* District Judge of the Southern District of Texas, sitting by

designation. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 92-1628

__________________

RICHARD BAKER,

Plaintiff-Appellant,

Cross-Appellee,

versus

FARMERS ELECTRIC COOPERATIVE, INC.

and LAWSON WHITE,

Defendants-Appellees,

Cross-Appellants.

______________________________________________

Appeal from the United States District Court for the

Northern District of Texas

______________________________________________

(September 23, 1994)

Before REAVLEY and GARWOOD, Circuit Judges, and LAKE *

, District

Judge.

GARWOOD, Circuit Judge:

Plaintiff-appellant Richard Baker (Baker) brought a state

court action in Hunt County, Texas, against his employer, Farmers

Electric Co operative, Inc. (Farmers), and Lawson White (White),

ind ividually and as manager of Farmers, alleging intentional

infliction of emotional distress arising from a job reassignment.

Defendants removed the suit to the United States District Court for1 A collective bargaining agreement, which was negotiated

between Farmers and the Union for 1992 and 1993 and became

effective in May 1992, shortly after the state lawsuit was filed,

expressly reclassified Baker as a custodian/yardman at a salary

of $7.64 per hour. As a journeyman lineman, he had earned $16.35

per hour.

2 the Northern District of Texas on the ground that federal labor law

preempted the state law claim because resolution of the action

r equired the interpretation of a collective bargaining agreement

(CBA). The district court denied Baker's motion to remand and

dismissed the action without prejudice for Baker's failure to

exhaust contractual grievance procedures. Baker appeals from this

order; defendants cross-appeal, asserting that the dismissal should

have been with prejudice.

Facts and Proceedings Below

Baker is an employee of Farmers and a member of the

International Brotherhood of Electrical Workers, Local Union No. 59

(the Union). When the events underlying this lawsuit occurred,

Baker was a member of the Union and he was a Farmers' employee

covered by a CBA between Farmers and the Union; at Farmers, he was

a journeyman lineman and had held that position for fourteen years.

In early 1992, White, the general manager of Farmers, assigned to

B aker the duties of a custodian/yardman. 1 Baker's duties as a

custodian/yardman include sweeping the warehouse and driveway,

mowing the yard, and cleaning the bathrooms and breakrooms. He

contends that these duties are demeaning and cause him physical and

emotional distress.

Baker alleges in his state cou rt petition that he was

r eclassified to the maintenance position in retaliation for2 Defendants explain that in early 1992, Farmers' insurance

carrier notified them that Baker was uninsurable due to his poor

driving record. The 1990-1992 CBA assigned Baker, as a

journeyman lineman, various "on call" duties, such as responding

to electrical service disruptions, downed power lines, and other

emergencies; employees who were "on call" were permitted to use

Farmers' trucks. Farmers would not allow Baker to drive its

trucks after he became uninsured and asserts that therefore Baker

was no longer qualified to perform all of the duties of a

journeyman lineman.

The 1992-1993 CBA added a provision allowing the termination

of employees who failed to meet the requirements of Farmers'

fleet insurance policy. Because Baker was "grandfathered" out of

the termination provision, he was permanently reassigned to a

lower paying job rather than being terminated.

3 participating in an arbitration against Farmers; that arbitration

is unrelated to this matter. Following the completion of the

arbitration, defendants informed him that he could no longer drive

a company truck. According to Baker, driving a truck was not a

condition of employment as a journeyman lineman. 2 He claims that

the defendants are intentionally trying to force him to resign by

making his work environment unpleasant. Baker has filed an unfair

labor practice charge against Farmers with the National Labor

Relations Board.

Defendants claim that Farmers acted within its legal rights in

reassigning Baker, under the terms of the CBA which was in effect

from 1990 to 1992.

On May 8, 1992, Baker filed this action in state court in Hunt

County, Texas, against Farmers and White, individually and as

manager of Farmers, claiming damages for intentional infliction of

emotional distress. Defendants timely removed the action to the

United States District Court for the Northern District of Texas.

