Peggy Childers v. The Chesapeake and Potomac Telephone Company, a New York Corporation David Charles Seal Ray N. Brown, M.D. Robert E. Gerring

881 F.2d 1259

• Court: Court of Appeals for the Fourth Circuit
• Decided: September 7, 1989
• Docket: 87-1727
• Status: Published

Opinions

WILKINSON, Circuit Judge:

After being discharged by the Chesapeake & Potomac Telephone Company, Peggy Childers filed this action in Maryland state court against C & P and three of C & P’s employees, alleging wrongful discharge and intentional infliction of emotional distress. She claimed that her discharge was in retaliation for filing workers’ compensation claims and violated Maryland’s public policy against handicap discrimination. Defendants removed the action to federal district court, claiming that Child-ers’ state-law claims were preempted by § 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185. The district court found that Childers’ state claims were preempted by § 301 and therefore properly removed. The district court granted summary judgment in favor of C & P and the individual defendants, holding that Childers failed to satisfy the prerequisites of a § 301 cause of action, 670 F.Supp. 624.

We affirm, but for different reasons than those stated by the district court. We hold that a federal court has jurisdiction in a removed § 301 action to address the merits of alleged state-law claims during the course of determining its own jurisdiction, and, that it lies within the discretion of a federal court to dismiss meritless state-law claims during the course of its preemption inquiry. See Washington v. Union Carbide Corp., 870 F.2d 957, 959-62 (4th Cir.1989). Here the invalidity of Childers’ state claims is apparent and entitled defendants to summary judgment. We decline, therefore, to address appellees’ preemption claims.

I.

Peggy Childers began working with C & P in 1973 as a telephone installer. She was a member of the Communications Workers of America, AFL-CIO, and its Local 2100. The terms and conditions of her employment with C & P were governed by a collective bargaining agreement between C & P and the union, which prohibited termination of employees without “just cause” and vested C & P employees with numerous rights and benefits, including the right to grieve and arbitrate employment disputes.

On September 3, 1981, Childers injured her finger while installing a telephone for C & P. She filed a workers’ compensation claim and was awarded temporary total disability benefits through October 8, 1981. Because of her disability, C & P removed Childers from phone installation and promoted her to the position of central office technician. In June of 1983, Childers filed a workers’ compensation claim for permanent partial disability benefits for her hand injury.

Also in June of 1983, Childers began psychiatric treatment for depression which she alleged resulted from her hand injury and C & P’s reaction to it. On July, 11, 1983, Childers notified C & P that the conditions of her employment were intolerable and that she could no longer work for the company. Her last day of work with C & P was July 25,1983. On October 3, 1983, she filed a workers' compensation claim for temporary total disability benefits based on an alleged work-related psychiatric disability.

C & P approved a medical disability leave for Childers pending a psychiatric determination of her ability to work. Under the terms of the collective bargaining agreement, she was paid medical benefits during this leave of absence. On November 30, 1983, C & P’s psychiatrist concluded that Childers did not exhibit a work-related psychiatric disability. C & P’s medical director therefore determined that Childers was able to return to work and would not receive medical disability benefits after December 8, 1983. Childers was notified of the company’s decision but refused to return to work. On December 22, 1983, C & P notified Childers that she would be removed from the payroll if she failed to return to work by January 3, 1984. C & P terminated her employment on January 4, 1984 when she refused to return to the company.

On February 10, 1984, Childers requested the union to file a grievance on her behalf. The union refused to pursue the grievance because it was not filed within the time limit established by the collective bargaining agreement. The National Labor Relations Board also declined to intervene.

On January 5, 1987, Childers filed suit in the Circuit Court for Baltimore City against C & P and its employees, David Charles Seal, Ray N. Brown, and Robert E. Gerring, alleging wrongful discharge on the basis of handicap discrimination, retaliatory discharge for filing workers’ compensation claims, and intentional infliction of emotional distress. C & P and the individual defendants removed the action to federal district court pursuant to 28 U.S.C. §§ 1441(b) and 1331, claiming that Childers’ state-law claims were completely preempted by § 301 of the Labor Management Relations Act of 1947 (LMRA). Childers moved to remand the case to state court, asserting that her complaint was based solely on Maryland law and was therefore not removable to federal court.

