IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-30050

HERBERT ALLEN MCKNIGHT,

Plaintiff-Appellant

v.

DRESSER, INCORPORATED,

Defendant-Appellee

------------------------------------------------------------------------------------------------------------

consolidated with

Case No. 11-30072

HABEN LACHNEY,

Plaintiff-Appellant

v. 

DRESSER, INCORPORATED,

Defendant-Appellee

------------------------------------------------------------------------------------------------------------

consolidated with

Case No. 11-30104

FOSTER L. ANDERSON; JASON J. AYMOND; HARRY BONTON; QUINCY

C. BOYD; BILLY G. BRUNSON; ET AL,

Plaintiffs-Appellants

v.

DRESSER, INCORPORATED,

United States Court of Appeals

Fifth Circuit

F I L E D

March 28, 2012

Lyle W. Cayce

Clerk
No. 11-30050

2

Defendant-Appellee

Appeals from the United States District Court 

for the Western District of Louisiana

Before GARZA, CLEMENT, and SOUTHWICK, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

In a consolidated appeal, Plaintiffs-Appellants contend that the district

court erred in denying their motions to remand and in dismissing their

workplace safety claims as time-barred. For the following reasons, we

REVERSE the judgment of the district court and REMAND for further

proceedings consistent with this opinion.

I

Defendant-Appellee Dresser, Inc., (“Dresser”) is an industrial valve

manufacturer with facilities in the state of Louisiana. Appellants all worked for

Dresser at some point in the last four decades, their respective employments

terminating at various times between 1977 and 2009. In 2010, PlaintiffsAppellants Herbert Allen McKnight, Haben J.Lachney, andFoster L. Anderson,

along with 42 other plaintiffs, filed three separate suits in Louisiana state court

against Dresser. McKnight’s and Lachney’s complaints alleged that Dresser had

been negligent in failing to maintain a safe workplace, and Anderson’s complaint

alleged negligence, strict liability, and fraudulent misrepresentation. In all

three suits, Appellants claimed that Dresser failed to properly monitor and

mitigate exposure to loud noise at Dresser’s industrial facility, and that these

failures led to long-term hearing loss. Appellants sought damages for these

injuries.

Dresser removed the actions to federal court pursuant to § 301 of the

Labor Management Relations Act (“LMRA”), which grants federal jurisdiction
No. 11-30050

1 The CBA in this case provided, among other things, that Dresser would (1) furnish all

requiredsafety equipment, (2) institute reasonable and necessary precautions for safeguarding

health and safety, (3) not deduct pay for union safety representatives based on time spent

carrying out their duties, and (4) conduct a joint safety inspection with the union on the 15th

of every month. The CBA also stipulated that matters of occupational safety and health would

be handled between employees and their supervisors, and ifthe matters remained unresolved,

they would be reported to the union safety representative. 

3

over state law claims that require interpretation of a collective bargaining

agreement (“CBA”). Dresser asserted that the state court could not adjudicate

Appellants’ tort claims without interpreting the parties’ CBA,1 and that the

district court therefore had jurisdiction under § 301. See Lingle v. Norge Div. of

Magic Chef, Inc., 486 U.S. 399, 413 (1988) (“[A]n application of state law is preempted by § 301 of the [LMRA] only if such application requires the

interpretation of a collective-bargaining agreement.”). Appellants filed motions

to remand, contending that their tort claims were independent of the CBA. See

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 212-213 (1985) (holding that § 301

does not preempt state law claims based on non-negotiable, independent rights).

The district court adopted the recommendation of the magistrate judge

and denied Appellants’ motions to remand, citing Navarro v. Excel Corp., 48 F.

App’x 481 (5th Cir. 2002) (per curiam) (unpublished) (holding that § 301

preempted plaintiff’s state law claims because the parties’ CBA imposed duties

on the employer with regard to workplace safety, and the court would have to

interpret the CBA to ascertain the employer’s duties). The district court then

granted Dresser’s Rule 12(b)(6) motions to dismiss, concluding that Appellants’
No. 11-30050

2 The district court, citing DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151 (1983),

applied a federal statute of limitations of six months from the date the Appellants received

notice of their injuries and concluded that Appellants’ claims were untimely on their face.

Appellants contend on appeal that the district court should have instead applied Louisiana’s

one-year prescription for tort actions. Because we ultimately conclude that the district court

should have granted Appellants’ motions to remand and was without jurisdiction to grant the

motions to dismiss, we do not address this issue.

