United States Court of Appeals,
Fifth Circuit.
No. 93-9112.
Michael Lee THOMAS, Plaintiff-Appellant,
v.
LTV CORPORATION, Defendant-Appellee.
Dec. 13, 1994.
Appeal from the United States District Court for the Northern District of Texas.
Before REYNALDO G. GARZA, DeMOSS and BENAVIDES, Circuit Judges:
BENAVIDES, Circuit Judge:
Michael Lee Thomas ("Thomas") appeals the district court's
summary judgment in favor of LTV Corporation. The district court
concluded that section 301 of the Labor Management Relations Act,
29 U.S.C. §§ 141-87, preempted Thomas' various state law claims.
This case primarily involves two issues: (1) whether Thomas'
individual attendance probation agreement is treated in the same
manner as a collective-bargaining agreement, for purposes of
preemption under section 301 of the Labor Management Relations Act,
29 U.S.C. §§ 141-87 ("LMRA"); and (2) whether Thomas' claim for
wrongful discharge under Tex. Labor Code § 451.001 (formerly
Tex.Rev.Civ.Stat.Ann. art. 8307c) is preempted under the LMRA.
Given the facts of this particular case, we answer both questions
affirmatively, and we affirm the district court's judgment.
I. Facts
From 1984 to 1991, Thomas was employed by LTV in Dallas,
Texas. For most of that time, Thomas was a member of the United
1 Automobile, Aerospace and Agricultural Implement Workers of
America, Local Union 848 ("UAW" or "Union"), which maintained a
collective-bargaining agreement ("CBA") with LTV. The CBA
contained the terms and conditions of employment for Thomas and
other employees similarly situated, and it also contained grievance
and arbitration procedures relating to disciplinary actions taken
against UAW members and the interpretation and application of the
agreement. For the UAW, its members, and LTV, these provisions
were binding.
Thomas had a history of absenteeism for which he received
written warnings in 1989 and 1990. At a subsequent meeting
attended by his union steward, an LTV supervisor, and the LTV
labor-relations representative, Thomas was presented with an
attendance probation agreement ("APA"). His continued employment
was conditioned upon acceptance of the APA, setting forth minimum
attendance requirements for one year. Under the APA, Thomas agreed
that any unexcused absences would result in his immediate discharge
and that his total number of absences could not exceed four percent
of his scheduled work days within any three-month period. The APA
also provided that if Thomas failed to meet these requirements, he
would be discharged without benefit of any grievance or arbitration
procedures set forth in the CBA. Thomas, the union steward, and
both LTV representatives signed the APA in their respective
capacities.
On January 4, 1991, Thomas suffered an on-the-job injury
requiring medical treatment. Thomas was unable to work until his
2 physician released him in April 1991. During this time, Thomas
applied for and received workers' compensation benefits under LTV's
compensation policy. After determining that Thomas' absences
during this period exceeded the minimum attendance requirements
under the APA, LTV fired Thomas on March 7, 1991.
Thomas filed a grievance through the UAW, contending that his
discharge was improper because the absences caused by his
work-related injuries should not have been included in calculating
whether the four-percent maximum was exceeded. Under the CBA's
grievance procedures, applicable when the grievance involves the
termination of a union member, other officers of the local and
international union participated.
On September 17, 1991, LTV and UAW officials presented Thomas
with a second attendance probation agreement which he refused to
sign because it waived any right he might have to sue LTV based on
the original APA. Thomas made no further efforts to pursue his
claim under the terms of the CBA.
II. Procedural History
In December 1992, Thomas sued LTV in Texas state court,
alleging: (1) breach of contract; (2) estoppel; (3) intentional
and negligent infliction of emotional distress; and (4) wrongful
discharge under Texas Labor Code § 451.001. Each claim arose from
LTV's conduct as it related to the events surrounding Thomas'
dismissal in March 1991. LTV removed the case to federal court on
the basis of federal question jurisdiction, claiming that Thomas'
state law claims were preempted by section 301 of the Labor
3 Management Relations Act, 29 U.S.C. § 185.
In July 1993, LTV filed a motion for summary judgment on all
of Thomas' claims, arguing that they were preempted by section 301
of the LMRA, that they were barred by a six-month statute of
limitations, and that Thomas failed to exhaust the grievance
procedures provided for under the CBA. Thomas' response included
a motion to remand the claims to state court. He asserted that the
district court lacked subject-matter jurisdiction and denied that
section 301 preempted his claims.
