UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JERRY R. PAPA,

Plaintiff-Appellant,

v. No. 97-1451

TRULAND SYSTEMS CORPORATION,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

T. S. Ellis, III, District Judge.

(CA-97-94-A)

Submitted: July 31, 1998

Decided: August 25, 1998

Before HAMILTON and WILLIAMS, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

Alan J. Cilman, Fairfax, Virginia, for Appellant. Christopher G.

Mackaronis, Laura C. Fentonmiller, BELL, BOYD & LLOYD,

Washington, D.C., for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Jerry R. Papa claims that his employer, Truland Systems Corporation (Truland), discharged him in retaliation for complaining about

the terms of his contract. Specifically, Papa claims that in terminating

him Truland committed the state law torts of wrongful termination,

defamation, intentional infliction of emotional distress, and negligence. The district court found that Papa's claims are preempted by

the National Labor Relations Act (NLRA), 29 U.S.C.§§ 151-169

(1994), and the Labor Management Relations Act (LMRA), 29 U.S.C.

§ 185 (1994). We affirm the district court's order granting Truland's

motion to dismiss the complaint.

Papa worked for Truland as a journeyman electrician pursuant to

a contract between Truland and the International Brotherhood of

Electrical Workmen Local 26 (IBEW). According to the terms of his

contract, Truland agreed to pay Papa for work done eight hours a day,

five days a week, and agreed to pay overtime for any additional work.

As a result of a concession between IBEW and Truland, Truland

agreed to pay Papa for work done ten hours a day, four days a week,

Monday through Thursday, and agreed to pay overtime for work done

on Saturdays and holidays. During Memorial Day week, Truland

advised Papa and his coworkers that instead of working Monday

through Thursday, they would be required to work Tuesday through

Friday, with no overtime pay. Papa told the Union of Truland's position, and the Union took the position that, pursuant to the concession,

Truland had to pay overtime for Friday's work. The following day,

Truland discharged Papa for "low production." Papa claims that this

was a false accusation.

Papa filed a complaint in state court alleging that his termination

constituted an unfair labor practice in violation of the NLRA, 29

U.S.C. §§ 157, 158(a). In addition, Papa averred four state law tort

claims: wrongful termination, defamation, intentional infliction of

emotional distress, and negligence. Truland removed the case to federal district court based on federal question jurisdiction pursuant to 28

U.S.C. § 1441(b) (1994). Truland then moved to dismiss the complaint for failure to state a claim upon which relief could be granted

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pursuant to Fed. R. Civ. P. 12(b)(6). After a hearing, the district court

dismissed the unfair labor practice claim because Papa failed to

exhaust the administrative remedies under the collective bargaining

agreement, as required by § 301 of the LMRA, 29 U.S.C. § 185.

Additionally, the district court dismissed the state law claims because

it found that the claims were preempted by § 301 of the LMRA and

§§ 7 & 8 of the NLRA, 29 U.S.C. §§ 157, 158. Accordingly, the court

dismissed the entire complaint. Papa appeals only the district court's

dismissal of his state law claims.

Appellate courts review de novo dismissals for failure to state a

claim. See Martin Marietta Corp. v. International Telecomm. Satellite

Org., 991 F.2d 94, 97 (4th Cir. 1992). The NLRA preempts claims

based on actions that are "arguably subject" to § 7 or § 8. See San

Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 245 (1959).

There are two exceptions to the preemption principle set forth in

Garmon, 359 U.S. at 243-44. First, preemption is inapplicable when

"the conduct at issue is only a peripheral concern of [the NLRA]."

Local 926, Int'l Union of Operating Eng'rs v. Jones , 460 U.S. 669,

676 (1983) (citing Garmon, 359 U.S. at 243-44). Second, state law is

not preempted to the extent that the conduct at issue "touches on

interests so deeply rooted in local feeling and responsibility that, in

the absence of compelling congressional direction, it could not be

inferred that Congress intended to deprive the State of the power to

act." Jones, 460 U.S. at 676 (citing Garmon, 359 U.S. at 243-44). To

determine whether these exceptions apply, the reviewing court must

balance the state's interest in remedying the effects of the challenged

conduct against both the interference with the Board's ability to adjudicate the controversy and the risk that the state will approve the conduct that the NLRA protects. See Belknap, Inc. v. Hale, 463 U.S. 491,

498-99 (1983).

We agree with the district court that Papa's wrongful termination,

defamation, and intentional infliction of emotional distress claims are

preempted by the NLRA. Papa claims that the real reason for his termination was the fact that he raised the pay issue both with Truland

and with IBEW. (Appellant's Br. at 5). Thus, he is claiming that he

was dismissed "for engaging in labor activities." (Id. at 6). We find

that such conduct is not a peripheral concern of the NLRA and does

not touch on an interest sufficiently rooted in local feeling to fall

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within one of the Garmon exceptions. See Richardson v. Kruchko &

Fries, 966 F.2d 153, 157-58 (4th Cir. 1992); Shane v. Greyhound

Lines, Inc., 868 F.2d 1057, 1061 (9th Cir. 1989). His remaining state

law tort claims are based on the same conduct as his wrongful discharge claim and are simply "artfully pleaded unfair labor practice

charges." Richardson, 966 F.2d at 158. We affirm the district court's

dismissal of these claims.

Papa's final claim is for negligence. On appeal, Papa only speaks

to the question of whether this claim was sufficiently pled. Because

no argument is made challenging the district court's finding that this

claim was preempted, we affirm that finding.

With regard to preemption under § 301 of the LMRA, Papa only

asks this court to clarify the ruling in Willis v. Reynolds Metals Co.,

840 F.2d 254 (4th Cir. 1988). In Willis, this Court specifically distinguished Linn v. United Plant Guard Workers, 383 U.S. 53 (1966), and

Farmer v. United Brotherhood of Carpenters and Joiners, Local 25,

430 U.S. 290 (1977), the two cases Papa relies upon in asking for

clarification of Willis. We therefore deny his request.

Accordingly, we affirm the district court's order dismissing the

complaint. We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

AFFIRMED

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