Petition for Writ of Certiorari — Barton v. Creasey Co. of Clarksburg

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YOSEPH F. SPANIOL, JR,

IN THE ; so CLERK

Supreme Court of the United Stator

OCTOBER TERM, 1990

REUBEN J. BARTON; WILLIAM BEE; CARL D. CAIN;

JAMES E. DAVIS: ULyYssEs, G. DEAN; CHARLES F.

EVERETT; JOHN A. FLANAGAN; FRANK FOMINKO;

MICHAEL L. FRAZIER; ROBERT H. FRAZIER: Woopy D.

HAMRICK; CHARLES E. KNICELEY; MARK E. LABENNE;

CHARLES G. LAFFERTY; MARK LANGBEIN; JAMES E.

LANTZ: KENNETH L. MATHENEY; WILLIAM L. May;

FREDERICK MCCARTNEY; HOWARD B. MITCHELL;

JAMES E. NUTTER; MICHAEL A. NUTTER; JAMES R.

PATTON; ISAAC S. PAUGH; STEPHEN B. RIEL; WILLIAM

RINEHART; GLENN SHAW, JR.; LOWELL STOUT;

DENNIS C. STUTLER; JOHN F. SWENSKIE; RONALD J.

WEBB; LAWRENCE D. WILCOX,

Petitioners,

Vi

THE CREASEY COMPANY OF CLARKSBURG, a West Vir-

ginia corporation, and Fox GROCERY Co., a West

Virginia corporation,

Respondents,

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT QF APPEALS

FOR THE FOURTH CIRCUIT

MICHAEL JOHN ALOI

MANCHIN, ALOI & CARRICK

1543 Fairmont Avenue

Fairmont, WV 26554

(304) 367-1862

Counsel for the Petitioners

WILSON - EPes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTION PRESENTED FOR REVIEW

Whether the petitioners’ independent state statutory

cause of action brought pursuant to the West Virginia

Wage Payment and Collection Act (W.Va. Code Section

21-5-1, et seq.) is preempted by Section 301 of the Na-

tional Labor Relations Act.

(i)

ii

LIST OF ALL PARTIES TO THE PROCEEDINGS

All parties to this proceeding are listed in the caption

of this case.

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ...... aes i

LIST OF ALL PARTIES TO THE PROCEEDINGS... ii

TABLE OF AUTHORITIES ...............000000......... Paneer Vv

Neen esse csi ccasncncacssiaacsscssaneindsccsceses 1

oS can sseneaenhssacascvnsnensenesaenss 2

STATUTORY PROVISIONS INVOLVED |... 2

ee a et oF) | ee 3

REASONS FOR GRANTING THE WRIT 5

I. THE DECISION OF THE FOURTH CIRCUIT

COURT OF APPEALS IN THIS CASE IS

IN CONFLICT WITH DECISIONS OF THE

WEST VIRGINIA SUPREME COURT OF

Nee aan swnnnssasnndnsssansasnsnsnvacein 5

A. The complaint filed asserts a state cause of

action pursuant to the provisions of the West

Virginia Wage Payment and Collection Act,

West Virginia Code Section 21-5-1 to Section

21-5-16 and is not preempted by Section 301

Nene ne asuinishosuasacese 5

1. The West Virginia Wage Payment and

Collection Act provides benefits and reme-

dies not available under the collective

bargaining agreement ...........0.0.....0000000..... as 6

a. A longer statute of limitations to

bring a cause of action which is five

years, Jones v. Tri-County Growers,

366 S.E.2d 726 (W.V. 1988 Syi. Pt. 2).. 6

b. Collection of attorney fees 0...

c. Liquidated damages ..............................

(iii)

iv

TABLE OF CONTENTS—Continued

2. The West Virginia Supreme Court has

taken great efforts to ensure that all

West Virginia workers will enjoy their

statutory rights, regardless of a collective

bargaining agreement —.. eee.

II. THE DECISION OF THE FOURTH CIRCUIT

COURT OF APPEALS IN THIS CASE IS IN

CONFLICT WITH ITS OWN PRIOR DECI-

SIONS IN GEORGETOWN STEEL AND THE

DECISION ON THE SAME MATTER REN-

DERED BY THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT IN

INT seubistnesiniviniiieiiecapnsnaanteniibselilaocsiteembinaiiesaciasaateie

A. Federal law also requires that all employees

must enjoy their statutory rights and they

are not precluded by collective bargaining

ITE citciac. ss tana cccacxiecencneaeoverts PA

1. A statutory cause of action is independ-

ent and separate from a collective bar-

i enkebnk

2. The petitioners’ complaint states a state

cause of action and not a federal cause of

RIE BIE REAR jaa iba et MEN AS ations

3. The Fourth Circuit has specifically ad-

dressed this issue in Cook v. Georgetown

Steel Corp., 770 F.2d 1272 (4th Cir.

EIEN sxsdecactanislatataadiiauvancieces arngoites

RENMEI Sacesh cinensencacaaden desman bcececs eemammaphoroans

Page

13

13

14

17

v

TABLE OF AUTHORITIES

Cases

Page

Alexander v. Gardner-Denver, 415 U.S. 284, 104

S.Ct. 1799, 80 L.Ed.2d 302 (1984) 00. 8

Allis-Chalmers Corp. v. Lueck, 471 US. 211

SI siccabcenipiindabdeniceenie dh RR OCT Nee at tee 11

Baldracchi v. Pratt & Whitney Aircraft Div.,

United Technologies Corp., 814 F.2d 102, 106

Sb : eRe ees eT Ree pete, J. 10

Barrentine v. Arkansas-Best Freight System, Inc.,

Se IIE bccedictestanitdisteiens cteacmaetes ueainss 12

Champion International Corp. v. Brown, 731 F.2d

Se TE IIIS SEU cciacsecattapestnichaiasdhschonaanedausdoaaciaeen 14

City National Bank v. Edmisten, 681 F.2d 942 (4th

EN. SEE biacinsaed tiennionr din eer ete eee 13

Cook v. Georgetown Steel Corp., 720 F.2d 1272

Se te ret ee cee as 9, 13, 14, 15

Davis v. Kitt Energy, 365 S.E.2d 82 (W.Va. 1987). 8&9

DelCostello v. International Brotherhood of Team-

sters, 462 U.S. 151, 103 S.Ct. 2281 (1983)... 7

Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25

(1918) .......... sapeasnien aaieivaiachcaaicaaneeaaaanidaomtaeeetateeianos 14

First Nat’l Bank of Aberdeen v. Aberdeen Nat'l

Bank, 627 F.2d 843 (8th Cir. 1980) 14

Fort Halifax Packing C. v. Coyne, 482 US. —_,

2s a SSSR EON rere. wari Riko. eee Wt 10

Franchise Tax Board v. Constrvction Laborers

Vacation Trust, 463 U.S. 1 (1983) 13, 15

Gulden v. Crown Zellerbach Corp., 890 F.2d 195

(Sth Cir. 1989) ................. 9,11, 12

Gulley v. Fist National Bank, 299 U. S. 108 (1936) . 13

Illinois v. Kerr McGee Chemical Corp., 667 F.2d

Rf Ee ee ed 14

Jones v. Tri-County Growers, 366 S.E.2d 726

(W.V. 1988 Syl. Pt. 2) . . 6

Lingle v. Norge, 486 U.S. ——, 100 L. Ed. od 410,

108 S.Ct. 1877 (1988) ............ tates

Lingle v. Norge Div. of Magic Chef, 486 U.S. 399

(tPA EE in Bal th AB eS eS 1l

Louisville & Nashville R.R. v. Mottley, 211 U.S.

A I nC ee 13

vi

TABLE OF AUTHORITIES—Continued

Page

Lowe v. Imperial Colliery Co., 877 S.E.2d 652

DINERS Scull ia EE gn i a a 9

Mullins v. Venable, 297 S.E.2d 866 (WV 1982) ..... 6

Nolore v. San Diego Federal Savings & Loan Ass’n,

663 F.2d 841 (9th Cir. 1961) ................................. 14

Phillips Petroleum Co. v. Texaco, Inc., 415 U.S.

A A NS eee 13

T. & S. F. R. Co. v. Bueil, 480 U.S. ‘

Cael saan clasadaanincnamsenanks 10

Trent Realty Assoc. v. First Savings and Loan

Ass’n of Philadelphia, 657 F.2d 29 (8rd Cir.

