UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SHELBY LEARY, Commissioner, State

of West Virginia Division of Labor,

on behalf of David Belcher, Calvin

Cheeks, Jeffrey Cheeks, Ransome

Mitchem, Johnny Brown, David

Denton, David Hagerman, Harlin

Hagerman, Robert Hill, Stephen

O'Dell, Bernard Simpson, Ira

Simpson, Claude Smith, and

No. 96-1005

Anthony Taylor,

Plaintiff-Appellee,

v.

BLUESTONE COAL CORPORATION,

Defendant-Appellant,

and

JAMES C. JUSTICE, individually,

Defendant.

Appeal from the United States District Court

for the Southern District of West Virginia, at Charleston.

John T. Copenhaver, Jr., District Judge.

(CA-93-1191-2)

Argued: October 31, 1997

Decided: April 6, 1998

Before WIDENER and ERVIN, Circuit Judges, and

BULLOCK, Chief United States District Judge for the

Middle District of North Carolina, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Charles Leslie Woody, SPILMAN, THOMAS & BATTLE, Charleston, West Virginia, for Appellant. Daynus Jividen,

OFFICE OF THE ATTORNEY GENERAL, Charleston, West Virginia, for Appellee. ON BRIEF: Eric W. Iskra, SPILMAN,

THOMAS & BATTLE, Charleston, West Virginia, for Appellant.

William S. Steele, Managing Deputy Attorney General, Amie Langfitt Johnson, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL, Charleston, West Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

This appeal presents the issue of whether, under the circumstances

of this case, West Virginia's Wage Payment and Collection Act (the

"Wage Payment Act"), W. Va. Code §§ 21-5-1 et seq., is pre-empted

by federal labor law. Finding that the district court correctly concluded that the Wage Payment Act was not pre-empted by federal

labor law, we affirm.

Appellee Commissioner of the West Virginia Department of Labor

(the "Commissioner") brought this complaint against Appellant Bluestone Coal Corporation ("Bluestone") and James C. Justice1 in state

court on behalf of twenty-six individuals who were former employees

of BBC Coal Company, Inc. ("BBC"), Thurman Coal Company

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1 Defendant Justice was dismissed from this action by order dated

April 21, 1994. J.A. at 36.

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("Thurman"), Grayhead Mining Company ("Grayhead"), and C&O

Mining Corp. ("C&O").2 Only the claim brought on behalf of the former employees of C&O is relevant in this appeal. The former employees of C&O allege that C&O owes them wages and fringe benefits

and that the Wage Payment Act entitles them to collect those monies

from Bluestone in its capacity as a prime contractor within the meaning of the Wage Payment Act.3

The facts underlying this dispute are straightforward. During the

last six months of their employment, the C&O employees did not

receive wages and fringe benefits at the rate required by the 1988

National Bituminous Coal Wage Agreement. Instead, C&O negotiated a separate contract with the employees and paid them at a lower

_________________________________________________________________

2 Bluestone removed this action to federal court on the ground that the

Commissioner's claims were subject to complete pre-emption under various sources of federal law including labor law and the Employment

Retirement Income Security Act of 1974 ("ERISA"). The Commissioner

then moved to remand the action to state court. While the motion to

remand was pending, the claims with respect to the former employees of

Thurman and Grayhead were settled and dismissed. J.A. at 20, 54. The

district court then denied the Commissioner's motion to remand. The district court found that removal was proper as to the entire action because

the Commissioner's claim with respect to BBC was subject to complete

pre-emption pursuant to Section 301 of the Labor Management Relations

Act (the "LMRA"), 29 U.S.C. § 185. J.A. at 63-71; see 28 U.S.C.

§ 1441(c); Franchise Tax Bd. of California v. Construction Laborers

Vacation Trust for S. California, 463 U.S. 1, 13 (1983); Rosciszewski v.

Arete Assocs., Inc., 1 F.3d 225, 229 n.3 (4th Cir. 1993). The district court

thereafter granted Bluestone's motion for summary judgment directed at

the claim brought on behalf of BBC employees because the claim was

pre-empted by Section 301 of the LMRA, and under Section 301 a claim

could not be maintained against Bluestone as a non-signatory to the relevant collective bargaining agreement. J.A. at 85-86.

3 Under the Wage Payment Act, if the employer fails to pay in full the

wages of its employees including then accrued fringe benefits, then a

"prime contractor" is liable for "payment of wages and fringe benefits . . .

to the extent that the employer of such employee fails to pay such wages

and fringe benefits." W. Va. Code § 21-5-7. Bluestone does not dispute

that it is a prime contractor within the meaning of the Wage Payment

Act. See J.A. at 53.

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rate. J.A. at 78. As a result, unfair labor practice charges were filed

against C&O with the National Labor Relations Board (the "NLRB"),

which entered a compliance order against C&O for net back pay,

fringe benefits, and medical benefits. J.A. at 52, 78. This court upheld

enforcement of the NLRB award. Id.

The Commissioner's claim on behalf of the C&O employees arose

because C&O failed to pay in full the wages owed pursuant to this

NLRB award, apparently because C&O had gone out of business. See

Appellee's Br. at 11. In its motion for summary judgment, Bluestone

asserted that the Commissioner's claim under the Wage Payment Act

on behalf of the C&O employees was pre-empted by federal labor law

governing successor liability for unfair labor practices. Bluestone did

not cite to authority or identify relevant pre-emption principles supporting this position before the district court. J.A. at 79.