As grounds for removal, defendants claimed that resolution of4

Bak er's state tort claim required interpretation of the CBA and

thus the case involved a federal question arising under the

National Labor Relations Act (NLRA), 29 U.S.C. § 141, et seq

., and

the Labor Management Relations Act (LMRA), 29 U.S.C. § 185, et seq

.

On June 11, 1992, Baker moved to remand the action to state

court. Defendants responded. On June 30, 1992, the district court

entered an order denying the motion to remand and dismissing the

action without prejudice. The court determined that resolution of

the dispute depended on B aker's ability to establish either that

his reas signment violated the terms of the CBA which governed

matters of his employment at Farmers or that the CBA was invalid.

The court concluded that the NLRA and the LMRA preempted Baker's

state tort claim and denied his motion to remand.

Upon finding that Baker had failed to exhaust the remedies set

forth in Article 29 of the CBA which required resolution of

disputes arising from the CBA through grievance or arbitration

proceedings, the district court dismissed the action without

prejudice to allow Baker to comply with this requirement.

Discussion

I. Denial of Motion to Remand

A. Claims against Farmers

Preemption is a question of law reviewed de novo

. Galvez v.

Kuhn , 933 F.2d 773, 776 (9th Cir. 1991).

Where removal jurisdiction is predicated on the existence of

a federal question, the federal question generally must appear on

the face of t he plaintiff's complaint. C aterpillar, Inc. v.

Williams

, 107 S.Ct. 2425, 2429 (1 987). The removing defendant's3 It has been said that if issues involving section 301 arise

only as a defense, there is no preemption. "[A] defendant's

reliance on a CBA term purely as a defense to a state law claim

does not result in section 301 preemption." Fox v. Parker

Hannifin Corp. , 914 F.2d 795, 800 (6th Cir. 1990). Here,

defendants assert that, in order to meet his burden of proof on

the state intentional infliction of emotional distress claim,

Baker must rely on the CBA to establish that their actions in

reassigning him to the maintenance position were extreme and

outrageous; thus their dependence on the CBA for removal purposes

is not purely defensive.

4 Other grounds for preemption by federal labor laws exist.

In Farmer v. United Brotherhood of Carpenters and Joiners , 97

S.Ct. 1056 (1977), the Supreme Court discussed the general rule

governing preemption in the labor law area. This rule removes

from state regulation activities which are protected by section 7

of the NLRA, or which constitute an unfair labor practice under

section 8. Farmer , 97 S.Ct. at 1061 (quoting San Diego Bldg.

Trades Council v. Garmon , 79 S.Ct. 773, 779 (1959)). One

exception to this rule, where preemption does not apply, occurs

where the activity at issue is peripheral to the labor concerns.

Id

. Baker argues that this case is governed by Farmer , which

5 interjection of a federal defense is normally insufficient to

remove the case. I d

. at 2430. One exception to this rule,

however, occurs where an area of state law has been completely

preempted by federal law. I d

. Controversies involving collective

bargaining agreements, where section 301 of the LMRA, 29 U.S.C. §

185(a), provides the grounds for preemption, constitute such an

area of preemption. 3 I d

. at 2430-31; Lingle v. Norge Div. of Magic

Chef, Inc. , 108 S.Ct. 1877 (1988).

Defendants removed this action to federal court on the grounds

that resolution of Baker's intentional inflic tion of emotional

distress claim required interpretation of the CBA. This claim

impli cates preemption under section 301 of the LMRA, which vests

jurisdiction in the federal courts to hear claims for violation of

labor contracts. 4concerned a state law claim for intentional infliction of

emotional distress based on allegations of discrimination in

employment referrals, personal abuse, and harassment. The Court

declined to preempt the state claim on the grounds that the tort

issue could be adjudicated without resolution of an underlying

labor dispute, and because the potential interference with

federal concerns was insufficient to counterbalance the

legitimate and substantial state interest in protecting its

citizens. 97 S.Ct. at 1065.