On September 30, 1987, the district court denied Childers’ motion to remand and granted defendants’ motion for summary judgment. The district court found that Childers’ state-law claims were preempted by § 301 and therefore properly removed to federal court. The district court granted summary judgment in favor of C & P and the individual defendants because Childers failed to exhaust her contractual remedies and her § 301 action was barred by the federal statute of limitations.

Childers appeals.

II.

We shall review in parts A and B the basic principles of federal jurisdiction in § 301 preemption cases and explain in part C how our analysis differs from that in the dissenting opinion.

A.

The presence of federal question jurisdiction is generally determined by the “well-pleaded complaint” rule. Gully v. First National Bank, 299 U.S. 109, 112-13, 57 S.Ct. 96, 97-98, 81 L.Ed. 70 (1936); Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908). Federal jurisdiction exists, in other words, “only when a federal question is presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 107 S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987).

In most instances, the plaintiff is the master of the complaint and may avoid federal jurisdiction by relying exclusively on state law. The doctrine of “complete preemption,” however, serves as an exception to the well-pleaded complaint rule. Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 22-24, 103 S.Ct. 2841, 2852-54, 77 L.Ed.2d 420 (1983). If a federal cause of action completely preempts a state-law claim, “any complaint that comes within the scope of the federal cause of action necessarily 'arises under’ federal law,” id. at 24, 103 S.Ct. at 2854, and is removable to federal court. The Supreme Court has held that the preemptive effect of a federal statute may be so “extraordinary” that it “converts an ordinary state common law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.” Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 107 S.Ct. 1542, 1547, 95 L.Ed.2d 55 (1987). The complete preemption exception to the well-pleaded complaint rule “is applied primarily in cases raising claims preempted by § 301 of the LMRA.” Caterpillar, 107 S.Ct. at 2430. If appellant’s claims are preempted by § 301 of the LMRA, removal was appropriate in this case.

B.

We turn next to the nature of the preemption inquiry itself. Section 301(a) of the LMRA, 29 U.S.C. § 185(a), provides that:

Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce ... may be brought in any district court of the United States having jurisdiction of the parties ....

In Textile Workers v. Lincoln Mills, 353 U.S. 448, 451, 77 S.Ct. 912, 915, 1 L.Ed.2d 972 (1957), the Supreme Court held that § 301 not only provides federal jurisdiction over controversies involving collective bargaining agreements but also authorizes federal courts to fashion a body of federal law for the enforcement of collective bargaining agreements.

The principle of § 301 preemption of state-law claims was more fully developed in later decisions. The Court concluded in Teamsters v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962), that Congress enacted § 301 with the intent that federal labor law doctrines would uniformly prevail over inconsistent state law. See also Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985). However, in Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 1882-83, 100 L.Ed.2d 410 (1988), the Court held that a state claim was not preempted by § 301, despite the fact that resolution of the state claim might involve the same factual inquiry under the collective bargaining agreement. According to the Court, the application of state law is preempted by § 301 “only if such application requires the interpretation of a collective-bargaining agreement.” Id., 108 S.Ct. at 1885.

The preemptive effect of § 301 thus depends upon the elements of the purported state-law claim. We hold therefore that a federal district court has the discretion to address the validity of the alleged state-law claim during the course of its preemption inquiry. If the federal court determines that the claimant has alleged a colorable state-law cause of action, the court then must determine whether the state claim is “independent” of the collective bargaining agreement and therefore not preempted. Id. at 1882. The action may be dismissed, however, if the claimant has failed to allege a cause of action under state law. See Washington, 870 F.2d at 959-62. A federal court’s determination of state law made in the course of determining a question of federal jurisdiction is a judgment on the merits, Fed.R.Civ.P. 41(b); the dismissal may therefore be with prejudice.

C.