4

complaints were untimely under the applicable federal statute of limitations.2

Appellants filed notices of appeal, and the three actions were consolidated. 

We review the district court’s denial of Appellants’ motions to remand,the

propriety of removal under § 301, and the existence of subject matter jurisdiction

as interrelated questions of law subject to de novo review. See Oviedo v.

Hallbauer, 655 F.3d 419, 422 (5th Cir. 2011) (citing Kollar v. United Transp.

Union, 83 F.3d 124, 125 (5th Cir. 1996)).

II

Appellants’ primary contention on appeal is that the district court erred

in relying on Navarro because this case involves non-waivable Louisiana

workplace safety claims, rather than waivable Texas claims. Specifically,

Appellants urge this court to adopt the reasoning of the Eastern District of

Louisiana in Arceneaux v. Amstar Corp., No. 03-3588, 2004 WL574718 (E.D. La.

Mar. 22, 2004). See id. at *4 (holding that § 301 did not preempt Louisiana

plaintiff’s state workplace safety claims, even though the parties’ CBA addressed

workplace safety, because plaintiff was asserting independent, nonnegotiable

state law rights). Dresser counters that this court’s decision in Espinoza v.

Cargill Meat Solutions Corp., 622 F.3d 432 (5th Cir. 2010), is controlling. See id.

at 442-44 (citing Navarro and holding that § 301 preempted Texas plaintiff’s

state workplace safety claims because the CBA helped define employer’s duty to

provide a safe workplace). 
No. 11-30050

5

A

Congress has dictated that federal courts have jurisdiction over all cases

“arising under the Constitution, laws, or treaties of the United States.” 28

U.S.C. § 1331. Additionally, the “well-pleaded complaint” rule requires that, for

a federal court to have “arising under” jurisdiction, the plaintiff’s federal law

claims must appear on the face of the complaint. Merrell Dow Pharm. Inc. v.

Thompson, 478 U.S. 804, 808 (1986). Thus, if a complaint pleads only state law

claims, a federal court generally does not have jurisdiction over that complaint,

even if the defendant asserts preemption as an affirmative defense. Gutierrez

v. Flores, 543 F.3d 248, 251-52 (5th Cir. 2008).

However, the complete preemption doctrine presents a narrow exception

to the well-pleaded complaint rule. See Johnson v. Baylor Univ., 214 F.3d 630,

632 (5th Cir. 2000) (“Congress may so completely preempt a particular area that

any civil complaint raising this select group of claims is necessarily federal in

character.”) (quoting Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987)).

Unlike ordinary preemption, complete preemption is jurisdictional in nature,

and “[a]s such, it authorizes removal to federal court even if the complaint is

artfully pleaded to include solely state law claims . . . .” Id. (quoting Heimann

v. Nat’l Elevator Indus. Pension Fund, 187 F.3d 493, 500 (5th Cir. 1999)).

The Supreme Court has applied complete preemption in a small number

of areas, one of which is cases involving § 301 of the LMRA. Avco Corp. v.

Machinists, 390 U.S. 557 (1968). Enacted by Congress to ensure uniformity in

the interpretation of CBAs, § 301 provides:

Suits for violation of contracts between an employer and a labor

organization representing employees in an industry affecting

commerce . . . may be brought in any district court of the United

States having jurisdiction of the parties . . . . 
No. 11-30050

6

29 U.S.C. § 185(a). In Teamsters v. Lucas Flour Co., 369 U.S. 95 (1962), the

Court explained that, “in enacting § 301 Congress intended doctrines of federal

labor law uniformly to prevail over inconsistent local rules.” Id. at 104. Thus,

any state court suit alleging violation of a labor contract must be brought under

§ 301 and resolved under federal law. See id. at 103. The Supreme Court has

also held that § 301 preemption may apply to tort claims as well. See AllisChalmers, 471 U.S. at 210-11. The Court in Allis-Chalmers reasoned that:

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

. . .the pre-emptive effect of § 301 must extend beyond suits alleging

contract violations. . . . [Q]uestions 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. 

Id.

However, the Allis-Chalmers Court limited its holding to tort suits

involving “state-law rights and obligations that do not exist independently of

private agreements.” Id. at 212-13 (“[I]t would be inconsistent with

congressional intent under that section to preempt state rules that proscribe

conduct, or establish rights and obligations, independent of a labor contract.”).