Although Farmer noted the existence of section 301

preemption, it did not address that preemption in the context of

the facts before it. Id . at 1062 n.8. We have interpreted

Farmer 's stance on preemption of emotional distress claims

narrowly. Brown v. Southwestern Bell Tel. Co. , 901 F.2d 1250,

1256 (5th Cir. 1990) (" Farmer does not hold that claims for

intentional infliction of emotional distress are never preempted

by the federal labor laws, but rather that such claims may escape

preemption when they relate only peripherally to federal

concerns."). Even assuming that Garmon preemption as discussed

in Farmer applies to section 301 cases, the case before us

differs substantially from Farmer in that Baker's state tort

claim cannot be adjudicated without reliance on the CBA.

6 "Section 301 not only gives federal courts jurisdiction

to hear employment cases covered by collective bargaining

agreements, but als o directs them to fashion a body of

federal common law to resolve such disputes, and preempts

any state law claims which require the interpretation of

a colle ctive bargaining agreement." J ackson v. Kimel

, 992 F.2d 1318, 1325 (4th Cir. 1993) (internal citations

omitted).

The purpose behind section 301 preemption is to ensure that issues

raised in actions covered by section 301 are decided in accordance

with the precepts of federal labor policy. A llis-Chalmers Corp. v.

Lueck

, 105 S.Ct. 1904, 1910 (1985) (quoting Teamsters v. Lucas

Flour Co. , 82 S.Ct. 571, 576 (1962)).

In Lueck

, the Supreme Court recognized that the c overage of

section 301 extends beyond contract claims for breach of a labor

agreement to include state tort claims which require analysis of a

labor contract:

"If the policies that animate § 301 are to be given their

proper range, however, the pre-emptive effect of § 3017

must extend beyond suits alleging contract violations.

These policies require that `the relationships created by

[a collective-bargaining] agreement' be defined by

application of `an evolving federal common law grounded

in national labor policy.'

. . . Thus, questions

relating to what the parties to a labor agreement agreed,

and what legal consequences were intended to flow from

breaches of that agreement, must be resolved by reference

to uniform federal law, whether such questions arise in

the context of a suit for breach of contract or in a suit

alleging liability in tort." L ueck

, 105 S.Ct. at 1911

(internal citations omitted).

A s tate tort claim is preempted by section 301 if "evaluation of

the tort claim is inextricably intertwi ned with consideration of

the terms of the labor contract." Id , at 1912.

The Court revisited the issue of preemption of state claims in

Lingle v. Norge Div. of Magic Chef, Inc. , 108 S.Ct. 1877, 1885

(1988), holdin g that application of state law is preempted by

section 301 only if such application requires the interpretation of

a CBA. "[I]f the resolution of a state-law claim depends upon the

meaning of a collective-bargaining agreement, the application of

state law

. . . is pre-empted and federal labor-law principles

. .

. must be employed to resolve the dispute." Id . at 1881.

The Lingle Court found that preemption was not required on the

facts before it. The plaintiff's allegations concerned retaliatory

discharge, a claim re quiring proof that (1) the plaintiff was

discharged or thr eatened 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. The Court decided that neither the

elements of the plaintiff's case nor the defense of proving a

nonretaliatory motive for discharge required the interpretation of8

any term of a CBA, although some of the factual inquiries under the

state claim might be similar to those under section 301:

"[E]ven if dispute resolution pursuant to a collectivebargaining 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 § 301 preemption purposes." Lingle , 108 S.Ct. at 1883.

Thus the critical inquiry concerns the necessity of looking to

the terms of a CBA to resolve the state law claim. "Section 301

governs claims founded di rectly on rights created by collectivebargaining agreements, and also claims `substantially dependent on

analysis of a collective-bargaining agreement.'" C aterpillar, Inc.

v. Williams

, 107 S.Ct. at 2431 (quoting Electrical Works v.

Hechler , 107 S.Ct. 2161, 2166-2167, n.3 (1987)).

Baker claims that h is claims for intentional infliction of

emotional distress are purely state law claims which are not

preempted by federal labor law. He asserts that, as the CBA does

not expressly address intentional torts, resolution of his claims

does not require interpretation of the CBA.

