                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                              ________________

                                      No. 12-2647
                                   ________________

                                   JAMES CIFERNI,
                                            Appellant

                                            v.

                       DAY & ZIMMERMAN, INC;
                  THE DAY & ZIMMERMAN GROUP, INC;
                      DAY& ZIMMERMAN NPS, INC.;
              DAY& ZIMMERMAN MANAGEMENT SERVICES, INC
                           ________________

                     Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                       (D.C. Civil Action No. 2-12-cv-02520)
                    District Judge: Honorable Eduardo C. Robreno
                                  ________________

                                 Argued March 5, 2013

            Before: RENDELL, AMBRO, and VANASKIE, Circuit Judges

                              (Opinion filed: June 27, 2013)

Patrick F. Flanigan, Esquire (Argued)
239 Dickinson Avenue
P.O. Box 42
Swarthmore, PA 19081-0042

      Counsel for Appellant

William J. Delany, Esquire    (Argued)
Erica E. Flores, Esquire
Morgan, Lewis & Bockius
1701 Market Street
Philadelphia, PA 19103

       Counsel for Appellees
                                      ________________

                                          OPINION
                                      ________________

AMBRO, Circuit Judge

       Appellant James Ciferni, a union employee subject to a collective bargaining

agreement (“CBA”), asserted Pennsylvania common law claims for wrongful discharge

and refusal to rehire in retaliation for claiming workers‟ compensation. The District

Court dismissed the action on the ground that § 301 of the Labor Management Relations

Act, 29 U.S.C. § 185 (“LMRA”), preempted Ciferni‟s state law claims and, under that

federal provision, his complaint was untimely. For the reasons explained below, we

affirm the District Court‟s dismissal of those claims.

                                 I.      BACKGROUND

       Appellee Day & Zimmerman1 is an industrial defense contractor, providing

maintenance, labor, and construction services to the power industry. Among other things,

it supplies power stations with temporary and seasonal workers during planned

maintenance and repair outages. D&Z staffs these positions with workers from local

unions pursuant to various CBAs. One such agreement is the National Power Generation

Maintenance Agreement (“NPGMA”), a multi-employer CBA with the International

Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers & Helpers, AFL-

1
 “Day & Zimmerman” refers to affiliated entities Day & Zimmerman, Inc., The Day &
Zimmerman Group, Inc., Day & Zimmerman NPS, Inc., and Day & Zimmerman
Management Services, Inc. (collectively “D&Z”).

                                             2
CIO (“Boilermakers”). At all relevant times, Ciferni, a common arc welder, was a

member of the Boilermakers and subject to the NPGMA.

       In April 2010, D&Z hired Ciferni to staff a power station during an outage. After

suffering a back injury during his first shift, Ciferni filed a claim for workers‟

compensation in May 2010; this claim was resolved by agreement of the parties in May

2011.2 When D&Z refused to re-hire Ciferni in January 2011 and again in February

2011, however, he filed grievances through the local Boilermakers‟ representative,

claiming wrongful retaliation and failure to rehire because of his April 2010 workers‟

compensation claim. D&Z responded that its decision not to re-hire was based on

Ciferni‟s failure to report immediately his April 2010 workplace injury, a violation of the

terms of the NPGMA. Both of Ciferni‟s grievances were finally resolved against him in

August 2011 through the NPGMA‟s grievance process.

       Ciferni filed this lawsuit in April 2012 in Pennsylvania court. D&Z removed the

action to the District Court on the ground that Ciferni‟s claims were preempted by § 301

of the LMRA, and then moved to dismiss the complaint for failure to state a claim.

Ciferni responded by asking the District Court to remand his suit to state court; he argued

that it was within the exclusive purview of Pennsylvania state courts whether a public

policy exception should be created to permit union workers to pursue common law

wrongful termination and retaliation claims. In May 2012, the District Court issued an

order (i) denying Ciferni‟s motion to remand, based on its conclusion that his claims were


2
 Ciferni filed his claim pursuant to the Pennsylvania Workers‟ Compensation Act, 77 Pa.
Stat. § 1 et seq.

                                              3
completely preempted by the LMRA, and (ii) granting D&Z‟s motion to dismiss on the

ground that Ciferni‟s complaint was untimely under § 301, which requires an employee

to file a claim within six months after exhausting his contractual remedies under the

CBA.3 Ciferni timely appealed the District Court‟s denial of his motion to remand,

claiming that his complaint does not arise under federal law within the meaning of 28

U.S.C. § 1331 because his state law claims are not completely preempted under § 301 of

the LMRA.