EC Ait t I Ehsaan ncceasenkadbanabiiniaiaaiihinesdenannbaunniacs 14

Statutes

West Virginia Wage Payment and Collection Act

(W.Va. Code Section 21-5-1, et seq.) .......... passim

Section 301 of the National Labor Relations Act..passim

Miscellaneous

138 C. Wright, A. Miller & I.E. Cooper, Federal

Practice and Procedure, Section 3566, at 488

A SAT PRE Fee OP Pee eee eee 14

IN THE

Suprene Court of the United States

OCTOBER TERM, 1990

No. -——

REUBEN J. BARTON; WILLIAM BEE; CARL D. CAIN;

JAMES E. DAvis; ULysses G. DEAN; CHARLES FE.

EVERETT; JOHN A. FLANAGAN; FRANK FOMINKO;

MICHAEL L. FRAZIER; ROBERT H. FRAZIER; Woopy D.

HAMRICK; CHARLES E. KNICELEY; MARK E. LABENNE;

CHARLES G. LAFFERTY; MARK LANGBEIN; JAMES BE.

LANTZ; KENNETH L. MATHENEY; WILLIAM L. May;

FREDERICK MCCARTNEY; HOWARD B. MITCHELL;

JAMES E. NUTTER; MICHAEL A. NUTTER; JAMES R.

PATTON; ISAAC S. PAUGH; STEPHEN B. RIEL; WILLIAM

RINEHART; GLENN SHAW, JR.; LOWELL STOUT;

DENNIS C. STUTLER; JOHN F. SWENSKIE:; RONALD JJ.

WEBB; LAWRENCE D. WILCOX,

. Petitioners,

THE CREASEY COMPANY OF CLARKSBURG, a West Vir-

ginia corporation, and Fox Grocery Co., a West

Virginia corporation,

Respondents,

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

OPINIONS BELOW

The Original opinion and Order of the United States

Court of Appeals for the Fourth Circuit entered on the

13th day of March, 1990. (Appendix A). The Opinion

and Order of the United States District Court for North-

»

ern West Virginia, entered on the 25th day of August,

1989. (Appendix B). The Order of the United States

Court of Appeals for the Fourth Circuit on Petition for

Rehearing with suggestion for Rehearing In Banc, en-

tered on the 11th day of April, 1990. (Appendix C).

JURISDICTION

Jurisdiction is invoked pursuant to Rule 10 of the Rules

of the United States Supreme Court, petitioning the court

to review the judgment of the United States Court of

Appeal for the Fourth Circuit entered on the 13th day of

March, 1990. Thereafter a Petition for Rehearing with

Suggestion for Rehearing in Bane was filed and the

Court for the United States Court of Appeal for the

Fourth Circuit denied said Petition for Rehearing with

Suggestion for Rehearing in Bane, by order filed on the

11th day of April, 1990.

STATUTORY PROVISIONS INVOLVED

The West Virginia Wage Payment and Collection Act,

West Virginia Code Section 21-5-1 et seg. (See Append-

dix D),

Section 301 of the National Labor Relations Act. (Set

forth herein below) :

Liabilities of and Restrictions on

Labor and Manaqement

29 U.S.C. Section 185. Suits by and against labor

organizations

‘a’ Venue, amount, and citizenship. Suits for vio-

lation of contracts between an employer and a labor

organization representing employees in an industry

affecting commerce as defined in this Act, or between

any such labor organizations, may be brought in any

district court of the United States having jurisdic-

tion of the parties, without respect to the amount in

controversy or without regard to the citizenship of

the parties.

3

STATEMENT OF THE CASE

Petitioners Reuben J. Barton, et al, filed a complaint

in the Circuit Court of Harrison County, West Virginia,

on the 29th day of May, 1987. This complaint was

brought pursuant to the provisions of the West Virginia

Wage Payment and Collection Act, West Virginia Code,

Section 21-5-1 to Section 21-5-16 as alleged in Paragraph

1 of said complaint. The complaint alleged two causes of

action, one for the payment of unpaid vacation pay and

the second cause of action for a breach of implied con-

tract for the payment of severance pay.

The petitioners are all former employees of the re-

spondent, The Creasey Company of Clarksburg, a West

Virginia corporation. On or about the 8th day of July,

1985, respjondent, The Creasey Company of Clarksburg,

merged with and into the respondent, Fox Grocery Com-

pany, which is also a West Virginia corporation. The

petitioners were laid off and ultimately terminated from

their employment with the respondent The Creasey Com-

pany of Clarksburg, during the first two to three weeks

of July, 1985. The complaint is specific as to the claims

made by each individual petitioners as set forth in Para-

graph 7 of said complaint.

The respondents have not denied that all of the peti-

tioners were former employees of the respondent, The

Creascy Company of Clarksburg. The respondents have

denied that any moneys are due to the petitioners either

in the form of unpaid vacation pay or unpaid severance

pay.

Thereafter, on July 1, 1987, the respondents filed a

Petition for Removal and removed the case to the United

States District Court for Northern West Virginia. The

petitioners alleged that the civil action is founded on a

claim or right arising under the provisions of a Collec-

tive Bargaining Agreement and interpretation thereof

and is a civil action of which the United States District

4d

Court has original jurisdiction under Section 301 of the

National Labor Relations Act.

Thereafter, the respondents filed a Motion to Dismiss

and Brief in Support thereof on October 7, 1987. The

petitioners filed a Response to respondents’ Motion to Dis-

miss and a Motion to Remand the matter back to the Cir-

cuit Court of Harrison County on October 22, 1987.

On August 25, 1989, Judge Robert E. Maxwell, of the

United States District Court for Northern West Virginia,

entered an Order granting the respondents’ Motion to

Dismiss the petitioners’ complaint (Appendix B). The

Court stated the issues involved in the beginning of its

Order Memorandum as follows:

It is clear in reviewing the arguments of counsel

that the Court must primarily determine whether

this action is preempted by Section 301 of the Na-

tional Labor Relations Act (NLRA) or whether

plaintiffs have presented a state law claim independ-

ent of a collection bargaining agreement for Section

301 preemption purposes. After careful considera-

tion of the matters presented by the parties and the

applicable law, the Court concludes that the claims

are preempted by Section 301 of the NLRA.”

By granting the respondents’ Motion to Dismiss the

District Court failed to grant the petitioners’ Motion to

Remand.

The Order of the District Court for the Northern Dis-

trict of West Virginia was appealed by the petitioner to

the United States Court of Appeals for the Fourth Cir-

cuit.

The United States Court of Appeals in an unpublished

opinion decieded on March 13, 1990, affirmed the decision

of the District Court. (Appendix A).

Petitioners filed a Petition for Rehearing with Sugges-

tion for Rehearing in Bane which was denied by the

United States Court of Appeal for the Fourth Circuit

which was filed on April 11, 1990. (Appendix C).

5

This Petition for Writ of Certiorari is for review of

the unpublished opinion/order of the Fourth Circuit

Court of Appeals decided March 138, 1990, and upon the

Court’s denial of the petitioners’ Petition for Rehearing

with Suggestion for Rehearing in Bane filed on April 11,

1990.

REASONS FOR GRANTING THE WRIT

I. THE DECISION OF THE FOURTH CIRCUIT

COURT OF APPEALS IN THIS CASE IS IN CON-

FLICT WITH DECISIONS OF THE WEST VIR-

GINIA SUPREME COURT OF APPEALS.

A. The Complaint Filed Asserts a State Cause of

Action Pursuant to the Provisions of the West

Virginia Wage Payment and Collection Act, West

Virginia Code Section 21-5-1 to Section 21-6-16 and

Is Not Preempted by Section 301 of the NLRA.

The complaint filed herein was brought pursuant to the

provisions of the West Virginia Wage Payment and Col-

lection Act; West Virginia Code, Section 21-5-1 to Sec-

tion 21-5-16. In addition, the relief requested by several

paragraphs of the complaint are provisions for relief pro-

vided for in the Wage Payment and Collection Act. The

final relief requested for by the petitioners is relief of-

fered by the Wage Payment and Collection Act.

Any inention of the collective bargaining agreement

throughout the complaint is merely incident to the pri-

mary complaint which is that the petitioners have not been

timely paid. It is obvious that before it can be determined

what wages an employee is due, an oral, written or im-

plied agreement to pay said wages must be established.

However, the collective bargaining agreement is not the

primary subject of the dispute.