For Baker to s ustain his claim of intentional infliction of

emotional distress under Texas law, h e must prove that: (1) the

defendants acted intentionally or recklessly; (2) the defendants'

conduct was extreme and outrageous; (3) the defendants' actions

caused Baker emotional distress; and (4) Baker's emotional distress

was severe. Tidelands Auto. Club v. Walters , 699 S.W.2d 939, 942

(Tex. App. SQ

Beaumont 1985, writ ref'd n.r.e .) (citing R E STATEMENT

(S ECOND ) OF T ORTS § 46 (1965)).

Baker does not allege that any action on the part of the5 Indeed, counsel for Baker conceded at oral argument of this

matter that we must look to the CBA for resolution of the

"extreme and outrageous" element of the state tort claim. He

argued, however, that while relevant, the CBA was not

determinative and thus the tort claim was not preempted.

9 defendants other than his reassignment to a maintenance p osition

has caused him mental distress. He alleges no instances of

harassment, discrimination, physical abuse, or other conduct which

would provide grounds for an emotional distress claim.

Baker must prove, as an element of his claim of intentional

infliction of emotional distress, that the defendants' actions in

reassigning him were extreme and outrageous. The terms of the CBA

are relevant to this issue, because the CBA expressly grants

management rights over th e business of Farmers and its employees

which could be interpreted to include the right to reassign an

employee's duties. 5 Article Five of the CBA provides:

"A. It is expressly agreed and understood that, except

as otherwise provided in this Agreement and by law, the

Cooperative [Farmers] retains the sole right to manage

the affairs of the business and to direct the working

for ces thereof and shall have the exclusive right of

selection, di rection and determination of size of the

work force

. . . . The enumeration herein of

management's rights shall not be deemed to exclude other

functions not specifically set forth. The Cooperative,

therefore, retains all rights, powers, prerogatives, and

authorities not otherwise speci fically abridged,

delegated or modified by this Agreement. The Cooperative

reserves the sole right to judge the skill and/or ability

of any employee."

Because construction and understanding of the t erms of the

CBA, particularly those governing Farmers' rights to reassign its

employees, are unavoidably and inextricably intertwined with

resolution of the question whether defendants' conduct in

reassigning Baker was extreme and outrageous, a necessary element10

of Baker's state law claim, the district court properly held that

his state tort claim was preempted by section 301.

The pro priety of the district court's action is revealed by

examination of other cases involv ing a claim for intentional

infliction of emotional distress, where the question of preemption

turns on whether the conduct upon which the c laim is grounded is

governed by the CBA. If the agreement would not condone the

activity, there is no preemption. If the conduct arises out of

activities covered in the agreement, however, courts generally hold

that the emotional distress claim is preempted.

In Brown v. Southwestern Bell Tel. Co.

, 901 F.2d 1250 (5th

Cir. 1990), we upheld a finding of preemption and affirmed summary

judgment for Southwestern Bell (Bell) where the emotional distress

claim turned on the circumstances under which Bell could or could

not discharge an employee. The plaintiff, Brown, sued Bell, his

employer, in state court for denial of disability benefits and

subsequent discharge. Brown alleged, i nter alia

, that Bell

intentionally caused him emotional distress when it forced him to

choose between losing his job and returning to work, despite his

claimed inability to work for medical reasons.

Bell removed the action on basis of jurisdiction under ERISA

and the LMRA and moved for summary judgment. The district court

denied Brown's mo tion to remand and entered summary judgment for

Bell, concluding that the intentional infliction of emotional

distress claim arose out of the denial of disability benefits and

was therefore preempted by ERISA.

This Court, in addressing the intentional i nfliction of11

emotional distress claim, did not reach the issue of ERISA

preemption because it concluded that the claim directly implicated

the concerns addressed by the LMRA. B rown

, 901 F.2d at 1255. The

Court reasoned that because Brown was essentially c laiming that

Bell could not fire him while he was absent from work for medical

reasons, resolution of his claim would requir e interpretation of

the CBA and was thus preempted by section 301 of the LMRA. I d

. at

1255-1256.

Although the facts underlying Baker's claims differ slightly

from those in Brown

, at issue in each case is the authority of the

employer, as set forth in a CBA, to take certain actions affecting

the plaintiff's job. Because the terms of the CBA are relevant to

the resolution of the state tort claim, section 301 preempts those

state tort claims.

