1 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:

M ichael 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'

individ ual attendance probation agreement is treated in the same

man ner 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

wro ngful 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 United2

Automobile, Aerospace and Agricultural Implement Workers of

America, Local Union 848 ("UAW" or "Unio n"), which maintained a

collective-bargaining agreement ("CBA") with LTV. The CBA

contained the terms and conditions of employment fo r 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

b oth 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 his3

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 1 992, 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 Labor4

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 barre d 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 limit ations. 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

disch arge 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 upon5

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 clai ms over which the district court has original

jurisdiction;

(3) the distr ict 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 other6

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. S ee id. at 160-61. The district court

retained jurisdiction to vacate its remand order; likewise, this

Court has jurisdiction to hear this appeal. S ee 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); s ee 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 e stablishes the absence of a

genuine issue of material fact and that the movant is entitled to

judgment as a matter of law. S ee 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. I d.

An issue is "material" if it involves a fact that might affect the7

outcome of the suit und er the governing law. S ee 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. W ells 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 o f 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. L andry

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 contra cts 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. L ocal 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. U nited Steelworkers v. Rawson,

495 U.S. 362, 369, 110 S.Ct. 1904, 1909, 109 L.Ed.2d 362 (1990);8

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 con tract 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 L ingle,

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 must9

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 ma intained with LTV. The APA

allegedly superseded any contr ary provisions in the CBA and

governed the conditions of Thomas' continued employment. According

to the terms of t he 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 woul d be considered "final" and

"without recourse to the grievance and arbitrat i on 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 consider ed when determining

whether Thomas was meeting the attendance requirements of the APA.

From this, Thomas asserts that th e agreement defines terms

particular only to him as a stand-alone contract, only tangentially

relating to the CBA.10

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 independen t or superseding contract,

arguing that it was part and parcel of the CBA because all parties

were adequ ately 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 Orl eans Public Serv., Inc., 730 F.2d 359

(5th Cir.1984), this Court held that a union employee's claim for

breach of a s eparate individual employment contract would be

analyzed for LMRA preemption purposes just as a

collective-bargaining agreement would be. I d. at 364. In that

case, the employee contended that he was advised, at the time of

his hiring, that a lineman su ffering work-related injuries would

receive full co mpensation 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-bargaini ng 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 so1 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 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. I d. 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 emp loyment, 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, man ifesting 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 settlement12

of disputes by negotiation between an e mployer and the

representative of his employees. S ee Un ited 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." U nited Steelworkers v

.

Warrior & Gulf Na vigation 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 conditione d upon his acceptance. When

agreeing to the attendance requirements as a condition to his

continued employment, Thomas also waived grievance or arbitration13

proceedings related to his attendance, which would presumably

otherwise apply under the CBA. The CBA identifies LTV's continuing

a uthority 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, specifica lly 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 towar d 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 a n on-the-job injury is required. Consequently,14

resolution of these claims are substantially dependent upon an

analysis of the terms of the APA, a c ollectively-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 handli ng 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, ho wever, 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.

L ikewise, in B urgos v. Southwestern Bell, 20 F.3d 633 (5th15

Cir.1994), the employee's family brought an action for intentional

i n fliction of emotional distress based on Southwestern Bell's

treatment of the employee, despite its k nowledge 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 te r minated 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. B urgos, 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 unde r 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 was16

preempted by section 301. LTV presented Thomas' deposition

testimony to support its motion for summary judgment. In his

deposition, Thomas repeated ly 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 L ingle 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

dis charge, a claim requiring proof that (1) the plaintiff was

discharged or threatened with discharge, an d (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 s tate

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 policy17

and the Hawaii whistleblower act. The Court contrasted the

employee's claim with one that was preempted because it was "firmly

rooted in a br each 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 collectiv e-bargaining agreement will be consulted in

the course of state-law liti gation plainly does not require the

claim to be extinguished." L ivadas 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 f iling of a workers'

compensation clai m was a reason for his discharge. S ee 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 his18

dismissal. S ee Trevino v. Corrections Corp. of Am., 850 S.W.2d

806, 808 (Tex.App.—El Paso 1993, writ denied); General Elec. Co.

v. Kunz e, 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. T exas 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: M

edrano v. Excel Corp., 985 F.2d 230 (5t h 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 R oadway Express, the employer claimed that, at

depos ition, the employee "explicitly state[d] that the basis for

his Article 8307c claim expressly involves a misinterpretation of

a provision of the collective bargaining ag reement...." 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...." M edrano, 985 F.2d at 233. Further, the19

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 C BA ... 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 A nderson

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 i n the APA; although given the opportunity,

Thomas never claimed any other basis for his claim. Neither during

oral argument n or 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

Thoma s maintains that the district court erred in applying20

the six-month statute of limitations applicable to "hybrid" section

301 claims because he never sued the UAW. Thomas asserts that his

c laims, 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, 48 8 U.S. 319, 328, 109 S.Ct. 621,

627, 102 L.Ed.2d 665 (1989); s ee also DelCostello v. International

Bhd. of Tea msters, 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 ma y not sue his employer under section 301 until

completion of the proceeding. D aigle v. Gulf States Utilities Co.,

Local 2286, 794 F .2d 974, 977 (5th Cir.), c ert. 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's2 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 bre ach of its duty of fair representation. I d. 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 t o 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, re presentatives 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 t here was some

breach of fair representation by the UAW. Consequently, the only

federal claims that Thomas could assert against LTV based on the22

interpretation and application of the APA were hybrid section

301/fair representation claim s, regardless of whether or not the

UAW was joined as a party.

Thoma s 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.