The West Virginia Wage Payment and Collection Act

defines wages to include fringe benefits (See West Vir-

ginia Code Section 21-5-1(¢)) (Appendix D) and fringe

benefits include regular vacation and graduated vacation

(See West Virgina Code Section 21-5-1(1)). (Appendix

D).

6

Simply because an individual is a member to a collec-

tive bargaining agreement does not mean that he or she

should be denied the statutory benefit of the West Vir-

ginia Wage Payment and Collection Act. Certainly this

was not the intention of the state legislature. Section 21-

5-10 of the Act (Appendix D), specifically provides that

no provision of the Act may in any way be contravened

or set aside by private agreement. A collective bargaining

agreement is nothing more than a private agreement.

The interest of the Wage Payment and collection is

certainly not to relegate all West Virginia employees who

happen to be covered by a collective bargaining agree-

ment to a lesser status. This result. would be the greatest

of ironies.

The purpose of the West Virginia Wage Payment and

Collection Act is remedial in nature designed to protect

working people and assist them in the collection of com-

pensation wrongly withheld Mullins v. Venable, 297

S.E.2d 866, WV (1982). Because it is remedial legisla-

tion it should be liberally construed to include coverage

of a/l working people.

1. The West Virginia Wage Payment and Collection

Act provides benefits and remedies not available

under the collective bargaining agreement.

The benefits of the West Virginia Wage Payment and

Collection Act are very real and provide the petitioners

with rights they would not have under their collective

bargaining agreement. The primary benefits are as fol-

lows:

a. A longer statute of limitations to bring a cause

of action which is five year, Jones v. Tri-

County Growers, 366 S.E.2d 726 (W.V. 1988

Syl. Pt. 2).

This is significant in that most grievances under col-

lective bargaining agreement must be filed within days.

In addition, Section 301 suits pursuant to the NLRA must

7

be filed within six (6) months, DesCostello v. Interna-

tional Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct.

2281 (1983).

This additional time period is exremely important and

helpful to workers who may generally be ignorant of

their rights or who are often intimidated by their em-

ployees.

b. Collection of attorney fees.

The provisions of the Wage Payment and Collection

Act, West Virginia Code Section 21-5-12 provide that

the Court may assess the costs of the action “including

reasonable attorney fees” against the employer defend-

ant. This is important to employees whose unpaid bene

fits are not significant to warrant an attorney getting in-

volved unless there is the opportunity for his fees to be

paid by the defendant employer if he is successful.

ce. Liquidated damages.

West Virginia Code Section 21-5-4(e) provides for

liquidated damages in the amount of thirty (30) days’

wages after the employer fails to make timely payment.

This provision is a legitimate deterrent to employers

who fail to timely pay wages knowing that it is often

economically impractical for an employee to pursue litiga-

tion. This is a deterrent that should exist against all em-

ployers, union or non-union.

All of the above are benefits the petitioners have under

the West Virginia Wage Payment and Collection Act that

they otherwise would not have, even under their collective

bargaining agreement. A Court should not deny them of

their rights granted by the West Virginia Legislature.

In addition, there may be a void when an employee,

covered by a collective bargaining agreement, is dis-

charged or terminated. The employee’s discharge or termi-

nation may leave him or hear without any rights under

8

the agreement and their only recourse would be in a state

court pursuant to state law.

In short, the Fourth Circuit’s opinion relegates all

West Virginia employees who happen to be covered by a

collective bargaining agreement to a lesser status and

denies them of certain rights and remedies as stated

herein. -A collective bargaining agreement should not be

used as a means to take away certain statutory rights

from an employee. Collective bargaining agreements are

rights negotiated and bargained for in addition to statu-

tory rights created by the West Virginia Legislature for

all citizens.

2. The West Virginia Supreme Court has taken

great efforts to ensure that all West Virginia

workers will enjoy their statutory rights, re-

gardless of a collective bargaining agreement, as

indicated by the following decisions.

In Davis v. Kitt Energy, 365 S.E.2d 82 (W.Va. 1987),

the West Virginia Supreme Court held in Syllabus Point

4 that “a miner against whom an arbitration decision has

been rendered under a collective bargaining involving a

safety claim is not foreclosed from pursuing a discrimi-

nation remedy under West Virginia Code Section 22A-

1A-20,” a West Virginia statute.

The Court in the Davis v. Kitt decision preserved an

individual’s statutory rights even after he had already

exercised his rights under a collective bargaining agree-

ment and was unsuccessful.

The West Virginia Supreme Court in its decision relied

upon the United States Supreme Court decision in Alezx-

ander v. Gardner-Denver, 415 U.S. 284, 104 S.Ct. 1799,

80 L.Ed.2d 302 (1984), See Davis v. Kitt, 365 S.E.2d 82

at Page 89.

The Davis v. Kitt decision is quoted as follows from

Page 89:

9

More importantly, the Court spoke of statutory

rights that were absolute and “represent|ed] a con-

gressional command that each employee be free from

discriminatory practices.” It observed that the

“rights conferred [by statute] can form no part of

the collective-bargaining process since waiver of these

rights would defeat the paramount congressional

purpose... .” 415 U.S. at 51, 95 S.Ct. at 1021, 39

L.Ed.2d at 160

The West Virginia Supreme Court addressed this issue

again at length in Lowe v. Imperial Colliery Co., 377

S.E.2d 652 (W.Va. 1988). In Syllabus Part 5 the Court

held that:

The mere fact that W.Va. Code, 21-5-4 (Wage

Payment and Collection Act) relates to matters

which may be the subject of a collective bargaining

does not mean that the terms of this statute are pre-

empted by Section 301 of the NLRA.” 29 U.S.C.

Section 185 (1947).

West. Virginia Courts have made it clear that all em-

ployees must enjoy their statutory rights and that these

rights are in addition to any rights an employee may

have pursuant to their collective bargaining agreement

or under Section 301 of the NLRA.

II. THE DECISION OF THE FOURTH CIRCUIT COURT

OF APPEALS IN THIS CASE IS IN CONFLICT

WITH ITS OWN PRIOR DECISION IN GEORGE-

TOWN STEEL AND THE DECISION ON THE

SAME MATTER RENDERED BY THE UNITED

STATES COURT OF APPEALS FOR THE NINTH

CIRCUIT IN GULDEN.

A. Federal Law Aiso Requires That A// Employees

Must Enjoy Their Statutory Rights and They Are

Not Precluded by Collective Bargaining Agree-

ments.

The U. S. Supreme Court most recently addressed this

matter in Lingle v. Norge, 486 U.S. , 100 L.Ed.2d

10

410, 108 S.Ct. 1877 (1988). The Court’s decision in

Lingle v. Norge states that:

. .. There is nothing novel about recognizing that_

substantive rights in the labor relations context can

exist without interpreting collective-bargeining

agreement.

The Court further noted that:

Although our commerits in Buel, construing the

scope of Railway Labor Act preemption, referred to

independent federal statutory rights, we subsequently

rejected a claim that federal labor law preempted a

state statute providing a one-time severance benefit

to employees in the event of a plant closing. In

Fort Halifax Packing C. v. Coyne, 482 U.S. ——,

(1987), we emphasized that “pre-emption

should not be lightly inferred in this area, since the

establishment of labor standards falls within the tra-

ditional police power of the State.” We specifically

held that the Main law in questions was not pre-

empted by the NLRA, “since its establishment of a

minimum labor standard does not impermissible in-

trude upon the collective-bargaining process.” Id.,

at

Footnote twelve (12) in the Court’s opinion is par-

ticularly on point when it states that:

A collective bargaining agreement may, of course,

contain information such as rate of pay and other

economic benefits that might be helpful in determin-

ing the damages to which a worker prevailing in a

state law suit is entitled. See Baldracchi v. Prott &

Whitney Aircraft Div., United Technologies Corp.,

814 F.2d 102, 106 (CA2 1987). Although federal

law would govern the interpretation of the agree-

ment to determine the proper damages, the under-

lying state law claim, not otherwise pre-empted,

would stand. Thus as a general proposition, a state

law claim may depend for its resolution upon both

the interpretation of a collective-bargaining agree-

ment and a separate state law analysis that does not

11

turn on the agreement. In such a case, federal law

would govern the interpretation of the agreement,

but the separate state law analysis would not be

thereby pre-empted. As we said in Allis-Chalmers

Corp. v. Lueck, 471 U.S. at 211, “not every dispute

... tangentially involving a provision of a collective-

bargaining agreement is pre-empted by Section 301.