Similarly, in Strachan v. Union Oil Co.

, 768 F.2d 703 (5th

Cir. 1985), we affirmed the preemption of state tort claims arising

from the suspension and drug testing of two employees who were

later restored to full employment following negative testing

results. We found preemption proper because the employer had the

power under the CBA to require medical examinations when there was

concern regarding the physical condition of its employees. I d

. at

705. S ee also Bagby v. General Motors Corp.

, 976 F.2d 919, 921-922

(5th Cir. 1992) (claim for intentional infl iction of emotional

distress allegedly caused by suspen sion and escort from factory

were preempted because acts which were claimed to be tortious were

"unquestionably taken in accordance with provisions of the CBA").

The Ninth Circuit has addressed preemption by section 301 of12

claims of intentional infliction of emotional distress in a number

of cases. In each of these cases, where the allegedly tortious

conduct could not have been sanctioned by the CBA, for example in

cases concerning assault and battery or sexual harassment, no

preemption occurs. Where the conduct may reasonably be deemed

covered by the CBA, however, as in assignment of duties or

representation by a Union, section 301 does preempt state tort

claims.

The case of Perugini v. Safeway Stores, Inc.

, 935 F.2d 1083

(9th Cir. 1991), provides a good example of the distinction between

conduct i n side and conduct outside the scope of a CBA. In

Perugini

, the court affirmed the trial court's finding of

preemption of emotional distress cl aims based on an employer's

refusal to honor a pregnant employee's request for light duty and

a union's failure to represent the employee, reasoning that the

claims required interpretation of the CBA. In contrast, the court

reversed the trial court's finding of preemption of the employee's

e motional distress claims which were based on alleged

discrimination and harassment of the employee by her employer and

union, on the ground that these claims did not implicate the CBA.

Other circuits have recognized this s ame dichotomy. F ox v.

Parker Hannifin Corp.

, 914 F.2d 795 (6th Cir. 1990), concerned a

wrongful discharge action. The plaintiff alleged harassment at

work and also outside the workplace. She claimed to have suffered

emotional distress, not as a result of her termination, but rather

as a result of the har assment from her co-workers. The Sixth

Circuit distinguished between conduct based on the CBA and conduct6 See also Jackson v. Kimel , 992 F.2d at 1325-1327

(intentional infliction of emotional distress claim arising from

sexual harassment by co-worker not preempted because CBA could

not lawfully authorize alleged behavior); McCormick v. AT & T

Technologies, Inc. , 934 F.2d 531, 537 (4th Cir. 1991), cert.

denied , 112 S.Ct. 912 (1992) (intentional infliction of emotional

distress claim stemming from employer's disposal of contents of

his locker preempted because resolution of claim would be

substantially dependent on analysis of CBA); Knafel v. Pepsi Cola

Bottlers, Inc. , 850 F.2d 1155, 1162 (6th Cir. 1988) (affirming

summary judgment for employer on claim that conditions of

employment were calculated to intentionally cause employee

emotional distress because claim required analysis of CBA;

plaintiff claimed actions taken by employer were in retaliation

for participation in prior civil rights action); Douglas v.

American Information Technologies Corp. , 877 F.2d 565, 571-573

(7th Cir. 1989) (intentional infliction of emotional distress

claim stemming from work assignments and denials of excused work

preempted because claim required determination of whether

employer's conduct was authorized by CBA); Galvez v. Kuhn , 933

F.2d 773 (9th Cir. 1991) (claims for intentional infliction of

emotional distress based on assault and battery and racial slurs

were not preempted by section 301); Tellez v. Pacific Gas & Elec.

Co. , 817 F.2d 536 (9th Cir.), cert. denied , 108 S.Ct. 251 (1987)

(claims for intentional infliction of emotional distress based on

circulating to other employees letters concerning suspension of

employee for allegedly purchasing drugs on the job were not

preempted where CBA was silent on work conditions and vague on

disciplinary formalities and did not regulate suspension

letters).

13 outside the scope of the agreement.

