. Id. at 284. held that Ambrose’s statement See, Cervoni, (2nd e.g., 2. principal Sasso v. 985 F.2d 49 corpora- shareholder is not liable for Cir.1993) (sole officer, director, and shareholder delinquent allegations tion's contributions absent contributions); employee not liable for trust fund personally parly plan that he was a Niedrich, Plumbers’ Pension Fund v. 891 F.2d or where there 1297, (7th Cir.1989) (no liability 1299 corpo for corporation ego); is evidence that was his alter ERISA); Blohorn, rate Rockney officers under v. Massachusetts Laborers’ Health & Fund Welfare 637, (8th Cir.1989) (corporate 877 F.2d 639-43 23, (1st Paving Corp., v. Starrett 845 F.2d 24-26 personally officers cannot be held liable under Cir.1988) (president and sole shareholder is not support piercing corpo ERISA unless facts the corporation’s delinquent pension liable for con- veil); Perez, 1079, Scarbrough rate v. 870 F.2d personally tributions unless facts show that he (6th Cir.1989) (owner-chief 1082-85 executive contributions); guarantee pension contracted to will not corporation's be held liable for delin Reed, Operating Eng'rs Pension Trust v. 726 F.2d quent pension contributions to fund unless facts 513, (9th Cir.1984) (owner corporation 515 veil); piercing corporate warrant the Internation ego not liable absent evidence of alter relation- Kracher, Inc., George al Bhd. v. Painters A. 856 ship). 1546, (D.C.Cir.1988) (CEO F.2d 1547-50

1119 Wage if the the district court to determine ERISA preempted Wage Law was . Supreme within the federal com- light in of the Law was “subsumed longer no valid was law.”). However, Ins. Metropolitan in mon as we have observed Court’s decisions Life 724, Massachusetts, here, 471 U.S. opinion, v. in' Ambrose Co. the second (1985) v. 2380, and Shaw 728 85 L.Ed.2d Management panel decided that the Labor 85, Lines, Inc., 103 Delta Air “employer” not as Relations definition of was (1983). 2890, 490 77 L.Ed.2d Wage in Law. It broad as that would efforts, despite seem that the Am- Wheeler’s Cir- Appeals for the Seventh The Court any brose footnote remains inscrutable. McNeil, 784 cuit National Metalcrafters Wheeler’s, event, holding we believe that (7th Cir.1986), commenting on F.2d 825 preemption keeping is more in with the Su- said, footnote, particulars “the the Ambrose preme. subsequent opinion in Court’s grounds of the contentions and footnote. which undermined the Ambrose fur- are inscrutable” and noted court’s action placed the case “under a that Lueck had ther opinions Pennsylvania within District court McNeil Court concluded shadow.” The approach preemp have differed their Payment Wage and Collection the Illinois Wage Compare tion Law situation. section 301. “The Act was Regal, F.Supp. Lawrence v. ease only the state-law claim this basis of (table) (3d (W.D.Pa.1993), 19 F.3d 643 aff'd company its contract is that broke Cir.1994) (section preempts claim pay of a certain amount. No grant vacation Law), corporate Wage officers under the pay required vacation law state 196, 197 Hoag, F.Supp. with Tener v. given.” pay if given or fixed the rate of such (Ambrose (W.D.Pa.1988) li imposes personal required Consequently, the claim Id. (ERISA claim)), ability corporate on officers bargaining agree- interpreting the collective Pa. Teamsters Fund Central Pension ment. (E.D.Pa.1986) Burten, F.Supp. Ambrose occasion to revisit the We had (non-resident subject personal officers not There, a former em- footnote Wheeler. Law) jurisdiction Wage and Amal corporate employer and an ployee sued his & Allied gamated Cotton Garment Indus. wages alleged to company officer Madera, Inc., 608 Fund. v. J.B.C. Co. of on be due. The action was based .both (W.D.Pa.1984) (personal lia F.Supp. Management Act and the Labor Relations bility imposed corporate on officers because Pennsylvania Wage Law. We held footnote). also In re Futura of Ambrose See barred because the section 301 suit was (E.D.Pa.1987) Inc., 69 B.R. Indus. arbitration plaintiff had failed to exhaust the (Ambrose approved personal of cor requirements in the collective Law); Wage In re porate under the officers Wage agreement. We also held Hinks, Mine Workers v. District United preempted because its basis Law claim was (W.D.Pa.1986) (National La 67 B.R. and, was the collective Law, Wage preempts Act but bor Relations therefore, exclusively by “governed fed- lack of Management Relations Act’s Wheeler, law.” 985 F.2d eral footnote).3 controlled Ambrose footnote, explained that “we In a Wheeler think footnote the statement in the Ambrose IV. [Wage to mean that the is best understood against individu plaintiffs’ suit is was, The as our definition of Law’s] corpora it, al officers and stockholders put ‘subsumed within prior opinion officers become tion. Under the n. 2. common law.’” Id. at 113-14 personally (In “employer” and are liable opinion, the first Ambrose (3d employer. That Cir.1981), obligations corporate the panel to of the had remanded apparently misled Pennsylvania Supe- arbitration and was unpersuaded by effect on We are the sepa- they by employees’ had Benjamin, the contention opinion Court's in Adam rior fact, when, they (1993), holding employment contracts in rate Pa.Super. A.2d agree- bargaining by were covered a collective Wage preempted. We note the Law was not Wage ment. did not address the Law's that the court law, by applied subject state if to would to vagaries