As is the case here, the petitioners’ claim is brought

pursuant to the West Virginia Wage Payment and Col-

lection Act. Of course the Court is going to have to look

to some contract, either oral or written, to determine the

amount of damages the petitioners are due; however,

this does not involve an interpretation of the agreement,

but simply an application of the agreement. The Court

should be extremely hesitant and cautious to take away

the rights of West Virginia workers granted to them by

their state legislature.

On Page 5 of the Fourth Circuit’s opinion (See Appen-

dix A attached hereto), the Court cited and relied upon

the doctrine of Lingle v. Norge Div. of Magic Chef., Inc.

and stated that ‘“‘application of state law is preempted by

Section 301... if such application requires the interpre-

tation of a collective bargaining agreement.

The United States Court of Appeals for the Ninth

Cireuit decided Gulden v. Crown Zellerback Corp., 890

F.2d 195 (9th Cir. 1989) on November 24, 1989.

In Gulden the defendant ‘employer argued that plain-

tiff’s state law cause of action was preempted because

a determination of plaintiff's damages required reference

to the collective bargaining agreement. Relying on Lin-

gle v. Norge Div. of Magic Chef., Inc., 486 U.S. 399

(U.S. 1988), the Ninth Cireuit held that calculation of

damages from the labor contract did not require pre-

emption. Gulden, at Page 199,

12

This case is analogous in that any time an employee

makes a claim for lost or unpaid wages and benefits, the

collective bargaining agreement must be reviewed to de-

termine what those wages and benefits are. If the com-

plete preemption doctrine is followed to its logical ex-

treme, employees will never be permitted to bring a cause

of action against their employer pursuant to independent

statutory causes of action which involve claims for dam-

ages which are primarily for lost wages and benefits.

It is important to note that the Ninth Circuit, as au-

thority for its opinion, cited the same footnote (Footnote

12) in Lingle v. Norge which was cited by the petitioner

herein in support of its position.

Counsel for petitioners is of the opinion that the per

curiam decision of March 13, 1990, is in conflict with the

Ninth Circuit’s opinion in Gulden in regard to its inter-

pretation of Lingle v. Norge.

The United States Supreme Court in Barrentine ».

Arkansas-Best Freight System, Inc., 450 U.S. 728

(1981) involved an individual’s claim filed under the

Fair Labor Standards Act (FLSA) which deals with

among other things, wages, the heart of collective bar-

gaining agreement. The Court in Barrentine held:

Because Congress intended to give individual em-

ployees the right to bring the minimum wage claims

under the FLSA in Court, and because these con-

gressionally granted FLSA rights are best protected

in a judicial rather than in a arbitrarial form, we

hold that petitioners’ claim is not barred by the prior

submission of their grievances to the contractual

dispute-resolution procedure. Barrentime at 745.

If employees are permitted to file claims concerning

wages under the FLSA they certainly should be per-

mitted to file claims pursuant to the West Virginia Wage

Payment and Collection Act.

13

1. A statutory cause of action is independent and

separate from a collective bargaining agreement.

An employees’ statutory cause of action is an inde-

pendent state cause of action independent from the col-

lective bargaining agreement. The mere fact that the

Court may have to refer to a collective bargaining agree-

ment to determine wages does not convert the action to

a federal issue. Federal Courts have consistently held

in employment issues involving discrimination, mine,

health and safety. and wage and hour cases that where

specific state statutes create a private statutory cause of

action, public policy requires that a collective bargain-

ing agreement cannot deprive an individual of an inde-

pendent statutory cause of action.

2. The petitioners’ complaint states a state cause of

action and not a federal cause of action.

As this Court is well aware, Federal Courts are Courts

of limited jurisdiction. Initially, the Court must look to

its subject matter jurisdiction over the matter. It is well

settled that a federal question must appear on the face

of plaintiffs’ well-pleaded complaint. Cook v. George-

town Steel Corp., 770 F.2d 1272 (4th Cir. 1982): City

National Bank v. Edmisten, 681 F.2d 942 (4th Cir.

1982); Franchise Tar Board v. Construction Laborers

Vacation Trust, 463 U.S. 1 (1983); Phillips Petroleum

Co. v. Texaco, Inc., 415 U.S. 125, 127 (1974); Gulley ».

First National Bank, 299 U.S. 109, 112-113 (1936);

Louisville & Nashville R.R. v. Mottley, 211 U.S. 149

(1908). Defendants’ assertion of an issue of federal law

in the pleadings or in the petition for removal does not

create a federal question, Phillips Petroleum Co. v. Tex-

aco, Inc., supra. The “well-pleaded complaint” rule ap-

plies to removal cases as well. Franchise Tax Board v.

Construction Laborers Vacation Trust, supra.

When, as in the matter before the Court, plaintiff pre-

sents a state law claim an? defendant counters by argu-

14

ing that federal law preempts the state law on which

plaintiff relies, the federal claim appears by way of de-

fense, Cf. Champion International Corp. v. Brown, 731

F.2d 1406 (9th Cir. 1984). However, the assertion of a

defense that federal law has preempted that state law

upon which plaintiff relies does not itself create a federal

question .for the purposes of the removal statute. Trent

Realty Assoc. v. First Savings and Loan Ass’n of Phila-

delphia, 657 F.2d 29, 35 (3rd Cir. 1981) ; Illinois v. Kerr

McGee Chemical Corp., 667 F.2d 571 (7th Cir. 1982);

First National Bank of Aberdeen v. Aberdeen Nat’l

Bank, 627 F.2d 843 (8th Cir. 1980); Nolore v. San Diego

Federal Savings and Loan Ass’n, 663 F.2d 841 (9th Cir.

1981). A plaintiff is the “master of the complaint.”

See 13 C. Wright A, Miller & E. Cooper, Federal Prac-

tice and Procedure, Section 3566, at 488 (1975). Justice

Holmes wrote in 1913:

The party who brings a suit is master to decide

what law he will rely upon and therefore does not

determine whether he will bring a “suit arising un-

der’ the patent or other law of the United States by

his declaration or bill.

The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25

(1913).

3. The Fourth Circuit has specifically addressed

this issue in Cook v. Georgetown Steel Corp.,

770 F.2d 1272 (4th Cir. 1982).

In Cook v. Georgetown Steel Corp., supra, the Court of

Appeals for the Fourth Circuit addressed a jurisdiction-

ally similar matter as that presently before the Court.

There ten individual plaintiffs who worked at defendant

Georgetown Steel mill under a_ collective bargaining

agreement were permanently or otherwise laid off.

Georgetown Steel withheld amounts equaling vacation

payments from plaintiffs’ final paychecks, claiming that

these amounts were not yet earned. Plaintiffs filed indi-

15

vidual actions in State Court seeking payment of the

withheld vacation amounts and civil penalties under the

Court Carolina wage claim statute. Thereafter, the par-

ties settled by agreeing that plaintiffs would be paid the

amounts withheld provided, however, that in the future,

laid off employees would have to reimburse the company

for unearned vacation. Georgetown Steel did not im-

mediately pay the disputed amount. Instead it paid the

disputed amounts to only four of the laid off employees

who agreed to sign releases. Thereupon, Georgetown

Steel removed the state suit to Federal Court where a

bench trial was conducted.

On appeal, Chief Judge Harrison L. Winter, writing

for the Court, sua sponte, addressed the lower Court’s

subject matter jurisdiction. After finding that plaintiffs’

complaint did not allege any issue relating to the collec-

tive bargaining agreement and merely stated a state law

claim for unpaid wages and penalties, the Court ad-

dressed the ‘“well-pleaded complaint” rule. The Court

noted the recent reaffirming of that rule by the United

States Supreme Court in Franchise Tax Board v. Con-

struction Laborers Vacation Trust, supra. The Court

reasoned that although the matter before it raised sub-

stantial issue under both state and federal law, “if a

well-pleaded complaint does not invoke federal law, ju-

risdiction does not exist even in the stronger case where

the only real issue in the case is a federal one.” George-

town Steel, supra, at Page 1276.

Most notable, the Court, in Georgetown Steel, in Foot-

note 4, Page 1276, citing the Franchise Board case states:

The (well-pleaded complaint) rule however, may

produce awkward results, especially in cases in which

neither the obligation created by state law nor the

defendant’s factual failure to comply are in dispute,

and both parties admit that the only question for

decision is raised by a federal preemption defense.