The discretion of district courts to dismiss state claims is limited to those whose lack of merit is apparent. Where the plaintiff appears to state a claim under ■state law, a federal district court would be well-advised to proceed to the § 301 preemption inquiry and, if the state claim is not preempted, to remand the entire action to state court. Where the complaint, however, plainly fails to state a cause of action under state law, it is open to the federal court to dismiss it.

We reject the dissent’s assertion that this is an act without jurisdictional authority. “A colorable state-law cause of action is a predicate to a § 301 preemption claim,” Washington, 870 F.2d at 959, and a district court “may logically wish to examine the elements of a state cause of action in order to resolve more precisely the preemption question.” Id. at 961. Familiarity with the elements of the state-law claim is thus an indispensable requirement — and an inevitable byproduct — of the preemption and jurisdictional analysis.

Because the dissenting opinion would prevent a federal court from dismissing patently meritless state-law claims during the course of its § 301 preemption inquiry, we reject its position as litigious. Courts, whether federal or state, do not exist merely to resolve claims; they exist to decide lawsuits. The dissent’s approach would send litigants through a maze of different court systems, difficult preemption inquiries, and needless appeals even where the underlying state claims were trivial. The plaintiff might bring a claim in state court, have it removed to federal court, have the preemption inquiry extensively argued in federal court, both at the trial level and on appeal, have the state claim held to be not preempted on appeal, and have the entire action remanded again to state court with no more than a preliminary question decided. The burdens that this prolonged journey would impose upon litigants are simply prohibitive.

The dissent also advances a simplistic model of federalism based on the notion that only state courts may decide questions of state law and only federal courts may decide questions of federal law. Such a view violates the spirit of the two seminal Supreme Court decisions in United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), and Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Certainly, by depriving federal district courts of any discretion to dismiss insubstantial state claims, the dissent takes a more rigid approach than the Gibbs decision. It also undermines the values of judicial economy and repose in cases where a claimant fails to allege any valid state cause of action and where it is perfectly clear that nothing of substance exists to be preempted. A federal court has jurisdiction to determine its own jurisdiction, United States v. United Mine Workers of America, 330 U.S. 258, 292 n. 57, 67 S.Ct. 677, 695 n. 57, 91 L.Ed. 884 (1947), and possesses the discretion to address a state claim on its merits in the process of determining its own jurisdiction under Caterpillar, 107 S.Ct. at 2425. See Washington, 870 F.2d at 960. The guidelines under which this discretion must be exercised have been examined at length in our earlier decision in Washington, 870 F.2d at 959-62, which the dissenting opinion essentially seeks to distinguish on the grounds that this is a removed case. We made clear in Washington, however, that district courts possess the discretion to dismiss insubstantial state claims both in original and removed cases, and we rely upon the discussion in the Washington decision in our affirmance of the judgment here. Id. at 960.

III.

With the above principles in mind, we turn to the state claims in the instant case. The § 301 preemption inquiry is predicated on the existence of a colorable state cause of action. Id. at 959. We therefore ask whether appellant presents any colorable state claim the elements of which might require interpretation of the collective bargaining agreement and therefore be preempted under § 301. Appellant contends that she has valid causes of action for wrongful discharge based on the Maryland Workmen’s Compensation Act and on Maryland’s public policy against handicap discrimination. She also asserts that defendants’ conduct supports four separate causes of action for intentional infliction of emotional distress under Maryland law. We think appellant’s state claims are plainly without merit, and we need not reach the question of whether § 301 of the LMRA in fact preempts them.¹

A.

We first address Childers’ claim of wrongful discharge based on the Maryland Workmen’s Compensation Act. In Kern v. South Baltimore Gen. Hosp., 66 Md.App. 441, 504 A.2d 1154 (1986), the Maryland Court of Special Appeals stated that the Maryland Workmen’s Compensation Act expresses the state’s public policy that an employee may not be discharged for filing a workers’ compensation claim. According to the court, a wrongful discharge action lies when an employee is discharged “solely” because he has filed for workers’ compensation benefits.² This wrongful discharge action extends to employees “at will,” as well as to employees who serve under contract. Ewing v. Koppers Co., 312 Md. 45, 537 A.2d 1173 (1988).