"Although state law claims for intentional infliction of

emotional distress strictly based upon a defendant's

exercise of CBA rights do not escape the preemptive force

of s ection 301, such claims premised upon abusive

behavior above and beyo nd the routine exercise of CBA

rights are not preempted." Id ., 914 F.2d at 802

(internal citations omitted).

The court held that the emotional distress claim was not preempted

because the all egations arose from abuse endured while the

plaintiff was employed, and from conduct which was not authorized

or even contemplated by the CBA, rather than from her termination. 6

That the defendants' action may have been taken in retaliation

for Baker's participation in the prior arbitration does not defeat14

section 301 preemption. Cases in which intentional infliction of

emotional distress claims are found to be preempted imply that the

intent with which the alleged tort is performed is not a

determinative factor in preemption analysis. S ee, e.g., Knafel v.

Pepsi Cola Bottlers, Inc.

, 850 F.2d 1155, 1160-1162 (6th Cir. 1988)

(finding preemption of emotional distress claim without discussing

alleged retaliatory motive).

Indeed, the fact that Baker alleges retaliatory action as the

motivation for his reassignment supports a finding of section 301

preemption. The purpose of preempting claims based on a violation

of a labor contract is to secure the development of a uniform body

of federal labor policy. This purpose is furthered when state

torts alleged to have been committed in retaliation for exercising

rights granted under a CBA, such as arbitra tion, are heard by a

federal court applying federal labor law. While such retaliation

as Baker alleges is not itself a wrong under state tort law, it may

constitute an unfair labor practice actionable under federal labor

law. Thus, even the question of the intent behind Baker's

reassignment implicates questions of federal labor law and is

related to the CBA and Baker's rights under CBA.

Because Baker's claim requires analy sis of the CBA to

determine whether the defendants' actions in reassigning him to the

maintenance position were e x treme and outrageous, a necessary

element of his state law claim, his claims against Farmers are

preempted by section 301. The district court did not err in

denying his motion to remand.15

B. Claims against White

Baker claims on appeal that the district court abused its

discretion in not remanding the claims asserted against White

individually and as manager of Farmers. Because these claims arise

out of the same facts and circumstances as those asserted against

Farmers, however, removal of Baker's claims against White was

appropriate under the district court's exercise of pendent

jurisdiction.

The recently enacted 28 U.S.C. § 1367, which in many respects

codifies the case law doctrine of pendent jurisdiction, provides

that the district courts

"shall have supplemental jurisdiction over all other

claims that are so related to claims in the action within

[the original jurisdiction of the distr ict court] that

they form part of the same case or controversy under

Article III of the United States Constitution."

This pendent jurisdiction may continue even after the federal

claims upon which jurisdiction is based have been dismissed or

rendered moot. H efner v. Alexander

, 779 F.2d 277, 281 (5 th Cir.

1985). Removal jurisdiction may properly be exercised over pendent

state claims in the context of federal labor law. See Jackson v.

Southern California Gas Co.

, 881 F.2d 638, 641-642 (9th Cir. 1989)

(district court had jurisdiction on removal to address state claims

which could have been brought originally in the district court as

pendent to claim for breach of collective b argaining agreement

governed by section 301).

Baker has not asserted any claim against White or Farmers

other than the emotional distress claim arising from his change in

job assignment. The only conduct at issue is White's reassignment16

of Baker from journeyman lineman to custodian/yardman; Baker does

not claim that White harassed, assaulted, or discriminated against

him, nor does he argue that White's actions in reassigning him were

outside the scope of White's authority as manager of Farmers.

Baker's claims against White are essentially identical to his claim

against Farmers and form part of the same case or controversy. The

district cour t properly exercised its pendent jurisdiction in

removing the claims against White.

In addition, we hold that removal of the claims asserted

against White, individual ly and as manager of Farmers, was

appropriate on the facts before us under the doctrine of section

301 preemption.

Baker sued White in both his individual and official

capacities, but it is evident that Baker does not claim any

personal motivation on the part of White in reassigning him to the

maintenance position. The motivation alleged, that of retaliation

for participating in the arbitration, is related t o White's

employment with Farmers. Likewise, the action claimed to be

tortious, the actual reassignment, also stems from White's position

as manager of Farmers. In sum, White's reassignment of Baker, the

sole ground for Baker's tort claim, was a company action.