The Court explained that § 301 preemption of state tort claims is only proper

where “resolution of [the] state-law claim is substantially dependent upon

analysis of the terms of [the] agreement made between the parties in a labor

contract . . . .” Id. at 220. The focus of such an analysis is whether the state tort

action “confers nonnegotiable state-law rights . . . independent of any right

established by contract” or instead “evaluation of the tort claim is inextricably

intertwined with consideration of the terms of the labor contract.” Id. at 213. 
No. 11-30050

7

The narrow issue for our review is thus whether (1) Appellants’ claims are

“inextricably intertwined” with the CBA, in which case the district court was

correctto deny Appellants’ motion to remand, or (2) Appellants’ claims are based

on independent, non-negotiable state law rights, in which case the district court

was without jurisdiction and erred in denying the motion to remand.

B

Appellants contend that Arceneaux v. Amstar Corp., No. 03-3588, 2004 WL

574718 (E.D. La. Mar. 22, 2004) provides the proper analysis. In Arceneaux, the

plaintiffs brought Louisiana state law claims seeking damages for gradual

hearing loss under LA. REV. STAT. § 23:13, which requires all Louisiana

employers to provide a “reasonably safe” workplace. Id. at *1. The employer

removed the case to federal court, asserting § 301 preemption. Id. The district

court granted the plaintiffs’ motion to remand, reasoning as follows:

To establish a violation of Section 23:13 against an employer, a

plaintiff must establish “that her accident and injuries were caused

by an unreasonable risk of harm created by the employer’s failure

to properly fulfill the duties imposed by the . . . statute.” Jones v.

Trailer, 636 So. 2d 1112, 1116 (La. Ct. App. 1994). Here, not one

allegation in plaintiffs’ complaint relies on or refers to the CBA.

Indeed, plaintiffs’ complaint specifically alleges that defendants did

not comply with state and federal regulations concerning workplace

exposure to noise. Plaintiffs do not allege that defendants violated

the applicable health and safety provisions of the CBA. To

determine whether defendants violated their duty to plaintiffs, a

court need look only as far as Louisiana Revised Statute § 23:13. As

noted by the Louisiana courts of appeals, to determine whether an

employer has violated Section 23:13, the court must examine only

whether the employer fulfilled his duties imposed by the statute. See

Jones, 636 So. 2d at 1116. Contract interpretation is not required

here to determine whether the employer is liable in tort. 

Id. at *4. Appellants contend that they, like the plaintiffs in Arceneaux, brought

independent claims under Louisiana law which the state court may adjudicate

without interpreting the parties’ CBA.
No. 11-30050

3 Dresser and the district court also cited the line of cases leading to Espinoza, including

Navarro. But Navarro, and all of the Fifth Circuit cases on which Navarro relied, involved

plaintiffs who, like Espinoza, were limited to claims under the CBA because they had waived

their state law claims. See Navarro, 48 F. App’x at *1 (“The CBA’s disability plan requires an

employee to waive her right to sue in return for Excel’s providing a claims procedure for

8

Dresser counters that this court’s decision in Espinoza is dispositive. In

Espinoza, the plaintiff brought a negligence claim under Texas law against her

employer Cargill after suffering a hand injury while operating a company saw.

Espinoza, 622 F.3d at 437. This court concluded that § 301 authorized removal

of Espinoza’s state law claim because ascertaining Cargill’s duties and

Espinoza’s remedies would involve interpreting the terms of the CBA. Id. at

445. The Espinoza court explained that “the CBA [did] not‘merely acknowledge

[ ] Cargill’s duty to provide a safe workplace for its employees’; instead, it

help[ed] define that duty by mandating such things as plant inspections, safety

committees for each shift, and the provision of safety equipment.” Id. at 444.

As Dresser notes, the CBA in the present case similarly contains specific duties

such as the duty to provide safety equipment, to institute precautions, not to

deduct pay for union safety representatives for time spent carrying out their

duties, and to conduct safety inspections. According to Dresser, Espinoza stands

for the proposition that, if a CBA elaborates on workplace safety in this way,

adjudication of a state workplace safety claim requires interpretation of the

CBA. 