The Maryland courts have been aware, however, that § 301 of the LMRA may preempt a state-law remedy in favor of employees who serve pursuant to a collective bargaining agreement. Id., 537 A.2d at 1175-79. Maryland therefore recognizes a “conditional tort remedy” for employees who serve pursuant to collective bargaining agreements which is consistent with § 301 preemption principles. More specifically, a discharged employee’s wrongful discharge action is conditioned on the outcome of the dispute resolution process fixed by the collective bargaining agreement and, if necessary, a federal action pursuant to § 301 of the LMRA. A state cause of action will not lie unless the employee has exhausted these alternative remedies and has obtained a finding that he was discharged without just cause. See Allen v. Bethlehem Steel Corp., 76 Md.App. 642, 547 A.2d 1105 (1988); Ewing, 537 A.2d at 1173.

If, for example, a discharged employee files a grievance pursuant to the collective bargaining agreement and an arbitrator finds that the employee was discharged without just cause, the Maryland courts will permit a subsequent state action for wrongful discharge based on the Maryland Workmen’s Compensation Act. Allen, 547 A.2d at 1105. In such a case, a subsequent state-court finding that the employee was discharged in violation of Maryland public policy as expressed in the statute would not be inconsistent with the arbitrator's decision, and would not violate the principles of § 301 preemption. Id. at 1110. Resolution of the state-law claim would not require a court to interpret the collective bargaining agreement and § 301 would therefore not preempt the application of state law. As the Maryland Court of Appeals stated in Ewing:

In such [a] case, the findings necessary for the resolution of the grievance would not be disturbed, but rather would serve as a foundation for an additional action which could be successful only if the employee could show that the motive for discharge was retaliation for the filing of a worker’s compensation claim. The state claim would be supplemental, and no possibility would exist that the federal labor contract scheme established by § 301 would be frustrated.

537 A.2d at 1178.

If the arbitrator finds, however, that the employer had just cause for discharging the employee, Maryland law will not provide a supplemental state-law remedy for wrongful discharge. Id. at 1179. In such a case, an employee could not have been discharged “solely” for filing a workers’ compensation claim and therefore could not satisfy the requirements of the Maryland Workmen’s Compensation Act. See Md. Code Ann. Art. 101, § 39A.

In the instant case, appellant failed to exhaust her contractual remedies and therefore cannot avail herself of the supplemental state-law remedy for wrongful discharge based on the Maryland Workmen’s Compensation Act. Contrary to her contention that she may eschew her contractual remedies, the Maryland courts require that the question of whether she was discharged for just cause be resolved by the process contemplated by the parties in the collective bargaining agreement and if necessary by a federal action under § 301 of the LMRA.³

Such a conditional tort remedy is permissible given the Supreme Court’s analysis in Lingle. The Court recognized in Lingle that the responsibility for defining the elements and scope of a state cause of action rests with the state legislature and state courts. 108 S.Ct. at 1881-83. See also Allis-Chalmers, 471 U.S. at 213-14, 105 S.Ct. at 1912-13. Section 301 of the LMRA ensures that federal law will be used to interpret collective bargaining agreements; it “says nothing about the substantive rights a State may provide to workers when adjudication of those rights does not depend upon the interpretation of such agreements.” Lingle, 108 S.Ct. at 1883. See also Allis-Chalmers, 471 U.S. at 211, 105 S.Ct. at 1911. Maryland may therefore require a discharged employee, who serves pursuant to a collective bargaining agreement, to exhaust his contractual and federal remedies before he may pursue a state action in tort.

The dissenting opinion recognizes that the Maryland cause of action for retaliatory discharge in favor of a union employee has been “substantially curtailed.” At 1271. The dissent notes that:

the remedy could only be made available to union employees as a supplemental remedy to any contractual remedy for the same employer conduct previously awarded in arbitration under a labor contract. So construed, the remedy could only be asserted after a favorable resort by the employee to such grievance procedures; if such grievance was pursued and rejected, no state claim could be maintained.