With the exception of Thomas' wrongful discharge claim, the
district court dismissed all of Thomas' state tort and contract
claims, finding them preempted by section 301 and barred by the
LMRA's six-month statute of limitations. The district court
initially concluded, however, that Thomas' wrongful discharge claim
under Texas Labor Code § 451.001 neither required a construction of
the CBA nor implicated rights created by the CBA; therefore, this
claim was remanded to state court.
On October 22, 1993, LTV filed a Motion to Alter or Amend the
Judgment requesting that the district court reconsider its
determination that the wrongful discharge claim was not preempted
by section 301. LTV argued that section 301 preempted the wrongful
discharge claim based on Thomas' deposition testimony that the
basis for his wrongful discharge claim was the interpretation and
application of the attendance probation agreement. On October 27,
1993, the district court granted LTV's motion and dismissed Thomas'
wrongful discharge claim, concluding that this claim was based upon
4 the APA and, therefore, preempted by section 301.
III. Jurisdiction
Thomas asserts that the district court lost jurisdiction to
reconsider its order remanding Thomas' wrongful discharge claim to
state court. This claim was initially remanded as a matter of
discretion under the authority of 28 U.S.C. § 1367(c), which states
in relevant part:
The district court may decline to exercise supplemental jurisdiction over a claim under subsection (a) if—
(1) the claim raises a novel or complex issue of state law;
(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction;
(3) the district court has dismissed all claims over which it has original jurisdiction....
Discretionary remand orders under this provision are neither based
upon a lack of subject-matter jurisdiction nor a defect in the
removal procedure under 28 U.S.C. § 1447(c). More importantly,
discretionary remand orders are not subject to 28 U.S.C. § 1447(d),
which provides:
An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case pursuant to section 1443 of this title shall be reviewable by appeal or otherwise.
As opposed to section 1447(d) remand orders, discretionary remand
orders are reviewable either by the district court or on appeal.
See In re Digicon Marine, Inc., 966 F.2d 158, 160 (5th Cir.1992).
With regard to the district court's ability to reconsider its
earlier remand order, the remand order is treated like any other
5 final judgment. Generally, a district court retains jurisdiction
until the time for filing an appeal has expired or until a valid
notice of appeal is filed. When a timely Rule 59(e) motion has
been filed, the district court retains jurisdiction for thirty days
after ruling on the motion. Here, LTV's Rule 59(e) motion to
reconsider or amend was filed four days after the remand order.
The district court granted the motion five days later, clearly
within its jurisdiction. See id. at 160-61. The district court
retained jurisdiction to vacate its remand order; likewise, this
Court has jurisdiction to hear this appeal. See In re Shell Oil
Co., 932 F.2d 1523, 1528 (5th Cir.), reh'g denied, 940 F.2d 1532
(5th Cir.1991).
IV. Standard of Review
A district court's ruling on a motion for summary judgment is
reviewed de novo. Federal Deposit Ins. Corp. v. Laguarta, 939 F.2d
1231, 1236 (5th Cir.1991); see also Baker v. Farmers Elec. Coop.,
Inc., 34 F.3d 274, 278 (5th Cir.1994) (preemption questions are
reviewed de novo ). A motion for summary judgment is properly
granted when competent evidence establishes the absence of a
genuine issue of material fact and that the movant is entitled to
judgment as a matter of law. See Celotex Corp. v. Catrett, 477
U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A
defendant moving for summary judgment must affirmatively
demonstrate that there is no genuine issue of material fact
concerning each element of the plaintiff's claims for relief. Id.
An issue is "material" if it involves a fact that might affect the
6 outcome of the suit under the governing law. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91
L.Ed.2d 202 (1986). This Court is required to resolve all doubts
and draw all reasonable inferences in favor of the non-movant and
determine whether the movant is entitled to judgment as a matter of
law. Wells v. General Motors Corp., 881 F.2d 166, 169 (5th
Cir.1989), cert. denied, 495 U.S. 923, 110 S.Ct. 1959, 109 L.Ed.2d
321 (1990).
V. Section 301 Preemption
Thomas contends that the district court erred in concluding
that his state law claims were preempted by section 301. Section
301 of the LMRA provides the requisite jurisdiction and remedies
for individual employees covered under a collective-bargaining
agreement between that individual's employer and the union. Landry
v. Cooper/T. Smith Stevedoring Co., Inc., 880 F.2d 846, 850 (5th
Cir.1989). Section 301 of the LMRA provides, in part:
Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.
