PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JEANETTE DAVIS,

Plaintiff-Appellant,

v.

BELL ATLANTIC-WEST VIRGINIA,

No. 96-1065

INCORPORATED, d/b/a The

Chesapeake and Potomac Telephone

Company of West Virginia, a West

Virginia Corporation,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of West Virginia, at Parkersburg.

Robert J. Staker, Senior District Judge.

(CA-95-445-6)

Argued: December 2, 1996

Decided: April 3, 1997

Before HALL, WILKINS, and NIEMEYER,

Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Niemeyer wrote the opinion,

in which Judge Hall and Judge Wilkins joined.

_________________________________________________________________

COUNSEL

ARGUED: William C. Garrett, Gassaway, West Virginia, for Appellant. Donald Bell Haller, Arlington, Virginia, for Appellee.

_________________________________________________________________
OPINION

NIEMEYER, Circuit Judge:

The question we decide in this case is whether an employee's state

law claims for violation of a settlement agreement that resolved a

grievance brought under her collective-bargaining agreement are preempted by § 301 of the Labor-Management Relations Act ("LMRA"),

29 U.S.C. § 185. We hold that they are and accordingly affirm.

I

In August 1991, Bell Atlantic-West Virginia, Incorporated ("Bell

Atlantic") discharged Jeanette Davis from her position as a telephone

operator for excessive absenteeism and tardiness. Davis was a member of the bargaining unit represented by the Communication Workers

of America, AFL-CIO ("the Union"), and was, therefore, covered by

the Union's collective-bargaining agreement which provided her with

specific grievance rights. Pursuant to the collective-bargaining agreement, she filed a grievance through the Union, challenging her discharge. The parties reached a settlement agreement providing for

Davis' reinstatement without backpay or damages. Davis, Bell Atlantic, and the Union signed the agreement. The settlement agreement

provided further that Bell Atlantic would "immediately bridge the net

credited service" which Davis had accrued prior to her termination

(12 years) but that Davis would not receive any service credit for the

period between her discharge and her reemployment. The agreement

also provided that if Davis "exceeds six incidental absences or six tardies in the twelve (12) months following her reemployment, she shall

be subject to immediate dismissal by the Company, without recourse

to the grievance or arbitration procedure."

Within ten months after resuming her employment, Davis was

tardy seven times, several without explanation and several because

she overslept. On May 31, 1994, Bell Atlantic discharged her again.

Davis filed a two-count complaint against Bell Atlantic in the Circuit Court of Wood County, West Virginia, alleging a state law contract claim for breach of the collective-bargaining agreement and the

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settlement agreement and a state law tort claim for wrongful discharge. In her breach of contract count, Davis alleged that she "was

wrongfully discharged in violation of [Bell Atlantic's] policy on tardiness, of the terms and conditions of [the Union's] collectivebargaining agreement, of which she was a member, and the settlement

agreement, dated July 30, 1993." Incorporating the same allegations

in her wrongful discharge count, Davis alleged in that count that Bell

Atlantic violated implied duties of "good faith" and "fair dealing" and

a duty to discharge her only for "just cause."

Bell Atlantic removed Davis' complaint to the federal court under

28 U.S.C. § 1441, alleging that Davis' claim was preempted by § 301

of the LMRA and therefore her claims fell within the district court's

federal question jurisdiction. The district court denied Davis' motion

to remand, finding that the LMRA preempted the state law claims.

The court concluded that Davis' breach of contract claim was clearly

preempted because it explicitly alleged a breach of the collectivebargaining agreement and of the derivative settlement agreement. The

district court also found Davis' wrongful discharge claim preempted

because Davis' allegation that Bell Atlantic violated implied conditions of "good faith," "fair dealing" and discharge only for "just

cause" could be interpreted solely in the context of the rights and

responsibilities defined in the collective-bargaining agreement. The

district court later granted Bell Atlantic's motion for summary judgment because Davis' complaint was barred by the applicable statute

of limitations. This appeal followed.

II

The single issue that Davis raises on appeal is whether the district

court properly refused to remand her complaint to the state court on

the ground that federal labor law preempts her state claims. While

Davis acknowledges that a claim for breach of a collective-bargaining

agreement is exclusively a question of federal law under § 301 of the

LMRA, she argues that her claim for breach of the settlement agreement is an independent state law claim because "the terms of the [settlement agreement] did not rely upon the interpretation of any term

or provision of the collective-bargaining agreement." In an effort to

separate her claim from the collective-bargaining agreement, Davis

notes that in the settlement agreement she agreed to dismiss the griev-

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ance filed under the collective-bargaining agreement and to waive any

"grievance rights" if she violated the settlement agreement.