However, the Espinoza court also found it significant that Espinoza had

waived her state law claims, as Texas law allows. Id. at 443 (“[S]tate-law rights

and obligations that do not exist independently of private agreements, and that

as a result can be waived or altered by agreement of the parties, are pre-empted

by those agreements.”) (quoting Allis-Chalmers, 471 U.S. at 213) (emphasis

added)). In this way, Appellants’ Louisiana workplace safety claims are different

from theTexas law claims in Espinoza.

3 Unlike Texas, Louisiana not only places
No. 11-30050

disability benefits.”); Cupit v. Walts, 90 F.3d 107, 109 (5th Cir. 1996) (“In lieu of subscribing

to the Texas Workers’ Compensation Act, the Company agrees to provide directly to its

employees the compensation and benefits otherwise available . . . .”); Richter v. Merch. Fast

Motor Lines, Inc., 83 F.3d 96, 97 (5th Cir. 1996) (“The CBA at issue provides the exclusive

remedy for settling disputes involving negligence on the part of the Company . . . .”).

4 Dresser contends that, because the National Labor Relations Act (“NLRA”) requires

bargaining over workplace safety, Louisiana’s right to a safe workplace cannot be “nonnegotiable.” See 29 U.S.C. § 158(d); NLRB v. Gulf Power Co., 384 F.2d 822, 825 (5th Cir. 1967)

(holding that “safety rules and practices . . . are undoubtedly conditions of employment, and

. . . Section 8(d) requires good faith bargaining as a mutual obligation of the employer and the

Union in connection with such matters”). However, the fact that the NLRA requires employers

to bargain health and safety provisions in a CBA does not mean that a state like Louisiana

may not also grant employees independent, non-negotiable state law rights and forbid

employers from bargaining those rights away.

9

a duty on employers to provide a safe work environment, it expressly forbids the

waiver of that duty in a CBA. See LA. REV. STAT. § 23:13 (“Every employer shall

furnish employment which shall be reasonably safe for the employees therein.”);

id. at § 23:1033 (“No contract, rule, regulation or device whatsoever shall operate

to relieve the employer, in whole or in part, from any liability created by this

Chapter except as herein provided.”). In other words, Louisiana workplace

safety claims are based on precisely the type of independent, non-negotiable

state law rights and obligations which the Supreme Court excepted from § 301

preemption.4 This distinction is no less important because a claim raises the

same questions and implicates the same facts as a claim under the parties’ CBA.

See Lingle, 486 U.S. at 409-10 (“[E]ven if dispute resolution pursuant to a

collective-bargaining 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 pre-emption purposes.”). 

Alternatively, Dresser contends that, even if the state law rights are

independent, interpretation of the CBA is necessary because Louisiana law

provides no “objective standard” for determining whether Dresser has provided
No. 11-30050

5 See, e.g., Jones v. Trailor, 93-2144 (La. App. 4 Cir. 4/28/94); 636 So. 2d 1112, 1116

(holding that, to establish a violation of § 23:13, a plaintiff must establish “that her accident

and injuries were caused by an unreasonable risk of harm created by the employer’s failure to

properly fulfill the duties imposed by the . . . statute”); Vega v. S. Scrap Material Co., 517 F.2d

254, 258-59 (5th Cir. 1975) (“Southern Scrap had a duty as employer to provide decedent with

a safe place to work, LA. REV. STAT. 23:13; . . . . [T]he breach of the duty imposed by the

employment or agency relationship may, under general tort principles, be actionable

negligence because of the creation or maintenance thereby of an undue risk of harm to

others.”); Kavanaugh v. Orleans Parish Sch. Bd., CA 4588 (La. App. 4 Cir. 4/11/86); 487 So.

2d 533, 533 (holding that liability under § 23:13 requires an analysis of the foreseeability of

harm); Lytell v. Hushfield, 81-2117 (La. 1/25/82); 408 So. 2d 1344, 1347-48 (holding that an

employer’s duty under § 23:13 includes providing safe equipment used in connection with

work); Guidry v. Coregis Ins. Co., 04-325 (La. App. 3 Cir. 12/29/04); 896 So. 2d 164, 178-79

(holding that a company was liable for dangerous power lines because they posed a normal

hazard to employees and the danger was a frequent topic of conversation among its

employees); Miller v. Emp’rs Mut. Liab. Ins. Co. of Wis., 13302 (La. App. 2 Cir. 8/29/77); 349

So. 2d 1353, 1363 (holding that failure of employer to use extraordinary care and take every

precaution against injury does not constitute actionable negligence).