29 U.S.C. § 185(a). Incompatible doctrines of state law must give
way to federal labor law. Local 174, Teamsters v. Lucas Flour Co.,
369 U.S. 95, 102-03, 82 S.Ct. 571, 576, 7 L.Ed.2d 593 (1962). The
preemptive effect of section 301 applies to causes of action
arising in both contract and tort. United Steelworkers v. Rawson,
495 U.S. 362, 369, 110 S.Ct. 1904, 1909, 109 L.Ed.2d 362 (1990);
7 Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 210-11, 105 S.Ct.
1904, 1910-11, 85 L.Ed.2d 206 (1985).
Preemption occurs when a decision on the state claim is
inextricably intertwined with consideration of the terms of the
labor contract or when the application of state law to a dispute
requires interpretation of the collective-bargaining agreement.
See Lingle v. Norge Div., Magic Chef, Inc., 486 U.S. 399, 406-07,
108 S.Ct. 1877, 1881-82, 100 L.Ed.2d 410 (1988); Allis-Chalmers,
471 U.S. at 213, 105 S.Ct. at 1912. The U.S. Supreme Court has
held:
[I]f the resolution of a state-law claim depends upon the meaning of a collective-bargaining agreement, the application of state law (which might lead to inconsistent results since there could be as many state-law principles as there are States) is pre-empted and federal labor-law principles—necessarily uniform throughout the Nation—must be employed to resolve the dispute.
Lingle, 486 U.S. at 405-06, 108 S.Ct. at 1881. Prior to Lingle,
the U.S. Supreme Court held that "when resolution of a state-law
claim is substantially dependent upon analysis of the terms of an
agreement made between the parties in a labor contract, that claim
must be either treated as a § 301 claim or dismissed as pre-empted
by federal labor-contract law." Allis-Chalmers, 471 U.S. at 220,
105 S.Ct. at 1915 (citations omitted). Equally well-recognized,
however, is the principle that claims only tangentially involving
provisions of collective-bargaining agreements are not preempted by
section 301. Lingle, 486 U.S. at 409-11, 108 S.Ct. at 1883-84.
A. The Attendance Probation Agreement
To determine the preemptive effect of section 301, we must
8 first decide whether Thomas' individual attendance probation
agreement is treated in the same manner as a collective-bargaining
agreement. Thomas characterizes the APA as an employment contract
independent of the CBA the UAW maintained with LTV. The APA
allegedly superseded any contrary provisions in the CBA and
governed the conditions of Thomas' continued employment. According
to the terms of the APA, Thomas would not be discharged if, upon
returning to work, he presented a written "verifiable, excusable
reason." The APA further stated that a termination resulting from
a violation of the agreement would be considered "final" and
"without recourse to the grievance and arbitration procedure"
provided by the CBA. Although the APA did not define what reasons
would be "excusable," Thomas testified that, on the day the APA was
presented, LTV labor-relations representative Frank Antonelli
specified that personal holidays and vacation days would "not
count" toward calculating the four-percent maximum. Antonelli also
stated that although sick days supported by a "viable doctor's
excuse" would be considered "excused," they would count toward the
calculation. This provision was amplified in a conversation Thomas
had with Antonelli on the day of his on-the-job accident.
Antonelli assured Thomas that time lost from work as a result of
the work-related injury would not be considered when determining
whether Thomas was meeting the attendance requirements of the APA.
From this, Thomas asserts that the agreement defines terms
particular only to him as a stand-alone contract, only tangentially
relating to the CBA.
9 To the contrary, LTV portrays the APA as an exercise of its
management responsibilities and functions, as described in the CBA.
When preparing to discipline a union member for excessive
absenteeism, LTV approached the union steward and drafted the
agreement for that employee's acceptance or rejection. LTV asserts
that this APA was not an independent or superseding contract,
arguing that it was part and parcel of the CBA because all parties
were adequately represented and their rights under the CBA were
protected. LTV contends that any dispute regarding the application
or meaning of the terms of the APA compels a direct reference to
the CBA and, thus, enters the scope of section 301 preemption.