definition created of states be the of Act, Management the Labor Relations would example, although law. For employ- state an substantially scope the alter and enforcement Pennsylvania by ee in covered a collective typical bargaining agree- of the collective bargaining agreement by- would be free to ment. pass provisions by the suing arbitration the corporation Wage or the officers under of The extent the conflict between the two state, employee another in a different work- apparent most accom- statutes is under the ing very the same collective modating Wage of the Law with construction agreement would be limited to the arbitra- is, law, signatory corpo- federal that a process. tion This is the uniform en- employer deprived rate is not its of by contemplated forcement labor law. bargaining agreement, under a but collective effect, permitting Wage of the in use Law individually its officers would be liable. Un- scenario, disputes corporation agree- der this a would where collective be force, entitled to invoke the arbitration exclusive ments are undermines the uniformi- provisions agreement. possibili- That ty of "federal labor law a critical area— ty explored was not in Ambrose because the enforcing wage agreements, mandatory a corporation appeal did not deci- an adverse subject for bargaining. collective sion in the district court. earlier, emphasized noted As Lueck the However, Wage held that Wheeler the Law protect to provisions need and enforce the by Management the bargaining agreements where the Hence, employ- corporate Relations Act. the agreed had neutral arbitrator right by provided er’s to arbitration the col- instance, responsible, would in the first bargaining agreement lective remained ef- interpreting meaning for of the contract. holding Although fect. in favor anof officer effect, given Unless the “feder capacity, in his individual Wheeler did not to right al decide who tois resolve contract discuss in detail its reasons disputes will be lost.” however, it decision. On reflection is clear occurs, 105 S.Ct. at If that holding was correct. involving “claims pay, vacation overtime Wage If the Law were to ex construed assignments, work discharge unfair —in pand employer the definition in collective short, range disputes the whole tradition bargaining agreements corporate to include ally through resolved arbitration —could be officers, a number of adverse on fed effects brought by the first instance eral would labor law follow. In addition to 219-20, in tort rather than in contract.” Id. at removing long-standing insulation offi S.Ct. at 1915. personal corporate cers from debts, Solomon, 354, applica see 770 F.2d at accept plaintiffs’ Nor do we argument tion of Law definition would allow requires that Livadas a different result here. wage to corporate claimants sue officers There, the statutory penalty by was fixed Thus, employees bypass state court. could wages agreed to have been due on the date grievance procedures established discharge, multiplied the number of bargaining agreement, as well as days payment. before There was no need to enforcing federal time limits for refer the collective contrary 301. “A permit rule which an would penalty to calculate the and no one asserted employee completely individual sidestep that there was an interference with the arbi- grievance procedures available in favor of a process. present tral Livadas did not Republic lawsuit little to has commend it.” situation found in the case hand where Maddox, 650, 655, Corp. Steel employee bypass could arbitration resort- 614, 617, (1965). 13 L.Ed.2d580 Moreover, ing statute. Moreover, insists that are application here there uncertainties eligibility bargaining agreement covering types pay, about for the of vacation the activities of a corporation doing in a business number as the correct due in well amounts those