The particular question that Davis' appeal raises-- whether claims

for breach of a settlement agreement entered into pursuant to the

grievance procedure of a collective-bargaining agreement are preempted by § 301 of the LMRA -- has not previously been addressed

by our court.

The applicable legal principles are not disputed. Section 301 of the

LMRA provides that suits for violation of collective-bargaining

agreements may be filed in federal court. See 29 U.S.C. § 185(a). And

it is well established that § 301 provides federal courts not only with

jurisdiction but also with the duty of developing a federal common

law of labor rights. See Allis-Chalmers Corp. v. Lueck, 471 U.S. 202,

209 (1985); Textile Workers Union v. Lincoln Mills, 353 U.S. 448,

456 (1957). To ensure uniform interpretation of collective-bargaining

agreements and to protect the power of arbitrators,§ 301 has been

found to "displace entirely any state cause of action `for violation of

contracts between an employer and a labor organization.'" Franchise

Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 23

(1983). Accordingly, "state law does not exist as an independent

source of private rights to enforce collective-bargaining contracts."

Caterpillar, Inc. v. Williams, 482 U.S. 386, 394 (1987) (citation omitted). Moreover, the Supreme Court has refused to allow artful pleading to circumvent the power of § 301's preemptive force. Form is not

to triumph over substance as employees relabel contract claims as

claims for tortious breach of a contract. See Allis-Chalmers, 471 U.S.

at 211. Under this "complete pre-emption corollary to the wellpleaded complaint rule," Caterpillar, 482 U.S. at 393, it follows that

a purportedly state law claim, the resolution of which depends substantially upon the analysis of a collective-bargaining agreement's

terms, must either be treated as a claim under § 301 or be dismissed

as preempted under federal labor law. See Allis-Chalmers, 471 U.S.

at 220.

While § 301 does not preempt "nonnegotiable rights conferred on

individual employees as a matter of state law," Livadas v. Bradshaw,

512 U.S. 107, 123 (1994), § 301 preemption does occur when resolution of a state claim "is inextricably intertwined with consideration of

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the terms of the labor contract," Allis-Chalmers, 471 U.S. at 213, or,

as the Court expressed in an alternative formulation, when application

of state law to a dispute "requires the interpretation of a collectivebargaining agreement," Lingle v. Norge Div. of Magic Chef, Inc., 486

U.S. 399, 413 (1988). Accordingly, "it is the legal character of a

claim, as `independent' of rights under the collective-bargaining

agreement (and not whether a grievance arising from`precisely the

same set of facts' could be pursued) that decides whether a state cause

of action may go forward." Livadas, 512 U.S. at 123-24 (internal citation omitted).

We had occasion to define yet further the circumstances when

§ 301 preempts a state law claim in McCormick v. AT&T Technologies, Inc., 934 F.2d 531 (4th Cir. 1991). In McCormick, we held that

determination of an employer's right to empty an employee's locker

required interpretation of the relevant collective-bargaining agreement

and, therefore, that § 301 preempted the employee's state law tort

claim based on the locker incident. In doing so, we held that "[s]tate

tort claims are preempted where reference to a collective bargaining

agreement is necessary to determine whether a `duty of care' exists

or to define `the nature and scope of that duty . . . .'" Id. at 536 (quoting IBEW v. Hechler, 481 U.S. 851, 862 (1987)). We noted that,

although the collective-bargaining agreement at issue did not delineate the employer's rights with respect to employee lockers, the preemptive force of § 301 was sufficient to support a broad construction

of the meaning of a collective-bargaining agreement to be "a generalized code to govern a myriad of cases which the draftsman cannot

wholly anticipate." McCormick, 934 F.2d at 536 (quoting United

Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S.

574, 578 (1960)).

With these principles in hand, we now turn to the case before us.

III

The first count of Davis' complaint alleges a breach of both the

collective-bargaining agreement and the agreement settling a grievance filed under the collective-bargaining agreement. To the extent

that this breach of contract claim rests on the collective-bargaining

agreement itself, § 301 of the LMRA clearly preempts the claim. See

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Teamsters Local 174 v. Lucas Flour Co., 369 U.S. 95, 102 (1962).

For the reasons that follow, we also believe that her claim for breach

of the settlement agreement depends on rights conferred by the

collective-bargaining agreement and is therefore preempted.