If a plaintiff were allowed to bypass preemption of his state

claim against his employing company by asserting an identical claim

against the company 's chief executive, section 301's policy of

developing a cons istent body of federal labor law would be7 By this we do not intend that all claims raised against a

fellow employee or supervisor should be preempted; for example,

claims arising out of conduct which is unrelated to the work

environment or which involve actions not within the scope of

employment or not in furtherance of the employer's business may

still escape the reaches of section 301 preemption whether

asserted against an employer or a fellow employee. See Jackson

v. Kimel , 992 F.2d at 1325-1327 (emotional distress claim, based

on alleged sexual harassment, asserted against fellow employee

not preempted by section 301 on ground that interpretation of CBA

not required to resolve tort claim).

17 eviscerated. 7

In cases involving claims against fellow employees where the

question of section 301 preemption has arisen, courts have governed

their determinations on the preemption by the necessity of

referring to a CBA for resolution of the claim rather than by the

individual status of the defendant. In B rown v. Southwestern Bell

Tel. Co.

, we held that intentional infliction of emotional distress

claims asserted against two supervisors were preempted because the

claims were "'inextricably intertwined with the terms of

. . . [a]

labor contract.'" 901 F.2d at 1256 (quoting Allis-Chalmers Corp.

v. Lueck

, 105 S.Ct. at 1912). The fact that two of the defendants

were individuals employed by Southwestern Bell was not a factor in

our de cision. S ee also Knafel v. Pepsi Cola Bottlers, Inc. 850

F.2d at 1160-1162 (affirming preemption of claims ag ainst

defendants, including individual employees, on basis of CBA,

without discussion of individual status); Perugini v. Safew a y

Stores, Inc. 935 F.2d at 1088-1089 (preemption discussion revolving

around reference to CBA rather than status of defendants). B ut see

Jackson v. Kimel

, 992 F.2d at 1328-1329 (Phillips, J., concurring)

(suggesting that claim against supervisor should not be preempted8 This remedy was found adequate in Int'l Union, United Mine

Workers v. Covenant Coal Corp. , 977 F.2d 895, 897-899 (4th Cir.

1992), where the Fourth Circuit held that section 301 barred a

federal cause of action for tortious interference with contract

against an entity not a party to the contract, but at the same

time held that section 301 preempted an identical state law

claim. Id . at 899.

9 We note that Baker's claims against White, in his official

capacity as manager of Farmers, may also be preempted for the

same reasons as his claims against Farmers. As defined in both

the NLRA and the LMRA, an employer includes "any person acting as

an agent of an employer, directly or indirectly . . . ." 29

U.S.C. § 152(2) (1993 Supplement). White, as manager for

Farmers, was thus an employer for purposes of determining whether

the claims against him were preempted by section 301.

18 because of his individual status).

Preemption of Baker's emotional distress claims against both

Farmers and White leaves him with the alternative of pursuing the

remedies available through the grieva nce procedures set forth in

the CBA; Baker has already filed an unfair labor practice charge

with the National Labor Relations Board. 8 In these procedures, his

potential remedies are against Farmers, not White. As Baker does

not allege that White did anything but act for the company,

however, this result is not inappropriate. A company can act only

through the individuals it employs. In situations where, as here,

state tort claims against a fellow employee allege nothing but

company action, allowing a plaintiff to pursue those claims in

state court would destroy the protections provided by section 301. 9

II. Dismissal Without Prejudice

This Court reviews the district court's order of dismissal de

novo

. H ickey v. Irving Indep. School Dist.

, 976 F.2d 980, 982 (5th

Cir. 1992).

The district court recognized that Baker had failed to comply19

with the grievance/arbitration procedures required by the CBA and

dismissed the action without prejudice for failure to exhaust his

available remedies. Defendants cross-appeal from this dismissal,

claiming that it should have been with prejudice. Baker claims

that, because an arbitrator has no authority to address matters not

addressed by the CBA, and because the CBA does not address

intentional torts , arbitration pursuant to Article 29 of the CBA

could not provide redress for his emotional distress claims.