H21 matters, observed, disruptive upon negotia- Lueck influence both the instances. Such agree- tion and administration of collective In grist for the arbitration mill. proper are Steel, Republic ments.” Law, 85 addition, the the statute unlike Co., quoting S.Ct. at Lucas Flour 369 impose individual on Livadas did not U.S. at 82 S.Ct. at 576. employer’s agents. officers and the premise limi- Federal law rests on the also contend that Plaintiffs tation of certain afforded the states Wage Law amounts to discrimination the justified by having policy. is a uniform labor bargain against those covered persuaded procedures are for We resolv- employees ing agreements other can because ing wages, claims for vacation and benefits statute. pursue claims under the state See category fall within the of matters where Livadas, at -, 2075; 114 policy national controls. Metropolitan Life, 471 (Wagner penalize Act did not seek to at 2397 conclude, therefore, We unions). Although joining for workers Pennsylvania Wage Law is it to argument appeal, has some surface fails Management Relations Act and the compensating acknowledge the existence of judg National Labor Relations Act. The employ governs factors when federal law ment of the district court will be affirmed.4 White, Hanner Section ment. See Rebecca MANSMANN, Judge, dissenting. Circuit Preemption State Law Claims: A 301’s presents This case and close difficult Analysis, 41 Ala.L.Rev. 392 Model for question of whether 301 of the Labor (1990). Act, Management Relations 29 U.S.C. bargaining agreements fre- Collective 185(a), preempts employees’ § action quently provisions contain for favorable company un- the owners working keyA union sta- conditions. benefit paid wages, liquidated damages and attor- presence on tus often confers workers is the fees, neys permitted which is under “just discharge of a cause” standard or Pennsylvania Wage Payment and Collection griev- discipline. important, Even more (1992). 260.2, seq. 43 Pa.StatAnn. et process, ance and arbitration a standard fea- gleaned We from the that the for- agree- all ture of almost employees Shannopin Mining Compa- mer ments, offers union means for ny members operators, sued the owners and as well as quick inexpensive shareholders, resolution of contract major company be- Permitting employees disputes. to sue company bankruptcy has cause the is bypass in order to arbitration pay owing. state courts to them due and failed what is effectiveness, only employees’ not dilutes its but calls I Because believe WPCL question very respectfully into its Non-exclu- I dis- preempted, existence. claims are not inevitably majority’s opinion. sivity of “would exert a sent from the The Su- arbitration court, reviewing noting pro- bankruptcy It is worth that 11 U.S.C. 1113 after Zimmerman Hays, bargaining agreement concluded that a contractual arbitra- vides that a collective re- had to tion in a commercial contract Chapter mains in full force and effect in a 11 Drywall be enforced. In re P & G & Acoustical proceeding rejection approved by until is a bank- (Bankr.D.Me.1993). Corp., context, 704 156 B.R. ruptcy judge. Chapter In the arbitra- Brother, case, Chapter In a L.O. Koven & brought pursuant provision tion to a in a collec- Steelworkers, Inc. v. Local Union No. United subject is tive (3d Cir.1967), we discussed 381 F.2d stay bankruptcy. Ionosphere automatic Clubs, In re approval with an accommodation between arbi- (2d Cir.1990). 922 F.2d 984 bargain- brought pursuant tration to a collective cases, Chapter appears the rule to have In ing agreement bankruptcy proceedings. For bankruptcy discussion, been that a court had the discretion general Haggard, R. see Thomas permit arbitration. See Zimmerman v. Conti- Bankruptcy: Labor Arbitration and 4 Trekinto the Airlines, Inc., (3d Cir.1983). (1986). nental However, 712 F.2d 55 Bog, Loy.U.Chi.L.J. Serbonian case, sum, Chapter Hays in a later & Co. yet this Court has not decided whether Inc., Lynch, Chapter 1159-61 Merrill arbitration in a (3d Cir.1989), whether, emphasized preeminence discretionary we remains context policy Hays, given greater as a national and limited the it to be arbitration the rationale of bankruptcy discretion of a court to withhold re- effect. case, interesting Chapter In a one We need not decide that issue here. course arbitration. 1122 bargain- rights of under collective in Livadas v. Brad the decision

preme Court’s 2068, 107, ing agreements. shaw, 129 114 S.Ct. 512 U.S. (1994),guides my decision.