Nevertheless, it has been correctly understood to ap-

16

ply in such situations, Id. at 12, 103 S.Ct. at 2848.

(emphasis added).

The Appeals Court then vacated the judgment of the

District Court and remanded the case back with instruc-

tion to remand to State Court.

Here, the petitioners’ claim are cast entirely in state

law and nothing substantial is being sought under the

collective bargaining agreement herein, even though the

collective bargaining agreement does establish that the

plaintiffs are entitled to certain wages.

All of the legal arguments set forth by the District

Court and the Fourth Circuit are arguments based upon

the factual premise that a federal issues is involved.

Petitioners assert for reasons already stated herein that

a federal issues is not involved and therefore the Court’s

decision based upon that factual premise are not appro-

priate or applicable.

In addition, petitioners have an independent statutory

state cause of action which they are entitled to have

heard in State Court. An independent cause of action

which gives them greater rights than they would have

under a collective bargaining agreement. The existence

of a collective bargaining agreement is merely incident

to the primary state cause of action which is for the col-

lection of wages.

17

CONCLUSION

For the reasons stated herein, petitioners request that

this Court set aside the District Court’s Order dismiss-

ing its complaint and the Fourth Circuit’s ruling affirm-

ing that decision, and direct that the District Court re-

mand this case to the Circuit Court of Harrison County,

West Virginia, so the case may proceed on its merits.

Respectfully submitted,

MICHAEL JOHN ALOI

MANCHIN, ALOI & CARRICK

1543 Fairmont Avenue

Fairmont, WV 26554

(304) 367-1862

Counsel for the Petitioners

APPENDICES

RE

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 89-2170

REUBEN J. BARTON; WILLIAM BEE; CARL D. CAIN; JAMES

E. DAvis; ULYSSES G. DEAN; CHARLES E. EVERETT;

JOHN A. FLANAGAN; FRANK FOMINKO; MICHAEL L.

FRAZIER; ROBERT H. FRAZIER; Woopy D. HAMRICK;

CHARLES E. KNICELEY; MARK E. LABENNE; CHARLES

G. LAFFERTY; MARK LANGBEIN; JAMES E. LANTZ;

KENNETH L. MATHENEY; WILLIAM L. MAY; FREDE-

RICK MCCARTNEY; HOWARD B. MITCHELL; JAMES E.

NUTTER; MICHAEL A. NUTTER; JAMES R. PATTON;

IsAAC S. PAUGH; STEPHEN B. RIEL; WILLIAM RINE-

HART; GLENN SHAW, JR.; LOWELL STOUT; DENNIS C.

STUTLER; JOHN F. SWENSKIE; RONALD J. WEBB; LAW-

RENCE D. WILCOX,

Plaintiffs-A ppellants,

versus

THE CREASEY COMPANY OF CLARKSBURG,

a West Virginia corporation; Fox GROCERY COMPANY,

a West Virginia corporation,

Defendants-A ppellees.

Appeal from the United States District Court for the

Northern District of West Virginia, at Clarksburg

Robert E. Maxwell, Chief District Judge— (CA-87-75-C )

Submitted: December 27,1989 Decided: March 13, 1990

2a

Before PHILLIPS, SPROUSE, and WILKINS, Circuit

Judges.

Affirmed by unpublished per curiam opinion.

Michael John Aloi, MANCHIN, ALOI & CARRICK,

Fairmont, West Virginia, for Appellants. Frederick F.

Holroyd, Il, HOLROYD, YOST & MERICAL, Charles-

ton, West Virginia, for Appellees.

SS

PER CURIAM:

Reuben J. Barton and other former employees of

Creasey Company appeal the district court’s dismissal of

their action against Creasey Company and Fox Grocery

Company for unpaid vacation and severance pay. The

district court granted the appellees’ petition to remove

the action from state court based on the doctrine of com-

plete preemption, holding that any claims the employees

may have had under West Virginia statutory law were

preempted by their union’s collective bargaining agree-

ment with Creasey Company. In a later order, the court

denied appellants’ motion to remand the case to state

court and granted appellees’ motion to dismiss on the

ground that the action was time-barred. We now affirm

the judgment of the district court.

I

In July 1985, the appellants were laid off, then termi-

nated, from their employment with the Creasey Company

of Clarksburg, West Virginia, shortly after Creasey’s

merger with the Fox Grocery Company. At the time of

their termination, the appellants were covered by a 1983

collective bargaining agreement between Teamsters Lo-

cal Union No. 789 and Creasey Company. That agree-

ment contained a clause providing vacation pay to spe-

cified employees. It did not expressly provide severance

3a

pay to non-management bargaining unit employees, al-

though some management employees of Creasey were en-

titled to severance pay under separate agreements.

In May 1987, the appellants filed a complaint in the

Circuit Court of Harrison County, West Virginia, seek-

ing recovery of vacation and severance pay. Count 12 of

the complaint alleged that Creasey Company and Fox

Grocery Company “have failed and refused to provide

fringe benefits for vacation pay as provided by the par-

ties’ Collective Bargaining Agreement ....” Counts 13

and 14 alleged that certain management employees re-

ceived severance pay, providing the basis for the allega-

tion in Count 15 that such action “created an implied

contract to pay all employees severance pay... ,” which

contract, Count 16 alleged, the companies had breached.

The appellees successfully petitioned for removal to the

United States District Court for the Northern District

of West: Virginia, arguing that the court had original

jurisdiction of the action under § 301 of the National

Labor Relations Act. Soon thereafter, the district court

denied the appellants’ motion to remand the case to state

court and granted the appellees’ motion to dismiss, con-

cluding that the claims were time-barred.

This appeal followed.

II

The appellants’ only claim of error regards the dis-

trict court’s finding of complete preemption and the re-

sulting denial of their motion to remand. They have not

challenged the district court’s conclusion that, if § 301

of the NLRA governs this action, it was time-barred

under the six-month statute of limitations applicable to

suits for violations of collective bargaining agreements.

See DelCostello v. International Brotherhood of Team-

sters, 462 U.S. 151 (1983). Rather, their specific argu-

ment is that their claims did not arise under § 301 be-

cause they have a cause of action for recovery of vaca-

4a

tion and severance pay under the West Virginia Wage

Payment and Collection Act, W. Va. Code §§ 21-5-1 to

-18, that is independent of, and thus not preempted by,

the collective bargaining agreement.

The West Virginia statute provides various precedures

and remedies, such as liquidated damages, attorney’s fees,

and a generous statute of limitations, to facilitate an

employee’s collection of wrongfully withheld pay and

wages. The statute does not, however, grant any entitle-

ments to pay or wages, and the appellants have not con-

tended that it does. Thus, despite their assertions that

their claims arise wholly under the West Virginia stat-

ute, the appellants’ complaint in state court shows that

any substantive pay would require interpretation of the

collective bargaining agreement. Under the doctrine of

Lingle v. Norge Division of Magic Chef, Inc., 486 U.S.

399 (1988), those claims are therefore preempted:

“(Application of state law is preempted by $301...

if such application requires the interpretation of a col-

lective-bargaining agreement.” Jd. at 413.

The necessity of interpreting the collective bargaining

agreement here is manifest. Count 12 of the complaint

expressly invoked the collective bargaining agreements

as the source of the claimed right to vacation pay, and

it is precisely with respect to the interpretation of rele-

vant provisions of the agreement that appellants and the

Creasey and Fox companies join issue on the merits.

Similarly, the existence of a collective bargaining agree-

ment that comprehensively addresses issues of wage and

pay preempts the implied contract claim for severance

pay. Any such claim could not be assessed without exam-

ining the contractual relationship between the union and

the employer, as embodied in the collective bargaining

agreement. See NLRB v. Allis-Chalmers Mfg. Co., 388

U.S. 175, 180 (1967).

The district court therefore properly concluded that

the application of state law to the claims for vacation

5a

and severance pay was preempted by § 301. To the ex-

tent that the employees’ claims invoked state law, the

court correctly held that the “complete preemption” ex-

ception to the well-pleaded complaint rule supported fed-

eral jurisdiction in this case. See Caterpillar, Inc. v.

Williams, 107 S. Ct. 2425, 2430 (1987); Franchise Tax

Board v. Construction Laborers Vacation Trust, 463 U.S.

1, 22-24 (1983).*

III

For the foregoing reasons, we affirm the district court’s

denial! of the employees’ motion to remand to state court.

