Eitmann v. New Orleans Public Service, Inc.

• Decision Date: 23 April 1984
• Docket Number: No. 82-3705,82-3705
• Citation: 730 F.2d 359
• Parties: 116 L.R.R.M. (BNA) 2122, 100 Lab.Cas. P 10,985 Armond J. EITMANN, Plaintiff-Appellant, v. NEW ORLEANS PUBLIC SERVICE, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 359

730 F.2d 359

116 L.R.R.M. (BNA) 2122, 100 Lab.Cas. P 10,985

Armond J. EITMANN, Plaintiff-Appellant, v. NEW ORLEANS PUBLIC SERVICE, INC., Defendant-Appellee.

No. 82-3705.

United States Court of Appeals Fifth Circuit.

April 23, 1984.

Law Offices of Ferdinand Kleppner, Ferdinand J. Kleppner, Metairie, La., for plaintiff-appellant.

Chaffe, McCall, Phillips, Toler & Sarpy, G. Phillip Shuler, David L. McComb, New Orleans, La., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before RUBIN and RANDALL, Circuit Judges, and MITCHELL ^*, District Judge.

RANDALL, Circuit Judge:

The threshold issue posed by this appeal is whether federal jurisdiction was properly invoked in removing the action to federal court from the state court in which it was brought. Because we hold that the district court had original jurisdiction over the action, and because the appellant advances no arguments challenging the district court's summary judgment on a ground other than lack of subject matter jurisdiction, we affirm.

I. Factual and Procedural Background.

The plaintiff, Armond Eitmann, was employed from 1969 to 1977 by the defendant, New Orleans Public Service, Inc. ("NOPSI"), as a lineman in NOPSI's Overhead Lines Division. Eitmann contends that prior to being hired, he was advised by the Division Manager that, due to the hazardous nature of linemen's work, a lineman who suffered work-related injuries would receive full compensation during any period of total or partial disability, or until retirement.

In February, 1976, Eitmann was injured on the job. NOPSI paid him full salary during his convalescence. He was reinjured later that year and was assigned to modified duty at full pay. In November, 1977, NOPSI discharged Eitmann, advising him that it had no suitable work available that he was capable of performing.

At all times during his employment with NOPSI, Eitmann was a member of the Cooperative Electric Distribution Division Employees' Association (the "Union"), which maintained a collective bargaining agreement with NOPSI. The agreement provided, inter alia:

SECTION 7. It is agreed that any employee has the right to leave the service of the Company individually at any time, and in like manner, the Company has the right, at its discretion, to dispense with the services of any employee, provided, however, that in the case of discharge for cause, the employee or this Association, representing said employee may, if it so elects, grieve the discharge and after the grievance procedure has been exhausted, may submit said dismissal to arbitration in accordance with the provisions of this Agreement.

SECTION 8. If an employee covered by this Agreement should have a grievance arising out of the interpretation or application of specific provisions of this Agreement, or claim unjust treatment or that the dismissal was unjust, relief may be sought through the following grievance procedure:

* * *

* * *

[A four-step grievance procedure, culminating in binding arbitration, followed.]

After his discharge, Eitmann invoked the first two steps of the grievance process--presenting a written notice of his allegedly unjust dismissal to the General Manager, and meeting for discussion with a NOPSI Vice President--but abandoned the procedure when his grievance was denied at both junctures. He filed suit in state court seeking reinstatement, ¹ alleging breach not of the collective bargaining agreement but of his individual employment contract with NOPSI, whereby the latter allegedly had promised to keep him on the payroll at full compensation in the event of a disabling work-related injury.

NOPSI petitioned for removal of the case to federal court pursuant to 28 U.S.C. Sec. 1441(b) (1976), asserting that Eitmann's claim arose under the Labor Management Relations Act ("LMRA"), 29 U.S.C. Sec. 141 et seq. (1976). NOPSI alleged that Eitmann's action amounted to one for violation of a collective bargaining agreement between an employer and a labor organization representing employees in an industry affecting commerce, and thus stated a claim arising under section 301 of the LMRA, 29 U.S.C. Sec. 185(a). ² The district court granted the petition for removal and, upon NOPSI's motion for summary judgment, dismissed the action. ³

Eitmann appeals the dismissal of his action. He argues that the district court lacked jurisdiction over the subject matter of the suit, asserting that his claim did not arise under the collective bargaining agreement, but rather was grounded upon breach of Eitmann's individual contract of employment with NOPSI. Thus, he contends that removal was improper and urges us to remand the action to the state court whence it came. NOPSI argues that Eitmann's state-law contract claim is preempted by the LMRA, and that therefore his action necessarily arises under federal law despite the absence of any mention of federal law in his complaint, and was properly removed.