L.Ed.2d 93 Souter, writing for a unanimous Justice court, oppor- disagreed. Presented with the Livadas, held that Supreme the Court pro- tunity preempt to Labor Code California upon a state law action based employee’s an to granting protections terminated visions penalty payment from her a right to receive penalties against employees providing preempted under the employer was protections, for violation of those employers though penalty the was tacked LMRA even preempted the Cali- the Court instead held governed by a wages, were her which to policy refus- fornia Labor Commissioner’s of agreement. At issue bargaining collective ing provisions when the to enforce those required law which Livadas was California employees were covered a col- terminated wages immediately pay all due employers to containing an lective discharge, Labor Code upon employee’s an arbitration clause. 201; pay penalty for refusal to imposed § Relying upon prior its decisions Allis- 203; placed responsi- promptly, section 202, 471 U.S. 105 S.Ct. Chalmers enforcing provisions these on the bility for (1985), Lingle 85 L.Ed.2d 206 of Labor. After Karen Liva- Commissioner Inc., Chef, Norge, Magic Division wages pay to her the employer refused das’ of (1988), 108 S.Ct. 100 L.Ed.2d paid discharge, but them upon owed her 301 could not be the Court held section later, days penalty Livadas filed a claim few broadly preempt non-negotiable read to § Labor Code pursuant to California rights upon employees individual conferred responded to of Labor The Commissioner that it as a matter of state law stressed constru- request with a form letter Livadas’ legal character of the claim as “inde is the ing provision of the California another pendent” rights under the collective bar Code, barring § him Labor Code as agreement gaining that decides whether enforcing Livadas’ claim because her from may go of action forward. The state cause employment were terms and conditions meaning reiterated that “[w]hen Court bargaining agree- governed by a collective subject contract terms is not the of the dis containing an arbitration cause. The ment bargain fact that a collective pute, the bare § expressly provisions of Labor Code ing agreement consulted in the course will be adjudicat- precluded from the Commissioner litigation plainly require does not of state-law concerning interpretation any dispute ing Livadas, extinguished.” claim to be any bargaining collective application or at -, 2077, citing Lingle, at U.S. containing an arbitration clause.1 n. 12 n. to enforce refused After the Commissioner (“A bargaining agreement may, of claim, an Livadas commenced action Livadas’ course, contain information such as rate of alleging § pursuant U.S.C. helpful determining pay might ... policy non-enforcement the Commissioner’s damages prevailing in to which a worker by federal law because it was entitled.”). a state-law suit is section 7 of the abridged her Act, National Labor Relations Stat. Accordingly, Supreme concluded Court amended, § 29 U.S.C. 157. The Commis- principles that these foreclosed even a color- poli- argued that his non-enforcement argument sioner that Livadas’ claim under sec- able 229) (and cy required Labor Code tion 203 of the California Labor Code was law, namely preempted. The Court observed that be- LMRA, yond bargained preempt simple has read to need to refer to been which computing penalty, disputes' turning on for rates in state-court resolution of apply provides: trate. This section shall not to claims 1. Labor Code "Actions en- concerning interpreta- involving any dispute provisions of this article for the collec- force application unpaid wages due and claimed tion or tion of agree- regárd agreement containing arbitration such an individual be maintained without any private agreement to arbi- ment.” existence of

H23 Any employee group employees, agreement was irrele la- dispute organization party any between Livadas and her bor to vant to the whom distinguished Supreme employer. The Court type wages payable of is institute the situation Livadas’ situation from provided actions under this Act.