Id. (footnote omitted). In the dissenting opinion’s view, however, the Maryland conditional tort remedy is based on the Maryland courts’ “erroneous perception” regarding the preemptive scope of § 301. The dissent speculates that if confronted with the issue again, the Maryland courts would significantly recast the cause of action. Federal courts, however, are required under Erie, 304 U.S. at 64, 58 S.Ct. at 817, to rely upon state law as it presently exists and not to invite state courts to redefine their own state tort remedies. The contours of the Maryland cause of action for wrongful discharge is a settled question of state law and appellant has failed to satisfy its elements.

Childers also contends that she was unable to work due to a psychiatric disability and that C & P wrongfully discharged her in violation of Maryland’s public policy against handicap discrimination. Her allegations, however, cannot sustain a state cause of action for wrongful discharge.

Maryland law explicitly prohibits employment discrimination based on physical or mental handicap, see Md.Code Ann. Art. 49B, § 16; it does not, however, create a private right of action in tort. Soley v. Maryland Comm’n on Human Relations, 277 Md. 521, 356 A.2d 254 (1976); Dillon v. Great Atlantic & Pacific Tea Co., 43 Md.App. 161, 403 A.2d 406 (1979). A private cause of action for wrongful discharge based on Article 49B is not recognized because there is an exclusive statutory procedure and administrative remedy for redress of employment discrimination in Maryland. Makovi v. Sherwin-Williams Co., 75 Md.App. 58, 540 A.2d 494 (1988) (administrative remedy “restricted essentially to in-junctive relief, where appropriate, reinstatement, and a limited amount of back pay”). See also Parlato v. Abbott Laboratories, 850 F.2d 203 (4th Cir.1988); Glezos v. Amalfi Ristorante Italiano, Inc., 651 F.Supp. 1271, 1275-76 (D.Md.1987); Chekey v. BTR Realty, Inc., 575 F.Supp. 715 (D.Md.1983).

Childers’ sole avenue of redress was thus to the Maryland Human Relations Commission. Cf. Dillon, 403 A.2d at 409. She in fact complained to the Commission, and on May 5, 1988, the Commission reported that its investigation failed to substantiate her allegations of employment discrimination. The Commission found no probable cause to believe that C & P discriminated against her on the basis of physical or mental handicap in violation of Article 49B. The Commission also found that C & P attempted to accommodate Childers’ disability and that it was unreasonable to expect C & P to extend her disability leave indefinitely when there was no medical evidence to substantiate her leave of absence. The Commission concluded that C & P was justified when it removed appellant from the payroll.

Finally, .Childers alleges separate causes of action for intentional infliction of emotional distress against C & P and each of the individual defendants. Her allegations, however, do not rise to the level of outrageous conduct necessary to sustain such a cause of action in Maryland.

A cause of action for emotional distress does not exist to redress every instance of dissatisfaction in the workplace. Under Maryland law, the elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) the conduct must be intentional or reckless; (2) the conduct must be extreme and outrageous; (3) there must be a causal connection between the wrongful conduct and the emotional distress; and (4) the emotional distress must be severe. Harris v. Jones, 281 Md. 560, 380 A.2d 611, 614 (1977). The Harris court noted that liability will be imposed “ ‘only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ ” Id. (citing Restatement (Second) of Torts § 46 comment d (1965)). Whether the alleged wrongful conduct may reasonably be regarded as extreme and outrageous, “is for the court to determine, in the first instance.” Id. 380 A.2d at 615.

Childers alleges in her complaint that C & P contested her workers’ compensation claims and terminated her employment. This fails to state a cause of action under state law. Even assuming that Childers alleges severe emotional distress and the requisite intent and causal connection, C & P cannot be liable for the infliction of emotional distress where it has done no more than exercise its legal rights in a permissible way. See Young v. Hartford Accident & Indemnity Co., 303 Md. 182, 492 A.2d 1270, 1277-78 (1985). In this case, C & P has done no more than exercise its rights under Maryland law. C & P was not obligated to accept the conclusion of appellant’s psychiatrist that she was unable to work due to a psychiatric disability. C & P also had the right to insist that appellant be examined by a psychiatrist of C & P’s choosing. See id., 492 A.2d at 1278. In addition, C & P was free to contest Childers’ workers’ compensation claims. The Maryland Workmen’s Compensation Act, for example, explicitly requires the Maryland Workers’ Compensation Commission to order a hearing if requested by the employer. Md.Code Ann. Art. 101, § 40(a). It will be the “rare case” where the nonpayment of workers' compensation benefits will satisfy the elements of the intentional infliction of emotional distress. See Gallagher v. Bituminous Fire & Marine Ins. Co., 303 Md. 201, 492 A.2d 1280, 1285 (1985).