II. Federal Preemption.

Section 301 of the LMRA reflects a Congressional intent to promote industrial peace by ensuring uniform application of federal law to the enforcement of collective bargaining agreements. See Textile Workers Union of America v. Lincoln Mills of Alabama, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957). Thus, federal jurisdiction is properly invoked if the complaint alleges the violation of a collective bargaining agreement affecting interstate commerce. To the extent that state law would otherwise provide a remedy for the contractual breach, it is preempted. See, e.g., Republic Steel Corp. v. Maddox, 379 U.S. 650, 657, 85 S.Ct. 614, 618-19, 13 L.Ed.2d 580 (1965); Local 174, Teamsters, Chauffeurs, Warehousemen & Helpers of America v. Lucas Flour Co., 369 U.S. 95, 103, 82 S.Ct. 571, 576-77, 7 L.Ed.2d 593 (1962); Avco Corp. v. Aero Lodge No. 735, International Association of Machinists & Aerospace Workers, 376 F.2d 337, 339-40 (6th Cir.1967), aff'd, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968). In a case involving the application of federal labor law, an employee asserting a violation of the collective bargaining agreement is bound by the terms of that agreement as to the method of enforcing his or her claim and, generally, is required to exhaust those remedies. See Vaca v. Sipes, 386 U.S. 171, 184, 87 S.Ct. 903, 913-14, 17 L.Ed.2d 842 (1967); Republic Steel v. Maddox, 379 U.S. at 652-53, 85 S.Ct. at 616-17; Rabalais v. Dresser Industries, Inc., 566 F.2d 518, 519 (5th Cir.1978). ⁴

In this case, however, we are presented with a claim that, on its face, does not invoke the collective bargaining agreement. Eitmann asserts, rather, that the contract upon which his action is based is independent of the Union's agreement with NOPSI, and that it pertains to matters other than those governed by the collective bargaining agreement. NOPSI contends that Eitmann's claim is necessarily subsumed into the collective bargaining agreement.

In J.I. Case v. NLRB, 321 U.S. 332, 64 S.Ct. 576, 88 L.Ed. 762 (1944), the Court established that, 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. Id. at 337-39, 64 S.Ct. at 580-81. The Court held inconsistent with a collective bargaining agreement any individual contract by which the employer would "incidentally exact or obtain any diminution of his own obligation or any increase of those of employees in the matters covered by the collective agreement." Id. 321 U.S. at 339, 64 S.Ct. at 581. The Court expressly declined to hold that an individual contract more advantageous than the collective bargaining agreement would be unenforceable, but noted that the "practice and philosophy of collective bargaining looks with suspicion on such individual advantages." Id. at 338, 64 S.Ct. at 580. See also NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 180, 87 S.Ct. 2001, 2006, 18 L.Ed.2d 1123 (1967) ("[National labor] policy ... extinguishes the individual employee's power to order his own relations with his employer and creates a power vested in the chosen representative to act in the interest of all employees .... Thus only the union may contract the employee's terms and conditions of employment ....").

Eitmann contends that his alleged individual contract is not inconsistent with the terms of the collective bargaining agreement and thus, under J.I. Case, he is not precluded from a state claim based on its breach. We are not persuaded, however, that the two agreements can be construed so independently of each other. J.I. Case specifically noted that individual contracts may not "be used to ... limit or condition the terms of the collective agreement.... Individual contracts cannot subtract from collective ones ...." 321 U.S. at 337-39, 64 S.Ct. at 580-81. The oral agreement that Eitmann contends he entered into with NOPSI provided, essentially, for lifetime employment, regardless of his ability to perform any services for the employer; in other words, unlike all of the other employees covered by the collective bargaining agreement, Eitmann could not be discharged because of his physical inability to perform any services for NOPSI. ⁵ We think that this alleged agreement clearly seeks to "limit or condition" the terms of the collective bargaining agreement, which established the terms and conditions of employment, including discharge. See Eitmann Dep.Exh. 15. ⁶ Section 8 of the agreement provides that a discharged employee claiming unjust dismissal shall grieve his or her claim pursuant to the contractual grievance procedure. Yet Eitmann contends that his individual contract should be interpreted to supersede this provision. We do not agree.

It has been long settled that the explicit terms of a collective bargaining agreement do not necessarily establish its...