In Eitmann v. New Orleans Public Serv., Inc., 730 F.2d 359
(5th Cir.1984), this Court held that a union employee's claim for
breach of a separate individual employment contract would be
analyzed for LMRA preemption purposes just as a
collective-bargaining agreement would be. Id. at 364. In that
case, the employee contended that he was advised, at the time of
his hiring, that a lineman suffering work-related injuries would
receive full compensation during periods of disability and, if
necessary, until retirement. At all times during his employment,
however, Eitmann was a member of a union which maintained a
collective-bargaining agreement with his employer. The CBA
provided for mandatory grievance procedures which were begun by
Eitmann, but later abandoned. Eitmann brought suit for breach of
contract, grounded on his individual contract with his employer.
This Court held that the two agreements could not be construed so
10 independently of each other, as to avoid preemption. While
individual contracts between employer and employee are not
precluded by the existence of a collective-bargaining agreement, to
the extent that an individual contract and a collective-bargaining
agreement are inconsistent, the latter must prevail. Id. at 362
(citing J.I. Case v. NLRB, 321 U.S. 332, 64 S.Ct. 576, 88 L.Ed. 762
(1944)). This "inconsistency" requirement is satisfied if the
separate agreement clearly seeks to "limit or condition" the terms
of the collective-bargaining agreement, which establishes the terms
and conditions of employment, including discharge and grievance
procedures. Id. at 363.
Even accepting Thomas' argument that the APA is "independent"
of the CBA, it nonetheless seeks to "limit or condition" the terms
of Thomas' employment which is addressed by the CBA. Thus, under
the authority of Eitmann, the APA is subject to a preemption
analysis just as if it was a CBA.1
In addition, we believe that the APA at issue here technically
qualifies as a CBA because it is a collectively-bargained
instrument, manifesting a disciplinary action taken by LTV for
Thomas' poor work attendance. Collective bargaining has been
defined as bargaining by an organization or group of workmen on
behalf of its members with the employer, as well as the settlement
1 At least one other circuit has held that an independent agreement of employment is treated as a CBA for preemption purposes because the independent agreement can only be effective as part of the larger collective-bargaining agreement. See Stallcop v. Kaiser Foundation Hosp., 820 F.2d 1044, 1048 (9th Cir.1987) (an oral agreement made in connection with the employee's reinstatement).
11 of disputes by negotiation between an employer and the
representative of his employees. See United Constr. Workers v.
Haislip Baking Co., 223 F.2d 872, 877 (4th Cir.), cert. denied, 350
U.S. 847, 76 S.Ct. 87, 100 L.Ed. 754 (1955). A
collective-bargaining agreement is an effort to set forth a whole
system of "industrial self-government." United Steelworkers v.
Warrior & Gulf Navigation Co., 363 U.S. 574, 580, 80 S.Ct. 1347,
1351, 4 L.Ed.2d 1409 (1960). As described by the U.S. Supreme
Court:
Collective bargaining agreements regulate or restrict the exercise of management functions; they do not oust management from the performance of them. Management hires and fires, pays and promotes, supervises, and plans.
. . . . .
The grievance procedure is, in other words, a part of the continuing collective bargaining process.
Warrior & Gulf Navigation Co., 363 U.S. at 580-81, 80 S.Ct. at
1351-52.
Here, the APA is a manifestation of a disciplinary action by
LTV for an employee's poor work attendance. The UAW, through its
union steward, was aware of this disciplinary proceeding and
participated in the presentation of the APA to Thomas. The summary
judgment proof supports LTV's assertion that the APA was presented
to Thomas by LTV personnel and the union steward for acceptance or
rejection, without his further input or negotiation. Thomas'
continued employment was conditioned upon his acceptance. When
agreeing to the attendance requirements as a condition to his
continued employment, Thomas also waived grievance or arbitration
12 proceedings related to his attendance, which would presumably
otherwise apply under the CBA. The CBA identifies LTV's continuing
authority to discipline or discharge employees for just cause or
for failure to work, and it also identifies procedures by which
union members may seek redress for any potential abuse of LTV's
authority. While the summary judgment proof does not detail the
extent of the union steward's involvement in the actual drafting of
the APA, it is undisputed that it was negotiated and entered into
by LTV, the UAW, and Thomas. We conclude that this document may be
properly described as a collectively-bargained instrument and
should be analyzed for preemption purposes just as if it was a CBA.