Childers’ emotional distress claims against the individual defendants are likewise insufficient under state law. David Seals, C & P’s compensation claims manager, contested appellant’s applications for workers’ compensation benefits. Ray Brown, C & P’s medical director, ordered Childers to return to work based on the recommendation of a company-appointed psychiatrist that she was medically able to do so. Robert Gerring, C & P’s district manager of switching services, was the individual who informed appellant on December 22, 1983 that she would be discharged if she did not return to work. Each person had the right — and in some cases, the obligation — to act as he did. None of this conduct exceeds the bounds of that normally tolerated in a civilized society. Appellant therefore has failed to allege a valid cause of action for intentional infliction of emotional distress under Maryland law.

IV.

Although the scope of § 301 preemption is a matter of federal law, a court first must look to state law to define the nature and extent of the alleged state cause of action. Allis-Chalmers, 471 U.S. at 213-14, 105 S.Ct. at 1912-13. We hold that it lies within the discretion of a federal court to dismiss state claims on the merits before resolving the preemption inquiry if the underlying state claims are patently without merit. In this case, we do not need to reach the question of whether § 301 of the LMRA preempts Childers’ purported state remedies because she has plainly failed to state any cause of action under Maryland law. There are, in short, no state claims here to preempt.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

1 . The dissenting opinion argues that Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976), prevents this court from addressing the state claims for the first time on appeal. In doing so, the dissent presents Singleton as too absolute and unqualified a bar against such appellate review in the first instance. Singleton, in fact, announced a more flexible standard. The Supreme Court recognized that

[t]he matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases. We announce no general rule. Certainly there are circumstances in which a federal appellate court is justified in resolving an issue not passed on below, as where the proper resolution is beyond any doubt....

Id. at 121, 96 S.Ct. at 2877, citing Turner v. City of Memphis, 369 U.S. 350, 82 S.Ct. 805, 7 L.Ed.2d 762 (1962).

Certainly, we ascribe to the general principle that an appellate court should not resolve in the first instance claims that have not been ruled upon by the district court. The fairness of this rule, both to litigants and district courts, is apparent. In this instance, however, all of the questions being passed upon are squarely posed to the court as matters of law from the face of the complaint. Plaintiffs primary claim, that addressed in III A, was briefed and argued by both parties on appeal and indeed plaintiff submitted supplemental authority on the question to this court. Under these circumstances, a remand on a point whose outcome is apparent would do a disservice to both parties. See Turner, 369 U.S. at 350, 82 S.Ct. at 805.

2 . The Maryland Workmen’s Compensation Act provides in pertinent part that:

(a) An employee entitled to benefits under this article may not be discharged from employment solely because he files a claim for compensation under this article.

Md.Code Ann. Art. 101, § 39A.

3 . As the district court found, appellant also cannot state a valid cause of action under § 301 of the LMRA. Appellant filed an untimely grievance and then chose not to appeal when the grievance was rejected. She therefore failed to exhaust her contractual remedies, a formal prerequisite of a § 301 cause of action. See Clayton v. International Union, UAW, 451 U.S. 679, 681, 101 S.Ct. 2088, 2091, 68 L.Ed.2d 538 (1981).

In addition, § 301 actions are subject to the six month statute of limitations found in § 10(b) of the National Labor Relations Act. See DelCostello v. Teamsters, 462 U.S. 151, 169, 103 S.Ct. 2281, 2293, 76 L.Ed.2d 476 (1983). Appellant, however, filed her complaint almost three years after her cause of action arose.