10

a reasonably safe work environment. We disagree. First, Louisiana statutory

law articulates a duty which goes beyond a vague mandate for workplace safety:

Every employer shall furnish employment which shall be reasonably

safe for the employees therein. They shall furnish and use safety

devices and safeguards, shall adopt and use methods and processes

reasonably adequate to render such employment and the place of

employment safe in accordance with the accepted and approved

practice in such or similar industry or places of employment

considering the normal hazard of such employment, and shall do

every other thing reasonably necessary to protect the life, health,

safety and welfare of such employees. 

LA.REV.STAT. § 23:13. Second, a substantial body of Louisiana and Fifth Circuit

case law applies § 23:13 and general tort principles to negligence claims in the

complete absence of a CBA.5In other words, Louisiana law not only states an

employer’s duty under § 23:13, but also fleshes out the contours of that duty in

specific fact scenarios. Resort to the parties’ contract is not required to

determine whether Dresser violated these independent, non-negotiable duties.

Lastly, Dresser expresses concern that, if we adoptthe analysis presented

in Arceneaux, all Louisiana safety claims arising under any CBA in Louisiana
No. 11-30050

6 Dresser points to no specific language in Appellants’ complaints which was borrowed

from the CBA, neither does our review ofthe complaints reveal any. Instead, Dresser attempts

to tie duties found in the CBA to various dissimilar duties alleged in Appellants’ complaint.

For example, Dresser contends that the complaints’ allegations that Dresser had a duty “to see

that Plaintiffs performed the duties pertaining to his work in a proper, safe and workmanlike

manner” or “to see that proper safety rules were adopted, promulgated, and enforced as

concerned the use of hearing protection devices and other protective equipment for all

individuals entering its facilities” are really references to the duty contained in the CBA to

provide for joint safety inspections on the 15th of every month. See Appellants’ Br. at 32-34.

We do not think that these comparisons, or the others made by Dresser, between Appellants’

complaints and the CBA demonstrate that Appellants were merely masquerading contract

claims as tort claims.

11

will be subject to state law analysis rather than a common body of federal law.

These concerns are misplaced. The fact that Louisiana state law establishes

non-negotiable rights and obligations with respect to workplace safety does not

prevent employers and employees from contracting for other rights and

obligations outside those found in Louisiana law, and enforcing them with a

contract suit. If this takes place, § 301 will require that those claims be heard

in federal court. Likewise, a tort claim that incorporates specific duties from a

CBA may also be subject to removal under § 301, even if such a claim is labeled

as a negligence claim. But where a plaintiff, like Appellants in this case, brings

a negligence claim based on independent, non-negotiable state law rights, and

his complaint neither refers to nor relies on the CBA, such a claim will not be

subject to § 301 preemption.6

On the other hand, deciding this case under Espinoza would allow

Louisiana employers to remove all state workplace safety claims to federal court

as long as the governing CBA made reference with some specificity to workplace

safety, even though Louisiana law prevents the waiver of state law claims. This

was not the intent of § 301. See Allis-Chalmers, 471 U.S. at 211-12 (“Nor is

there any suggestion that Congress, in adopting § 301, wished to give the

substantive provisions of private agreements the force of federal law. . . . Such

a rule of law would delegate to unions and unionized employers the power to
No. 11-30050

12

exempt themselves from whatever state labor standards they disfavored.”);

Arceneaux, 2004 WL 574718, at *3 (“To hold otherwise would provide employers

and labor unions the opportunity to place broad terms such as ‘health and safety’

in a CBA in order to skirt liability under state law. This is not the purpose of

Section 301 preemption.”).

III

In conclusion, Dresser owed Appellants duties under the CBA and

simultaneously owed non-negotiable, independent duties under Louisiana tort

law. These duties formed the bases for two distinct types of claims—contract

and tort—either of which Appellants may have brought before the district court.

Appellants chose to sue in tort, without reference to the CBA, and their claims

may be adjudicated by sole resort to Louisiana tort law. Applying the Supreme

Court’s construction of § 301, the district court was without jurisdiction and

therefore erred in denying the motions to remand and in granting the motions

to dismiss. Accordingly, the judgment is REVERSED and REMANDED for

proceedings consistent with this ruling.