B. Breach of Contract and Estoppel
Thomas asserted that the APA was breached by LTV's
termination of him for absences resulting from his on-the-job
injury, specifically pointing to a disagreement over the
interpretation of the APA with regard to how LTV should apply his
time missed when calculating the four-percent maximum. Thomas also
alluded to the provision of the CBA relating to terminations for
"just cause." Thomas claims that representations by LTV's
labor-relations representative concerning the effect of the
injury-related absences toward the APA induced his reliance or
continued absence from work during his recuperation. Thomas claims
that LTV should be estopped from disavowing these representations.
As Thomas concedes, to resolve his claims for breach of
contract and estoppel, a determination of how the APA applies days
missed from an on-the-job injury is required. Consequently,
13 resolution of these claims are substantially dependent upon an
analysis of the terms of the APA, a collectively-bargained
instrument, and are preempted by section 301.
C. Intentional and Negligent Infliction of Emotional Distress
Thomas also contends that the district court erred in holding
that his state law claims for intentional and negligent infliction
of emotional distress are preempted by section 301. He claims that
LTV's "extreme and outrageous conduct" in the handling of the
disciplinary matters amount to negligent or intentional infliction
of emotional distress. Thomas claims that these causes of action
do not require an interpretation of the CBA and are only
tangentially related to the APA.
In Brown v. Southwestern Bell Tel. Co., 901 F.2d 1250 (5th
Cir.1990), an employee was told by his personal physician that he
was completely disabled and should not return to work.
Southwestern Bell, however, informed the employee that if he did
not return to work by a certain date, he would be terminated. The
employee brought a claim for intentional infliction of emotional
distress based on the fact that Southwestern Bell forced him to
chose between his job and his physician's advice. This Court held
that the essence of the employee's claim was that his absence from
work under his physician's orders did not constitute a just cause
for discharge under the CBA. Consequently, his claim required an
interpretation of the CBA and was held to be preempted by section
301.
Likewise, in Burgos v. Southwestern Bell, 20 F.3d 633 (5th
14 Cir.1994), the employee's family brought an action for intentional
infliction of emotional distress based on Southwestern Bell's
treatment of the employee, despite its knowledge of his heart
condition. We held that to determine whether Southwestern Bell
acted wrongfully in the way it transferred the employee from one
section to another, required him to take different tests, and
ultimately terminated him, an analysis of Southwestern Bell's
obligations under the collective-bargaining agreement was
necessary. Burgos, 20 F.3d at 636 (citing Brown and McCormick v.
AT & T Technologies, Inc., 934 F.2d 531 (4th Cir.1991) (en banc),
cert. denied, --- U.S. ----, 112 S.Ct. 912, 116 L.Ed.2d 813 (1992)
(section 301 preempted employee's intentional and negligent
infliction of emotional distress claims)). Because an analysis of
the collective-bargaining agreement was required, the emotional
distress claim was held to be preempted by section 301. Burgos, 20
F.3d at 636.
Just as we recognized in Burgos, the employee has the burden
of proving wrongful conduct by the employer. Thomas must
demonstrate that LTV's conduct was wrongful under the
circumstances. To determine whether LTV's conduct was wrongful
under the circumstances, an analysis of the collective-bargaining
agreement is necessary. Thus, section 301 preempts Thomas' claims
of intentional and negligent infliction of emotional distress.
D. The Wrongful Discharge Claim
Thomas argues that the district court erred in finding that
his wrongful discharge claim under Texas Labor Code § 451.001 was
15 preempted by section 301. LTV presented Thomas' deposition
testimony to support its motion for summary judgment. In his
deposition, Thomas repeatedly testified that the basis for his
wrongful discharge claim was the interpretation and application of
the APA. As we have already discussed, Thomas' state law claims
are preempted by section 301 if the claims depend on the meaning of
his APA.
In Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399,
412, 108 S.Ct. 1877, 1885, 100 L.Ed.2d 410 (1988), the Supreme
Court held that application of state law is preempted by the LMRA
only if such application depends upon the meaning of a CBA. There,
as here, the plaintiff's allegations concerned retaliatory
discharge, a claim requiring proof that (1) the plaintiff was
discharged or threatened with discharge, and (2) the employer's
motive in discharging or threatening to discharge him was to deter
him from exercising his rights under the Act or to interfere with
his exercise of those rights.
[E]ven if dispute resolution pursuant to a collective-bargaining agreement, on the one hand, and state law, on the other, would require addressing precisely the same set of facts, as long as the state-law claim can be resolved without interpreting the agreement itself, the claim is "independent" of the agreement for section 301 preemption purposes.
