A state law claim is preempted by NLRA sec. 301 if it is directly based on rights created by a collective bargaining agreement (“CBA”) or if, even though founded on state law granted rights, it is nevertheless substantially dependent on analysis of the CBA. If the claim may be resolved only by interpreting the CBA, it is preempted; whereas, if the court only needs to “look to the CBA” to resolve the claim, it is not preempted. Claims under an Oregon statute for wages “due and owing” were preempted because the court would have to interpret the CBA to decide what wages were due and owing under its terms. However, a claim that the employer failed to promptly pay health insurance premiums from sums it deducted from the worker’s pay, as permitted by the CBA, was not preempted since the state law requiring prompt payment turned on the calendar, not the CBA’s terms. A money had and received count based on the same non-payment of health insurance premiums was preempted as it depended on what the employer “in good conscience” could retain, a question requiring interpretation of the CBA.
Ninth Circuit Court of Appeals (Berzon, J.); August 9, 2016; 2016 WL 4191521