As the record supports the district court’s conclusion, not

directly challenged on appeal, that the employees’ claims

were time-barred by the six-month statute of limitations

applicable to claims under § 301, we affirm the district

court’s dismissal on that ground. We dispense with oral

argument because the facts and legal contentions are

adequately developed in the materials before the court

and argument would not aid in the decisional process.

AFFIRMED

* At least with respect to the vacation pay claim, the employees’

invocation of a right purportedly created by the collective bargain-

ing agreement would also have supported original federal jurisdic-

tion, and therefore removal, under the well-pleaded complaint rule:

“When a plaintiff invokes a right created by a collective-bargaining

agreement, the plaintiff has chosen to plead what we have held must

be rerarded as a federal claim, and removal is at the defendant’s

option.” Caterpillar, 107 S. Ct. at 2433 (emphasis in original).

6a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF

WEST VIRGINIA

Civil Action No. 87-0075-C

REUBEN J. BARTON, et al.,

- Plaintiffs,

THE CREASEY COMPANY OF CLARKSBURG,

a West Virginia Corp., and Fox GRocERY Co.,

a West Virginia Corp.,

Defendants.

ORDER

[Filed Aug. 25, 1989]

Originally instituted in the Circuit Court of Harrison

County, West Virginia, this action was removed by the

defendants on July 1, 1987, on the basis of federal ques-

tion jurisdiction. Pending before the Court are defend-

ants’ Motion to Dismiss, filed October 7, 1987, and plain-

tiffs’ Motion for Remand, filed on October 22, 1987. It is

clear in reviewing the arguments of counsel that the

Court must primarily determine whether this action is

preempted by § 301 of the National Labor Relations Act

(NLRA) or whether plaintiffs have presented a state law

claim independent of a collective bargaining agreement

for § 301 preemption purposes. After careful considera-

tion of the matters presented by the parties and the ap-

plicable law, the Court concludes that the claims are

preempted by § 301 of the NLRA.

Plaintiffs are former employees of defendant Creasey

Company which on or about July 8, 1985, merged with

defendant Fox Grocery. Shortly thereafter, the Creasey

Company warehouse was closed and plaintiffs were termi-

7a

nated. Plaintiffs allege that they are uncertain whether

their employer was defendant Creasey Company or de-

fendant Fox Grocery as of the date of their termination.

Plaintiffs allege and defendants admit that pursuant to

the terms of a Collective Bargaining Agreement entered

into on November 24, 1983, by defendant Creasey Com-

pany and Teamster Local Union No. 789, on behalf of

and as the authorized bargaining representative of the

plaintiff employees, Creasey Company was required to

provide certain wages and fringe benefits to its employees.

Plaintiffs further allege and defendants admit that each

of the individual plaintiffs worked in excess of one hun-

dred twenty days in the year of 1985 to entitle them to

full vacation pay. However, plaintiffs allege that since

July 19, 1985, defendants have failed to refused to pro-

vide fringe benefits for vacation pay as provided by the

Collective Bargaining Agreement in violation of the West

Virginia Wage Payment and Collection Act. Defendants

deny this allegation.

In addition to unpaid vacation benefits, plaintiffs allege

that the defendants have created an implied contract to

pay severance pay to all employees because defendants

paid severance pay to all of its management employees

upon their termination and have paid certain employees

severance pay for time worked as union employees.

Defendants’ motion to dismiss contends that the plain-

tiffs have not brought a complaint pursuant to the West

Virginia Wage Payment and Collection Act, but are in

actuality claiming a breach of the Collective Bargaining

Agreement which triggers the preemptive force of § 301

of the LMRA. Defendants further contend that under

the Collective Bargaining Agreement plaintiffs had an

affirmative obligation to submit their claims to arbitra-

tion, which they failed to do. Moreover, defendants con-

tend that in this instance an action for breach of a col-

lective bargaining agreement pursuant to § 301 is time-

barred because it was not commenced within the six-

8a

month period of limitations for such actions. DelCestello

v. International Brohterhood of Teamsters, 462 U.S. 151

(1983).

With regard to plaintiffs’ claim of implied contract,

defendants also contend that such a claim is preempted

by the NLRA where a collective bargaining agreement is

in existence covering the employees involved. Maushund

v. Earl C. Smith, Inc., 795 F.2d 589 (6th Cir. 1986).

In response to the motion to dismiss as it relates to

unpaid vacation benefits, plaintiffs argue that this com-

plaint was brought pursuant to the provisions of the West

Virginia Wage Payment and Collection Act, West Vir-

ginia Code § 21-5-1 to § 21-5-16, and requests relief pur-

suant to the provisions of the West Virginia Wage Pay-

ment and Collection Act and that, therefore, removal of

the complaint was improvident.

On June 29, 1988, the defendants filed a motion for

leave to file additional case citation and argument, in

which defendants argue that the then recently decided

case of Lingle v. Norge Division of Magic Chefs, Ine.,

486 U.S. , 100 L.Ed.2d 410, 108 S. Ct. 1877 (1988),

clearly denies the Court jurisdiction of cases such as this

one which require interpretation of the Collective Bar-

gaining Agreement. Plaintiffs filed a response to the

additional case citation and argument of defendants in

which plaintiffs assert that the Lingle decision supports

plaintiffs’ position that their claim is an independent

statutory cause of action not preempted by federal labor

law.

By Order entered February 21, 1989, the Court de-

ferred making a ruling on the pending motions until pro-

viding counsel with an opportunity to express their views

on the question of whether ERISA is applicable to the

controversy evident in this civil action. See Holland v.

National Steel Corp., 791 F.2d 1182 (4th Cir. 1986).

9a

On April 4, 1989, plaintiffs filed a memorandum on the

applicability of ERISA.’

Plaintiffs have not addressed the motion to dismiss as

it relates to the claim of implied contract for severance

pay. Nevertheless, it is undisputed that these employees

were members of Local 789 of the Teamsters, with whom

the employer had a collective bargaining agreement. A

claim for severance pay pursuant to an implied contract

would unhesitatingly be preempted by the NLRA where

a collective bargaining agreement is in existence covering

the employees involved. NLRB v. Allis Chalmbers Mfg.

388 U.S. 175, 180 (1967). It is unquestionable that na-

tional labor ‘policy “extinguishes the individual employ-

ee’s power to order his own relations with his employer

and creates a power vested in the chosen representative

to act in the interests of all employees.” Maushund, 795

F.2d at 590, n.1 (6th Cir. 1986). The employees under

such circumstances are bound by the decisions made by

the union during the bargaining process and are re-

strained from subsequently claiming entitlement to addi-

tional rights, privileges, wages, conditions, ete., such as

the severance pay claimed by plaintiffs herein.

With regard to the issue of preemption of the unpaid

vacation benefits, plaintiffs correctly argue that the

presence of federal question jurisdiction is generally de-

termined by the “well-pieaded complaint” rule. Gully v.

First National /3ank, 299 U.S. 109, 112-13 (1936) ; Lowis-

ville & Nashville R.R. v. Mottley, 211 U.S. 149 (1908).

Consequently, an action originally instituted in the state

court can be properly removed on the basis of federal

question jurisdiction “only when a federal question is

presented on the face of the plaintiff’s properly pleaded

1 While it is questionable that a benefit plan was in existence

which would trigger ERISA preemption, See, Fort Halifax Packing

Co., Inc. ». Cowne, 96 L.Ed.2d 1 (1987), the Court need not reach

this question in light of the determination that § 301 preemption

is mandated.

10a

complaint.” Caterpillar, Inc. v. Williams, 107 S.Ct. 2425,

2429 (1987). It is now well established, however, that

the doctrine of “complete preemption” serves as an ex-

ception to the well-pleaded complaint rule. Franchise Tax

Bad. v. Construction Laborers Vacation Trust, 463 U.S.

1, 22-24 (1983). Notably, the complete preemption ex-

ception to the well-pleaded complaint rule “is applied pri-

marily in cases raising claims preempted by § 301 of the

LMRA.” Caterpillar, 107 S.Ct. at 2430.

Section 30l(a) of the LMRA, 29 U.S.C. § 185a, pro-

vides that:

Suits for violations of contracts between an em-

ployer and a labor organization representing em-

ployees in an industry affecting commerce . . . may

be brought in any district court of the United States

having jurisdiction of the parties. ...

