                                                                              FILED
                           NOT FOR PUBLICATION
                                                                              MAR 18 2020
                    UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ERIC COOPER, individually and on                 No.   19-35239
behalf of all similarly situated,
                                                 D.C. No. 3:18-cv-01561-HZ
              Plaintiff-Appellant,

 v.                                              MEMORANDUM*

APPLIED INTEGRATED
TECHNOLOGIES, INC., a foreign
corporation,

              Defendant-Appellee.


                   Appeal from the United States District Court
                            for the District of Oregon
                   Marco A. Hernandez, District Judge, Presiding

                            Submitted March 4, 2020**
                                Portland, Oregon

Before: FERNANDEZ, GRABER, and PAEZ, Circuit Judges.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Eric Cooper appeals from the district court’s order (a) denying his motion to

remand the case to state court and (b) granting Applied Integrated Technologies,

Inc.’s (“AIT”) motion to dismiss. The district court determined that it had subject

matter jurisdiction because § 301 of the Labor Management Relations Act1

preempted Cooper’s claim. See McCray v. Marriott Hotel Servs., Inc., 902 F.3d

1005, 1009 (9th Cir. 2018). We affirm.

      When, as here, “a collective bargaining agreement otherwise provides for the

payment of wages upon termination of employment,” the Oregon statute upon

which Cooper based his allegation of late payment does not apply. Or. Rev. Stat.

§ 652.140(5); cf. Smoldt v. Henkels & McCoy, Inc., 53 P.3d 443, 446 (Or. 2002).

The collective bargaining agreement2 provides that vacation pay3 is due “[a]t the

time of termination of employment,” while the statute provides that “all wages” are

due “not later than the end of the first business day after . . . termination.” Or. Rev.

Stat. § 652.140(1); see Cramblit v. Diamond B Constructors, 105 P.3d 906, 911


      1
      Labor Management Relations Act, 1947, 29 U.S.C. §§ 141–144, 167,
171–175, 175a, 176–183, 185–187.
      2
       Agreement Between Applied Integrated Technologies, Inc. And Paragon
Systems, Inc. And The United Government Security Officers of America,
International Union And Its Local 371 (August 1, 2017 – July 31, 2018) (“CBA”).
      3
        CBA § 10.4. Oregon defines “‘wages’” to include “vacation pay.” State ex
rel. Nilsen v. Or. State Motor Ass’n, 432 P.2d 512, 514 (Or. 1967).

                                           2
(Or. Ct. App. 2005). By its language, the statutory exception is not limited to

CBAs that alter the payment of “all wages,” as opposed to some wages. Cf. United

States v. McDuffy, 890 F.3d 796, 802 (9th Cir. 2018), cert. denied, __ U.S. __, 139

S. Ct. 845, 202 L. Ed. 2d 612 (2019); Tang v. Reno, 77 F.3d 1194, 1197 (9th Cir.

1996); Emerald People’s Util. Dist. v. Pac. Power & Light Co., 729 P.2d 552,

559–60 (Or. 1986). Thus, the Oregon statute (section 652.140) does not apply to

the wages in question here, and the district court had jurisdiction because § 301

preempts Cooper’s claim. See Curtis v. Irwin Indus., Inc., 913 F.3d 1146, 1153–54

(9th Cir. 2019); see also Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 105 S.

Ct. 1904, 1916, 85 L. Ed. 2d 206 (1985).

      At most, Cooper’s “dispute . . . concern[s] the application, meaning or

interpretation of” the CBA’s provisions about payment of wages upon termination,

or, in other words, “[g]rievances involving the discharge . . . of an employee.”

CBA § 13.1. The CBA’s grievance and arbitration procedures would therefore

apply to his claim. See Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024,

1035 (9th Cir. 2016). Because he cannot prove that he exhausted his contractual

remedies and does not allege that the union breached its duty of fair representation,

Cooper cannot state a claim for any alleged violation of the CBA by AIT. See id.

at 1036–37. Dismissal with prejudice was proper.

      AFFIRMED.


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