The collective-bargaining agreement established, among other

things, Davis' conditions of employment with Bell Atlantic and

directly controlled Bell Atlantic's original dismissal of Davis for

absenteeism and tardiness. The collective-bargaining agreement provided that Bell Atlantic "will not discuss or attempt to settle" such a

matter without Union participation and requires that any settlement be

reached within the collective-bargaining agreement's grievance procedure. Accordingly, when Davis was first discharged, she filed a

grievance under the collective-bargaining agreement with the assistance of the Union. And in accordance with the procedure specified

in the collective-bargaining agreement, Davis, the Union, and Bell

Atlantic reached a settlement, which all three parties signed. That

agreement's entire vitality and legitimacy thus draws on the underlying collective-bargaining agreement. While the parties to the settlement agreement did waive further grievance procedures, in the

settlement agreement they nevertheless defined the"just cause" necessary for subsequent termination, a restriction on Bell Atlantic's

right to dismiss employees which was established in the collectivebargaining agreement.

Moreover, interpretation of the settlement agreement would require

reference to an interpretation of the collective-bargaining agreement.

The settlement agreement provided that Bell Atlantic would "bridge

the net credited service which [Davis] had accrued prior to termination"; it provided that Davis would maintain"fully satisfactory

dependability as a condition of employment"; and it provided that

Davis was subject to discharge if, during the ensuing 12 months, she

exceeded "six incidental absences or six tardies." All of these terms

relate to the underlying work relationship between Davis and Bell

Atlantic and require reference to the collective-bargaining agreement

for interpretation and application. Defining credited service, satisfactory dependability, and incidental absenteeism or tardies does not

draw on independently established conditions of employment.

While an independent employment contract's mere borrowing of

one or more terms from a collective-bargaining agreement does not

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in itself bring that contract within the scope of§ 301 preemption, see

Marion v. Virginia Elec. & Power Co., 52 F.3d 86, 89 (4th Cir. 1995),

the settlement agreement here was not an independent employment

contract simply borrowing terms from the collective-bargaining

agreement. The Union's collective-bargaining agreement remained in

force to govern Davis' employment relationship except insofar as it

was modified by the settlement agreement. Thus, if during her period

of reemployment, Bell Atlantic imposed a condition of employment

on Davis that conflicted with the collective-bargaining agreement, the

issue could have been pursued through the collective-bargaining

agreements' grievance procedure. The settlement agreement in this

case addressed discipline only for absenteeism and tardiness and thus

may fairly be characterized as a rider to the collective-bargaining

agreement. Cf. Thomas v. LTV Corp., 39 F.3d 611, 618 (5th Cir.

1994) (considering an attendance probation agreement itself to qualify

technically as a collective-bargaining agreement); Stallcop v. Kaiser

Found. Hosps., 820 F.2d 1044, 1048 (9th Cir. 1987) (finding an oral

agreement made in connection with reinstatement to be part of a

collective-bargaining agreement).

Accordingly, the preservation of a uniform federal law of labor

relations under § 301 of the LMRA requires that we recognize the settlement agreement in this case as merely a particular expression of

rights and duties created by a collective-bargaining agreement. For

that reason, § 301 preempts an alleged breach of the Union-negotiated

agreement that settled an employee grievance. See Thomas, 39 F.3d

at 616-18 (holding that § 301 preempts a state wrongful discharge

claim based on violation of an attendance probation agreement

between a union and an employer); Jones v. General Motors Corp.,

939 F.2d 380, 382-83 (6th Cir. 1991) (concluding that § 301 preempts

state law claims for breach of a settlement agreement because "it will

require a court to address relationships that have been created through

the collective bargaining process and to mediate a dispute founded

upon rights created by a CBA"); Stallcop, 820 F.2d at 1048-49 (finding that § 301 preempts state tort claims for breach of a unionnegotiated agreement to reinstate an employee).

Davis' second state law count alleging a West Virginia tort of

wrongful discharge is for similar reasons preempted. Davis alleged

that Bell Atlantic breached implied terms of her employment relation-

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ship that mandate "good faith," "fair dealing," and "just cause for termination." Under West Virginia law, a discharged employee claiming

the tort of wrongful discharge for breach of an employment contract

must prove, among other things, the existence of the employment

contract and the breach of its terms. See Collins v. Elkay Mining Co.,

371 S.E.2d 46, 52 (W.Va. 1988); Cook v. Heck's, Inc., 342 S.E.2d

453, 459 (W.Va. 1986). By definition, therefore, the tort of wrongful

discharge has its roots in the contractual arrangement establishing the

employment relationship. Because the basis of Davis' state tort claim

thus depends on an interpretation of the underlying collectivebargaining agreement, the tort claim alleged in this case is also a matter of federal law and is preempted. See Allis-Chalmers, 471 U.S. at

216-19 ("Because the [state tort claim] not only derives from the contract, but is defined by the contractual obligation of good faith, any

attempt to assess liability here inevitably will involve contract interpretation.").

IV

Davis concedes that once we have found that § 301 of the LMRA

preempts her state law claims, the district court properly entered summary judgment against her for failure to satisfy the applicable statute

of limitations. Accordingly, we affirm.

AFFIRMED

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