The district court rejected Bluestone's argument. The district court

found Section 301 pre-emption did not apply because the rights created by the Wage Payment Act were independent of the collective

bargaining agreement and could be resolved without interpretation of

the agreement. Because Bluestone conceded that it would be liable for

the amounts owing to C&O employees if the Wage Payment Act was

not pre-empted, the district court subsequently entered an order granting judgment against Bluestone as to the C&O employees. J.A. at

100.

After the district court denied Bluestone's motion for reconsideration, Bluestone filed a timely appeal to this court. On appeal, Bluestone does not challenge the district court's determination that

Section 301 pre-emption is inapplicable in this case. Indeed, Bluestone concedes that Section 301 pre-emption does not apply. See

Appellant's Br. at 19. Instead, Bluestone relies on San Diego Bldg.

Trades Council v. Garmon, 359 U.S. 236 (1959), to argue that the

Commissioner's claim is pre-empted because the Wage Payment Act

interferes with "the unfair labor practices of C&O Mining and the

[NLRB's] compliance rules and regulations dealing with such violations." Appellant's Br. at 23. Thus, under Bluestone's theory, because

Section 8 of the National Labor Relations Act (the "NLRA"), 29

U.S.C. § 158, provides the NLRB with exclusive jurisdiction to adjudicate unfair labor practice charges, neither the state courts nor the

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federal courts have jurisdiction to consider whether Bluestone should

be liable for C&O's unfair labor practices. Bluestone misunderstands

the nature of the Commissioner's claim and the scope of Garmon preemption.

Pre-emption by federal law is a question of law subject to de novo

review. See Cox v. Shalala, 112 F.3d 151 (4th Cir. 1997). In Garmon,

the Supreme Court made two statements which have provided general

guidelines for determining the unexpressed intent of Congress regarding the permissible scope of a state's regulation of activity touching

upon labor-management relations. As to conduct clearly protected or

prohibited by Sections 7 and 8 of the NLRA, the Garmon Court

stated:

When it is clear or may fairly be assumed that the activities

which a State purports to regulate are protected by§ 7 of the

National Labor Relations Act, or constitute an unfair labor

practice under § 8, due regard for the federal enactment

requires that state jurisdiction must yield. To leave the

States free to regulate conduct so plainly within the central

aim of federal regulation involves too great a danger of conflict between power asserted by Congress and requirements

imposed by state law.

359 U.S. at 244. The Garmon Court also made the following, more

sweeping statement: "When an activity is arguably subject to § 7 or

§ 8 of the Act, the States as well as the federal courts must defer to

the exclusive competence of the National Labor Relations Board if

the danger of state interference with national policy is to be averted."

Id. at 245.

Relying on these statements, Bluestone argues that West Virginia's

Wage Payment Act impermissibly interferes with the NLRB's jurisdiction over C&O's unfair labor practices, and its rules and regulations with respect to compliance, and that, accordingly, federal law

has pre-empted the "collection of NLRB awards." Appellant's Br. at

18.

However, Bluestone overlooks the fact that the Supreme Court has

refused to apply the Garmon guidelines "in a literal, mechanical fash-

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ion." Sears, Roebuck & Co. v. San Diego County Dist. Council of

Carpenters, 436 U.S. 180, 188 (1977). Thus, the Supreme Court has

held that:

Under Garmon, a State may regulate conduct that is of only

peripheral concern to the Act or that is so deeply rooted in

local law that the courts should not assume that Congress

intended to pre-empt the application of state law. .. . [In

Sears,] we emphasized that a critical inquiry in applying the

Garmon rules, where the conduct at issue in the state litigation is said to be arguably prohibited by the Act and hence

within the exclusive jurisdiction of the NLRB, is whether

the controversy presented to the state court is identical with

that which could have been presented to the Board .

Belknap, Inc. v. Hale, 463 U.S. 491, 509-10 (1983) (emphasis added).

In view of these principles, Bluestone's reliance on Garmon preemption is misplaced. The conduct at issue under the Wage Payment

Act is not an issue which is identical to that which could have been

presented to the NLRB. The NLRB's inquiry into C&O's unfair labor

practices involved an examination of the unilateral dealing done by

C&O with its employees and an examination of NLRA Section 8.

Federal labor law rules with respect to successor liability, in turn, deal

with the circumstances in which liability for a predecessor's unfair

labor practices may be imputed to a successor corporation. See, e.g.,

Golden Gate Bottling Co., Inc. v. NLRB, 414 U.S. 168 (1973).

In contrast, prime contractor liability involves an examination of

the relationship between Bluestone and C&O, Bluestone's prime contractor status, and West Virginia's Wage Payment Act. As the district

court consistently emphasized, prime contractor liability does not

involve any inquiry into whether C&O committed unfair labor practices, or whether Bluestone may be liable for those practices as a successor. See J.A. at 118-19. Thus, prime contractor liability is not an

issue which could have been presented to the NLRB and is not an

issue with which the NLRB would have been concerned. In short, the

Wage Payment Act does not turn on successor liability and in no way

interferes with federal labor law rules with respect to successor liability.

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Moreover, as the Commissioner notes, the Wage Payment Act

expresses a policy which is rooted deeply in the local law of West

Virginia and consequently is not a law which courts should assume

Congress intended to pre-empt under the NLRA. See Mullins v.

Venable, 171 W. Va. 92, 297 S.E.2d 866 (1982). For the foregoing

reasons, we affirm the district court's decision denying Bluestone's

motion for summary judgment and granting judgment in favor of the

Commissioner.

AFFIRMED

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