It has been established that Congress enacted § 301

with the intent that federal labor law doctrines would

uniformly prevail over inconsistent state law. Teamsters

v. Lucas Flower Co., 369 U.S. 95 (1962). However, the

Supreme Court has held that a state claim, is preempted

by $301 “only if such application requires the interpre-

tation of a collective-bargaining agreement.” Lingle, 108

S. Ct. at 1885. If it is determined that the claimant has

alleged a colorable state-law cause of action, the Court

must determine whether the state claim is independent

of the collective bargaining agreement and therefore not

preempted. Thus, “the preemptive effect of $301...

depends upon the elements of the purported state-law

claim.” Childers v. The Chesapeake and Potomac Tele-

phone Company of Virginia, et al., F.2d , 1989

WL 83163 (4th Cir. July 28, 1989).

It is clear from the admissions made in the defendant’s

answer that a colorable state cause of action under the

West Virginia Wage Payment and Collection Act has

been raised by the plaintiffs. The Court must now decide

lla

whether this colorable state-law cause of action is in-

dependent of the Collective Bargaining Agreement.

Plaintiffs claim that the defendants have not timely

paid accrued vacation benefits. “As a precondition to

recovery, it is necessary for the plaintiffs first to prove

entitlement to such pay.” Lowe v. Imperial Colliery Co.,

377 S.E.2d 652, 657 (W. Va. 1988).

The elements of the state-law claim in the present case

clearly_distinguish it from Lingle. Here, in contrast to

Lingle, the employees’ claims are based on a provision in

the Collective Bargaining Agreement which gave rise tc

the dispute between the defendants and former employees.

West Virginia Code § 21-5-4 does not create entitlement

to vacation pay; it provides for payment of wages, which

include accrued fringe benefits, within a certain specified

time upon termination of employment. Unlike the cir-

cumstances in Lingle and unlike those in Fort Halifax,

West Virginia law did not create the vacation benefits in

dispute. Rather, the employees’ claims against Creasey

and Fox are based on a provision for vacation benefits

created by the Collective Bargaining Agreement. Thus,

an interpretation of the Collective Bargaining Agree-

ment is unavoidable.* Under such circumstances, Lingle

teaches that the cause of action is preempted by federal

labor law. It is accordingly

ORDERED that plaintiffs’ Motion for Remand be, and

hereby is, DENIED as this cause of action is preempted

by § 301 of the LMRA.

Defendants support their motion to dismiss by arguing

that the claims are time barred by the applicable statute

* The Court is aware that the West Virginia Supreme Court of

Appeals reaches an opposite conclusion in Lowe, but the Court

believes that the determination herein is consistent with recent

interpretations of Lingle by the U.S. Court of Appeals for the

Fourth Circuit. See, Briggs, et al. v. Heinz, U.S.A., No. 88-3533

(4th Cir. March 17, 1989) (UP); Childers, 1989 WL 83163.

12a

of limitations. In DelCostello v. International Brother-

hood of Teamsters, 462 U.S. 151, 103 8.Ct. 2281 (1983),

the Supreme Court held that the applicable statute of

limitations in breach of collective bargaining suits against

an employer is governed by the six month limitations pe-

riod for making charges of unfair labor practices to the

NLRB pursuant to §10b of the NLRA. Defendant ar-

gues that the plaintiffs are bound by the accrual date of

July 19, 1985, which is alleged in the complaint to be the

date that defendants failed to pay the benefits claimed

therein. Inasmuch as the complaint was not filed until

June 1, 1986, defendants argue that the action is barred.

Plaintiffs rely entirely on the jurisdictional nature of

the issue before the Court and have not presented the

Court with any arguments which would dispute the un-

timeliness of the complaint if it were proceeding under

$301 of the LMRA. Inasmuch as plaintiffs have not

presented the Court with any equitable estoppel argument

or countered the accrual date advanced by the defendants,

it is

ORDERED that defendants’ motion to dismiss be, and

hereby is, GRANTED. The Clerk of Court is directed to

send an authenticated copy of this Order to counsel of

record and to remove this action from the docket of the

Court.

ENTER: August 25th, 1989.

/s/ Robert [Illegible]

United States District Judge

13a

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF WEST VIRGINIA

Case Number: 87-75-C

REUBEN J. BARTON, et al.,

Plaintiffs,

73

THE CREASEY COMPANY OF CLARKSBURG,

a West Virginia Corp., and Fox GROCERY Co.,

a West Virginia Corp.,

Defendants.

JUDGMENT IN A CIVIL CASE

™! Decision by Court. This action came to trial or hear-

ing before the Court. The issues have been tried or

heard and a decision has been rendered.

IT IS ORDERED AND ADJUDGED

Plaintiffs’ Motion for Remand is denied. Defend-

ants’ Motion to Dismiss is Granted. Clerk is to re

move this action from the docket of the Court.

Date August 25, 1989

Dr. WALLY EDGELL

‘s/ Linda Pukins

(By) Deputy Clerk

14a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 89-2170

REUBEN J. BARTON; WILLIAM BEE; CARL D. CAIN; JAMES

E. Davis; ULysses G. DEAN; CHARLES E. EVERETT;

JOHN A. FLANAGAN; FRANK FOMINKO; MICHAEL L.

FRAZIER; ROBERT H. FRAZIER; Woody D. HAMRICK;

CHARLES E. KNICELEY; MARK E. LABENNE; CHARLES

G. LAFFERTY; MARK LANGBEIN; JAMES E. LANTZ;

KENNETH L. MATHENEY; WILLIAM L. MAY; FREDE-

RICK MCCARTNEY; HOWARD B. MITCHELL; JAMES E.

NUTTER; MICHAEL A. NUTTER; JAMES R. PATTON;

IsAAC S. PAUGH; STEPHEN B. RIEL; WILLIAM RINE-

HART; GLENN SHAW, JR.; LOWELL STOUT; DENNIS C.

STUTLER; JOHN F. SWENSKIE; RONALD J. WEBB; LAW-

RENCE D. WILCOX,

Plaintiffs-A ppellants,

We

THE CREASEY COMPANY OF CLARKSBURG,

a West Virginia corporation; Fox GROCERY COMPANY,

a West Virginia corporation,

Defendants-A ppellees.

On Petition for Rehearing with

Suggestion for Rehearing In Banc

[Filed Apr. 11, 1990]

- 15a

The appellants’ petition for rehearing and suggestion

for rehearing in bane were submitted to this Court. As

no member of this Court or the panel requested a poll

on the suggestion for rehearing in banc, and

As the panel considered the petition for rehearing and

is of the opinion that it should be denied,

IT IS ORDERED that the petition for rehearing and

suggestion for rehearing in banc are denied.

Entered at the direction of Judge Phillips with the con-

currence of Judge Sprouse and Judge Wilkins.

For the Court,

/s/ John M. Greacen

Clerk

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APPENDIX D

STATUTORY PROVISIONS INVOLVED

West Virginia Code, Volume 8 (1989 Replacement

Volume) :

$ 21-5-1. Definitions.

As used in this article:

(a) The term “firm” includes any partnership,

association, joint-steck company, trust, division of a

corporation, the administrator or executor of the es-

tate of a deceased individual, or the receiver, trustee,

or successor of any of the same, or officer thereof,

employing any person.

(b) The term “employee” or “employees” includes

any person suffered or permitted to work by a per-

son, firm or corporation.

(c) The term “wages” means compensation for

labor or services rendered by an employee, whether

the amount is determined on a time, task, piece, com-

mission or other basis of calculation. As used in

sections four [$$ 21-5-4, 21-5-5, 21-5-8a, 21-5-10 and

21-5-12], five, eight-a, ten and twelve of this article,

the term “wages” shall also include then accrued

fringe benefits capable of calculation and payable

directly to an employee; Provided, That nothing

herein contained shall require fringe benefits to be

ealculated contrary to any agreement between an

employer and his employees which does not contra-

dict the provisions of this article.

(d) The term ‘‘commissioner” means commissioner

of labor or his designated representative.

(e) The term “railroad company” includes any

firm or corporation engaged primarily in the busi-

ness of transportation by rail.

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(f) The term “special agreement” means an ar-

rangement filed with and approved by the commis-

sioner whereby a person, firm or corporation is per-

mitted upon a compelling showing of good cause to

establish regular paydays less frequently than once

in every two weeks: Provided, That in no event

shall the employee be paid in full less frequently

than once each calendar month on a regularly estab-

lished schedule.