Lingle, 486 U.S. at 408, 108 S.Ct. at 1883. More recently, in a
Railway Labor Act case, the Supreme Court explicitly adopted the
identical preemption analysis as that used for the LMRA. In
Hawaiian Airlines, Inc. v. Norris, a discharged airline mechanic
brought a state court action, alleging violations of public policy
16 and the Hawaii whistleblower act. The Court contrasted the
employee's claim with one that was preempted because it was "firmly
rooted in a breach of the CBA itself." Specifically, the Court
stated:
Here, in contrast, the CBA is not the "only source" of respondent's right not to be discharged wrongfully. In fact, the "only source" of the right respondent asserts in this action is state tort law. Wholly apart from any provision of the CBA, petitioners had a state-law obligation not to fire respondent in violation of public policy or in retaliation for whistleblowing.
Hawaiian Airlines, Inc. v. Norris, --- U.S. ----, ----, 114 S.Ct.
2239, 2246, 129 L.Ed.2d 203 (1994). The Supreme Court also
recently held that an employee's action based upon a state-law
right to receive a penalty payment from her employer was not
preempted under the LMRA even though the penalty was tacked to her
wages, which were determined by a governing CBA. "[W]hen the
meaning of contract terms is not the subject of dispute, the bare
fact that a collective-bargaining agreement will be consulted in
the course of state-law litigation plainly does not require the
claim to be extinguished." Livadas v. Bradshaw, --- U.S. ----, ---
-, 114 S.Ct. 2068, 2078, 129 L.Ed.2d 93 (1994) (citing Lingle, 486
U.S. at 413 n. 12, 108 S.Ct. at 1885 n. 12).
Under Tex. Labor Code § 451.001, the plaintiff in a wrongful
discharge case is required to show that the filing of a workers'
compensation claim was a reason for his discharge. See Azar Nut
Co. v. Caille, 720 S.W.2d 685 (Tex.App.—El Paso 1986), aff'd, 734
S.W.2d 667 (Tex.1987). It is not incumbent upon the plaintiff to
prove that the filing of the claim was the sole cause for his
17 dismissal. See Trevino v. Corrections Corp. of Am., 850 S.W.2d
806, 808 (Tex.App.—El Paso 1993, writ denied); General Elec. Co.
v. Kunze, 747 S.W.2d 826 (Tex.App.—Waco 1987, writ denied).
Nonetheless, the plaintiff must produce some credible evidence of
the employer's retaliatory motive. Texas Division-Tranter, Inc. v.
Carrozza, 876 S.W.2d 312 (Tex.1994) (per curiam).
In our circuit, two cases are critical to the resolution of
this issue: Medrano v. Excel Corp., 985 F.2d 230 (5th Cir.1993)
and Jones v. Roadway Express, Inc., 931 F.2d 1086 ("Roadway Express
I "), reh'g denied, 936 F.2d 789 (5th Cir.1991) ("Roadway Express
II "). In Roadway Express, the employer claimed that, at
deposition, the employee "explicitly state[d] that the basis for
his Article 8307c claim expressly involves a misinterpretation of
a provision of the collective bargaining agreement...." To the
contrary, this Court stated:
We did not find such an explicit statement. The testimony cited by Roadway refers to the provisions in the CBA which Roadway claims justify Jones' dismissal. As our original opinion explained, however, Roadway may have fired Jones for employment reasons which the CBA justified. But if it also fired him in anticipation of his filing a workers' compensation claim, Jones can recover damages.
Roadway Express II, 936 F.2d at 791 (citations omitted).
In Medrano, the employee argued throughout trial that the
provision of the CBA itself constituted discrimination in violation
of former article 8307c. Consequently, this Court held that the
claim was preempted because "[the employee] actually drew on the
settlement provision of the CBA itself to establish a violation of
article 8307c...." Medrano, 985 F.2d at 233. Further, the
18 employee alleged that by applying this specific provision of the
CBA, the employer discriminated against him for settling a workers'
compensation claim, not for filing one. Id.
Recently, this Court followed Roadway Express, distinguishing
Medrano:
While the [Roadway Express] court noted that "either party may still use the CBA to support the credibility of its claims," such reliance does not show that an interpretation of the CBA is necessary to resolve [the plaintiff's] claim. In other words, although [the defendant] may defend against [the plaintiff's] article 8307c claim by arguing that its actions were justified by the CBA ... such reliance does not necessarily transform [the plaintiff's] article 8307c claim into a claim that requires an interpretation of the CBA.