It is clear that Baker's claims were properly dismissed for

failure to exhaust the grievance procedures in the CBA. Republic

Steel Corp. v. Maddox

, 85 S.Ct. 614, 616 (1965) ("As a general rule

in cases to which federal law applies, federal labor policy

req u ires that individual employees wishing to assert contract

grievances must attempt use of the contract grievance procedure

agreed upon by employer and union as the mode of redress.")

(original emphasis); Strachan v. Union Oil Co. , 768 F.2d 703, 704

(5th Cir. 1985) ("The law is completely clear that employees may

not resort to state tort or contract claims in substitution for

their rights under the grievance procedure in a collect ive

bargaining agreement."). Therefore the only question is whether

this dismissal should have been with or without prejudice.

Defendants argue that the dismissal should have been w ith

prejudice because Baker did not file a grievance within the time

allowed by the CBA and has thus " w aived" his rights to his

administrative remedies. Article 29 of the CBA directs that

grievances "shall be initiated under

. . . within five (5) working

days after the date of the occurrence on which they are based and10 Other courts have allowed dismissal without prejudice,

without much discussion of the propriety of such a dismissal and

without any indication that the plaintiff would be time-barred

from pursuing his administrative remedies. See Wagner v. General

Dynamics , 905 F.2d 126 (6th Cir. 1990) (affirming, without

discussion of prejudice issue, dismissal without prejudice for

failure to exhaust internal union appeals procedures); Ritza v.

Int'l Longshoremen's & Warehousemen's Union , 837 F.2d 365, 368

n.3 (9th Cir. 1988) ("The court's order does not say that the

dismissal of the section 301 claims is without prejudice, but

specifically states that dismissal of the Title VII claims is

with prejudice. From this we assume that the court intended, as

it should have, to dismiss the section 301 claim without

prejudice.") (original emphasis); Chube v. Exxon Chemical

Americas , 760 F.Supp. 557, 562 (M.D. La. 1991) ("Because there is

an arbitration proceeding currently pending between the parties,

the Court finds that the plaintiff has failed to exhaust his

administrative remedies. Consequently, the plaintiff's action

for wrongful termination is premature and must be dismissed

without prejudice.").

20 not thereafter."

In Seniority Research Group v. Chrysler Motor Corp.

, 976 F.2d

1185 (8th Cir. 1992), the Eighth Circuit faced but did not reach an

argument almost identical to the one in the instant case. There

the United Auto Workers Union argued that dismissal for failure to

exhaust intra-union remedies should have been with prejudice,

because the plaintiffs were time bar red from pursuing an interunion appeal. Although the court declined to address that

contention, because it had not been briefed, it stated: "The

normal consequence of a holding that a plaintiff has failed to

exhaust intra-union remedies is a dismissal without prejudice. The

plain tiff, once these remedies are exhausted, if complete relief

has not been obtained, can return t o court." I d

., 976 F.2d at

1189. 10

While we agree that the district court's dismissal of Baker's

state tort claim does not preclude him from pursuing any remedies11 In allowing Baker to pursue contractual remedies, we make no

determination whether those remedies are still available to him

after this lapse in time.

21 provided him by the CBA, we determine that the district court's

conclusion that those tort claims are preempted by section 301 is

f inal and should not be relitigated. 1 1 Baker may not refile his

intentional infliction of emotional distress claim in state court,

nor may he bring it in federal court under the federal labor laws,

as he has not exhausted grievance procedures.

A c cordingly, we modify the district court's dismissal of

Baker's cl aims of intentional infliction of emotion distress to

dismissal with prejudice, except that the judgment sh all not

prejudice what rights Baker may have to pursue any remedies

provided by the CBA or other contract.

Conclusion

For the reasons stated above, the order of the district court

denying Baker's motion to remand this action to state court is

AFF I RMED. The dismissal of the action is MODIFIED to be a

dismissal with prejudice, except that the judgment shall not

p rejudice whatever rights Baker may have to pursue contractual

remedies.

AFFIRMED AS MODIFIED