(¢) The term “deductions” includes amounts re-

quired by law to be withheld, and amounts author-

ized for union or club dues, pension plans, payroll

savings plans, credit unions, charities and hospitali-

zation and medical insurance.

(h) The term “officer” shall include officers or

agents in the management of a corporation or firm,

who knowingly permit the corporation or firm to

violate the provisions of this article.

(i) The term “wages due” shall include at least

all wages earned up to and including the fifth day

immediately preceding the regular payday.

(j) The term ‘construction’ means the furnish-

ing of work in the fulfillment of a contract for the

construction, alteration, decoration, painting or im-

provement of a new or existing building, structure,

roadway or pipeline, or any part thereof, or for the

alteration, improvement or development of real prop-

erty: Provided, That construction performed for the

owner or lessee of a single family dwelling or a fam-

ily farming enterprise is excluded.

(k) The term “minerals” means clay, coal flag-

stone, gravel, limestone, manganese, sand, sandstone,

shale, iron ore and any other metallurgical ore.

(1) The term “fringe benefits” means any benefit

provided an employee or group of employees by an

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18a

employer, or which is required by law, and includes

regular vacation, graduated vacation, floating vaca-

tion, holidays, sick leave, personal leave, production

incentive bonuses, sickness and accident benefits and

benefits relating to medical and peusion coverage.

(m) The term “employer” means any person, firm

or corporation employing any employee.

(n) The term “doing business in this state” means

having employees actively engaged in the intended

principal activity of the person, firm or corporation

in West Virginia. (1917, c. 50, $1; Code 1923, ec.

54, § 71n; 1975, ec. 147; 1981, ce. 212; 1987, ¢. 73.)

$ 21-5-3. Payment of wages by employers other

than railroads; assignments of wages.

Every person, firm or corporation doing business

in this State, except railroad companies as provided

in section one [§ 21-5-1] of this article, shall settle

with its employees at least once in every two weeks,

unless otherwise provided by special agreement, and

pay them the wages due, less authorized deductions

and authorized wage assignments, for their work or

services in lawful money of the United States, or by

the cash order as described and required in the next

succeeding section [§$ 21-5-4] of this article or by

any method of depositing immediately available

funds in an employee’s demand or time account in

a bank, credit union or savings and loan institution

that may be agreed upon in writing between the

employee and such person, firm or corporation, which

agreement shall specifically identify the employee,

the financial institution, the type of account and the

account number: Provided, that nothing herein con-

tained shall be construed in a manner to require any

person, firm or corpora‘ion to pay employees by de-

positing funds in a financial institution: Provided

further, that if, at any time of payment, any em-

19a

ployee shall be absent from his regular place of

labor and shall not receive his wages through a duly

authorized representative, he shall be entitled to

such payment at any time thereafter upon demand

upon the proper paymaster at the place where such

wages are usually paid and where the next pay is

due.

Nothing herein contained shall affect the right of

an employee to assign part of his claim against his

employer except as hereinafter provided.

No assignment of or order for future wages shall

be valid for a period exceeding one year from the

date of such assignment or order. Such assignment

or order shall be acknowledged by the party making

the same before a notary public or other officer

authorized to take acknowledgments, and such order

or assignment shall specify thereon the total amount

due and collectible by virtue of the same and three

fourths of the periodical earnings or wages of the

assignor shall at all times be exempt from such

assignment or order and no assignment or order

shall be valid which does not so state upon its face:

Provided further, that no such order or assignment

shall be valid unless the written acceptance of the

employer of the assignor to the making thereof, is

endorsed thereon: Provided further, that nothing

herein contained shall be construed as affecting the

right of employer and employees to agree between

themselves as to deductions to be made from the

payroll of employees; And provided further, that

nothing herein contained shall be construed as af-

fecting the right of teachers who have elected to

become members of a county teachers’ retirement

system, as permitted by section two [§ 36 7A-2],

article seven A, chapter thirty-six, acts of the legis-

lature of West Virginia, regular session, one thou-

sand nine hundred forty-one, to make assignments

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of or orders for future wages to such systems for

periods coextensive with the term of their contracts

of employment. (1887, ¢. 68, $$ 1, 2; Code 1923,

e. 1511, §$ 75, 76; 1987, c. 18; 1948, « 7; 1979,

c. 119.)

$ 21-5-4. Cash orders; employees separated from

payroll before paydays.

(a) In lieu of lawful money of the United States,

any person, firm or corporation may compensate

employees for services by cash order which may in-

clude checks or money orders on banks convenient

to the place of employment where suitable arrange-

ments have been made for the cashing of such check

by employees for the full amount of wages.

(b) Whenever a person, firm or corporation dis-

charges an employee, such person, firm or corpora-

tion shall pay the employee’s wages in full within

seventy-two hours.

(c) Whenever an employee quits or resigns, the

person, firm or corporation shall pay the employee’s

wages no later than the next regular payday, either

through the regular pay channels or by mail if re-

quested by the employee, except that if the employee

gives at least one pay period’s notice of intention to

quit the person, firm or corporation shall pay all

wages earned by the employee at the time of quitting.

(d) When work of any employee is suspended as

a result of a labor dispute, or when an employee for

ary reason whatsoever is laid off, the person, firm,

or corporation shall pay in full to such employees

not later than the next regular payday, either

through the regular pay channels or by mail if re-

quested by the employee, wages earned at the time

of suspension or layoff.

(e) If a person, firm or corporation fails to pay

an employee wages as required under this section,

2la

such person, firm or corporation shall, in addition

to the amount due, be liable to the employee for

liquidated damages in the amount of wages at his

regular rate for each day the employer is in default,

until he is paid in full, without rendering any serv-

ice therefor: Provided, however, that he shall cease

to draw such wages thirty days after such de-

fault. Every employee shall have such lien and all

other rights and remedies for the protection and en-

forcement of such salary or wages, as he would

have been entitled to had he rendered service there-

for in the manner as last employed; except that,

for the purpose of such liquidated damages, such

failures shall not be deemed to continue after the

date of the filing of a petition in bankruptcy with

respect to the employer if he is adjudicated bank-

rupt upon such petition. (1891, ce. 76, $1; Code

1923, c. 15H, § 80; 1925, c« 37; 1975, c. 147.)

§ 21-5-6. Refusal to pay wages or redeem orders.

If any person, firm or corporation shall refuse for

the period of five days to settle with and pay any of

its employees at the intervals of time as provided in

section three [$ 21-5-3] of this article, or to provide

fringe benefits after the same are due, or shall ne-

glect or refuse to redeem any cash orders provided for

in this article, within the time specified, if presented,

and suit be brought for the amount overdue and un-

paid, judgment for the amount of such claim proven

to be due and unpaid, with legal interest thereon

until paid, shall be rendered in favor of the plaintiff

in such action; and, if the employee continues to hold

the cash order herein provided for, given for pay-

ment of labor, in case of the insolvency of the person,

firm or corporation giving same, such employee shall

not lose his lien and preference under existing laws.

(1887, c. 68, §5; Code 1923, c. 15H, § 79; 1981,

ec. 212. )

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$ 21-5-10. Provisions of law may not be waived by

agreement.

Except as provided in section thirteen [§ 21-5-13],

no provision of this article may in any way be con-

travened or set aside by private agreement, and the

acceptance by an employee of a partial payment of

wages shall not constitute a release as to the balance

of his claim and any release required as a condition

of such payment shall be null and void. (1975, c.

147.)

$ 21-5-12. Employees’ remedies.

(a) Any person whose wages have not been paid

in accord with this article, or the commissioner or

his designed representative, upon the request of such

person, may bring any legal action necessary to col-

lect a claim under this article. With the consent of

the employee, the commissioner shall have the power

to settle and adjust any claim to the same extent as

might the employee.

(b) The court in any action brought under this

article may, in the event that any judgment is

awarded to the plaintiff or plaintiffs, assess costs of

the action, including reasonable attorney fees against

the defendant. Such attorney fees in the case of ac-

tions brought under this section by the commissioner

shall be remitted by the commissioner to the treas-

urer of the State. The commissioner shall not be re-

quired to pay the filing fee or other costs or fees of

any nature or to file bond or other security of any

nature in connection with such action or with pro-

ceedings supplementary thereto, or as a condition

precedent to the availability to the commissioner of

any process in aid of such action or proceedings.

The commissioner shall have power to join various

claimants in one claim or lien, and in case of suit to

join them in one case of action. (1975, ¢c. 147.)