Anderson v. American Airlines, Inc., 2 F.3d 590, 596 (5th Cir.1993)
(citations omitted). Nonetheless, our decision in Anderson
provides no succor to Thomas in this case. Thomas repeatedly and
explicitly stated during his deposition that the basis for his
wrongful discharge claim was the interpretation of the four-percent
provision contained in the APA; although given the opportunity,
Thomas never claimed any other basis for his claim. Neither during
oral argument nor in his brief was counsel for Thomas able to
direct this Court to any testimony or other summary judgment proof
creating a fact issue or otherwise contradicting Thomas' statements
made during his deposition. Consequently, we find this case
controlled by Medrano because, here, we have the explicit
statements found lacking in Roadway Express. Section 301 preempts
Thomas' claim for wrongful discharge.
VI. Statute of Limitations
Thomas maintains that the district court erred in applying
19 the six-month statute of limitations applicable to "hybrid" section
301 claims because he never sued the UAW. Thomas asserts that his
claims, even if preempted, were incorrectly dismissed because he
commenced his action within the appropriate Texas limitations'
periods.
The U.S. Supreme Court has defined "hybrid" suits, as
follows:
[H]ybrid suits formally comprise two causes of action. First, the employee alleges that the employer violated [section 301] by breaching the collective-bargaining agreement. Second, the employee claims that the union breached its duty of fair representation, which the Court has implied from the scheme of the NLRA, by mishandling the ensuing grievance-and-arbitration proceedings.
Reed v. United Transp. Union, 488 U.S. 319, 328, 109 S.Ct. 621,
627, 102 L.Ed.2d 665 (1989); see also DelCostello v. International
Bhd. of Teamsters, 462 U.S. 151, 164, 103 S.Ct. 2281, 2290, 76
L.Ed.2d 476 (1983) (the two claims are inextricably
interdependent). If the employee so chooses, they may sue one
defendant and not the other, but the case to be proved is the same
whether one or both are sued. DelCostello, 462 U.S. at 165, 103
S.Ct. at 2291. However, if the arbitration-and-grievance
proceeding is the exclusive remedy for breach of the CBA, the
employee may not sue his employer under section 301 until
completion of the proceeding. Daigle v. Gulf States Utilities Co.,
Local 2286, 794 F.2d 974, 977 (5th Cir.), cert. denied, 479 U.S.
1008, 107 S.Ct. 648, 93 L.Ed.2d 704 (1986). The "indispensable
predicate" for a section 301 action against an employer, based on
a violation of a collective-bargaining agreement, is the union's
20 breach of its duty of fair representation. Id. The applicable
statute of limitations for these "hybrid" section 301 claims is six
months, as may be found in section 10(b) of the National Labor
Relations Act (NLRA), 29 U.S.C. § 160(b). Id.
Thomas' assertion that his claims are not hybrid in nature
ignores the fact that his claims are based upon the alleged breach
of the APA, not to mention the undisputed fact that he initially
submitted his complaints about the application of the APA through
the grievance procedures provided under the CBA. According to the
CBA, these grievance procedures were final and binding on LTV, the
UAW, and Thomas. Consequently, Thomas' grievance about the APA was
a mandatory prerequisite to suit.2 Thomas did not exhaust this
remedy.
In addition, under the rule of DelCostello, Thomas was bound
by the results of the grievance proceeding unless he could prove
that LTV violated the contract and that the UAW failed to represent
him fairly. Here, it is undisputed that after Thomas filed his
grievance, representatives of LTV and the UAW negotiated a
settlement permitting Thomas to return to work, subject to a second
APA. Thomas, however, rejected this settlement in favor of filing
suit, a step prohibited under DelCostello unless there was some
breach of fair representation by the UAW. Consequently, the only
federal claims that Thomas could assert against LTV based on the
2 In the context of section 301, federal law ordinarily requires the employee to complete his grievance proceeding before filing suit. Parham v. Carrier Corp., 9 F.3d 383, 390 (5th Cir.1993).
21 interpretation and application of the APA were hybrid section
301/fair representation claims, regardless of whether or not the
UAW was joined as a party.
Thomas did not file suit until twenty-one months after the
termination of his grievance proceeding. All of his claims were
barred by the applicable six-month statute of limitations. The
district court's summary judgment is AFFIRMED in all respects.