Plumbing, Heating Piping Employers and 260.9a(a), Benjamin, 43 P.A. Adam v. Howard, Northern Council of California 543, 1186, (1993), Pa.Super. 627 A.2d Cal.Rptr. Cal.App.3d denied, alloc. 537 Pa. 642 A.2d 482 (1975), sought employee an to have where — (1994), denied, U.S. -, cert. upon paid unpaid wage an claim based his (1994). right “The to L.Ed.2d interpretation that his collective wages plaintiffs’/em recover ‘earned’ higher wage. agreement entitled him to a ployees upon separation employment from is employee there asserted that under the The (rath statutory remedy supplements which bargaining agreement, he was enti supplants) er than a common law of pay of and cause tled to receive a foreman’s rate journeyman’s. Supreme Court not a The action for breach of contract.” Adam v. claim, however, observed, de “that sort Benjamin, Pennsyl 627 A.2d at 1192. This its existence from the collective bar rives right nonnegotiable applies vania is to accordingly, gaining agreement, and falls employees unionized and nonunionized alike. any customary understanding of arbi- within majority attempts distinguish The to Liva- Livadas, jurisdiction.” tral 512 U.S. at - Supreme das’ case from this because the case 6, 114 at 2072 n. 6 and 512 U.S. at n. S.Ct. , found that Court Livadas there was no - n. 114 S.Ct. at 2078-79 n. 20. dispute employer between Livadas and her Interestingly, ac the Court Livadas penalty over amount of the to which knowledged Appeals have not “Courts believe, Livadas was entitled. I do not how- entirely understanding uniform in their been ever, preemption that federal can turn on principles set down in application employer an whether or not chooses to dis- Lueek,” Livadas, Lingle found that but pute wages employee the amount an is nonpre-emption “in 301 is which entitled, law, under state to receive. I beyond preadventure” was “not a fit clear majority’s accept cannot distinction. To disagreements ... occasion resolve that, so mean do would could scope have arisen over the of our earlier utilize section 301 to avoid liabili- Livadas, decisions.” 512 U.S. at - n. n ty by raising dispute concerning at 2078 n. 18. wages any given case.2 amount of owed case, dispositive In this Livadas is here. Moreover, case, although in this the own- employees wages allegedly seek due er/operators of the mine contend that they prior two weeks worked them employees’ alleged compensa- entitlement lay-offs pay. as vacation Recov- their well in dispute tion and benefits is and cannot' be ery expressly provided of these interpretation of their col- discerned without Wage Payment by Pennsylvania’s and Collec- bargaining agreement, they have lective virtually tion Law which is identical to the specific provisions to convince me that failed law involved Livadas. Both California bargaining agreement are of the collective grant right compensation for state laws actually implicated here. In order to deter- wages, including pay. earned vacation Un- party’s mine whether a state law claim is der the WPCL: majority empowered to enforce it. 2. The also observes that there was not was authorized any Livadas, -, indication in Livadas thát "the 114 S.Ct. at 2079. bargaining agreement understood their provision The absence of a like in the collective pledge to cover these state-law arbitration claims,” my bargaining agreement here does not alter Majority Opinion p. because claims, employees’ based on conclusion that the collective there ex- nonnegotiable, secured nonwaivable pressly provided wage that a direct claim not employees, independently of involving state law to all exist interpretation of the could bargaining agreement. agency parties' be submitted to other tribunal or look to we see per COMPANY, depends the claim the resolution CARBON FUEL

whether interpreta- corporation, requires Virginia meaning, or on the West bargaining agreement. Plaintiff-Appellant, tion, of a collective 405-406, 108 S.Ct. at Lingle, Here, to determine the in order CORPORATION, corpo a Delaware USX employees wages owed the former amount of Co., ation; Mining Inc., a De U.S. Steel r Mining Company, a court need Shannopin Defendants-Appel corporation, laware appendix National only consult lees, NBCWA, Agreement, Coal Bituminous v. of the collective conclusion at the sets forth the remunera- which agreement, CORPORATION; Arch ARCH MINERAL daily are to receive on employees tion that Kentucky; Consolidation Minerals job classification. After hourly basis Company; Company, Ben Coal Coal Old appendix, the calculation of consulting the Party Third Defendants. unpaid wages will be based any amount COMPANY, a calendar, employer’s CARBON FUEL as well as upon a Virginia corporation, records, amount of time that West showing the Plaintiff-Appellee, have worked. Since employees individual employees’ these claims for the resolution v. depend upon the wages does not unpaid CORPORATION, corpo a Delaware USX require interpretation, of a meaning, or ration; Mining Co., Inc., De U.S. Steel agreement, their claims corporation, Defendants-Appel laware preempted here. should not be lants, pol- about federal labor comment One final v. employ- to note that the icy. important It is CORPORATION; ARCH MINERAL Con in this case could not receive involved ees Company; Ben solidation Coal Old Coal company from the duly their earned Party Company, Defendants-Ap Third process because the through the arbitration pellees, bankruptcy July after company was 19.92, day employees performed the last I am not concerned allow- work. Kentucky, Arch Minerals of right to ing employees to assert their state Party Third Defendant. wages would inter- paid for their earned process in the nor- the arbitration fere with COMPANY, a CARBON FUEL case, encourage employees to mal or would Virginia corporation, West grievance procedures sidestep available Plaintiff-Appellee, Consequently, a uniform favor of lawsuits. will not be policy in favor of arbitration labor corpo CORPORATION, a Delaware USX Pennsylvania procedure this disturbed ration; Mining Co., Inc., U.S. Steel a De employee the unfortunate permits which corporation, Defendants-Appel laware bankrupt company to seek recourse lees, bargain- the collective parties not covered through an additional means ing agreement in these unusual circumstances. of redress CORPORATION; MINERAL ARCH Old Party Company,

Ben Third Coal Defendants-Appellants, Kentucky; Consoli Arch Minerals of Company, Third dation Coal Party Defendants.

Case Details

Case Name: Antol v. Exposto

Court Name: Court of Appeals for the Third Circuit

Date Published: Nov 20, 1996

Citation: 100 F.3d 1111

Docket Number: 95-3714

Court Abbreviation: 3rd Cir.