               II.    JURISDICTION AND STANDARD OF REVIEW

       The District Court purported to exercise original jurisdiction over Ciferni‟s claims

pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 185(a). We have jurisdiction over the

District Court‟s final order under 28 U.S.C. § 1291.

       We exercise plenary review of a motion to dismiss. Nuveen Mun. Trust ex rel.

Nuveen High Yield Mun. Bond Fund v. WithumSmith Brown, P.C., 692 F.3d 283, 293 (3d

Cir. 2012) (citing Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 579 (3d Cir.

2003)). In doing so, “[w]e „accept as true all well-pled factual allegations in the

complaint and all reasonable inferences that can be drawn from them, and we affirm the

order of dismissal only if the pleading does not plausibly suggest an entitlement to

relief.‟” Id. (quoting Fellner v. Tri-Union Seafoods, L.L.C., 539 F.3d 237, 242 (3d Cir.

2008)).


3
  It is uncontested that, when Ciferni filed his complaint in April 2012, more than six
months had lapsed from the time that any of his three underlying grievances were
resolved. See J.A. at 23 (workers‟ compensation claim resolved May 2011), 104–05
(wrongful retaliation and failure to rehire claims resolved August 2011).

                                             4
       Similarly, our review of the denial of a motion to remand is plenary “to the extent

that the underlying basis is a legal question.” Ario v. Underwriting Members of Syndicate

53 at Lloyds for 1998 Year of Account, 618 F.3d 277, 287 (3d Cir. 2010) (citing

Werwinski v. Ford Motor Co., 286 F.3d 661, 665 (3d Cir. 2002)). The issue of whether a

district court had subject matter jurisdiction is a legal question. Tellado v. IndyMac

Mortg. Servs., 707 F.3d 275, 279 (3d Cir. 2013) (citing Nat’l Union Fire Ins. Co. v. City

Sav., F.S.B., 28 F.3d 376, (3d Cir. 1994)).

       District Courts have original jurisdiction over any civil action “arising under the

Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Removal of an

action brought in state court to federal district court is permitted in any civil action in

which the district courts have “original jurisdiction.” Id. § 1441(a). Where a state law

cause of action is completely preempted by a federal statute, the suit is deemed within the

original jurisdiction of the district court and subject to removal. See AVCO Corp. v. Aero

Lodge No. 735, 390 U.S. 557, 559–60 (1968).

                                    III.   DISCUSSION

A.     Preemption Under § 301 of the LMRA

       Ordinarily, the well-pleaded complaint rule prevents an action from being

removed to federal court where federal jurisdiction is not presented on the face of the

complaint. Berda v. CBS Inc., 881 F.2d 20, 21 n.1 (3d Cir. 1989). The exception to this

rule is the doctrine of complete preemption, which applies to claims arising in areas in

which “the preemptive force of federal law is so „powerful as to displace entirely any

state cause of action.‟” Id. (quoting Franchise Tax Bd. v. Constr. Laborers Vacation


                                               5
Trust, 463 U.S. 1, 23 (1983)). “„[A]ny civil complaint raising this select group of claims

is necessarily federal in character,‟” and thus completely preempted by the applicable

federal statute. Pascack Valley Hosp., Inc. v. Local 464A UFCW Welfare, 388 F.3d 393,

399 (3d Cir. 2004) (quoting Metro Life Ins. Co. v. Taylor, 481 U.S. 58, 63–64 (1987);

citing Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 8 (2003)).

       “Section 301 of the LMRA is one such instance of complete preemption; it

displaces entirely „any state cause of action „for violation of contracts between an

employer and a labor organization.‟” Berda, 881 F.2d at 22 n.1 (quoting Franchise Tax

Bd., 463 at 23). This is so because the LMRA, which restricts the activities and power of

labor unions, provides for federal court jurisdiction to enforce CBAs.

       Suits for violation of contracts between an employer and a labor
       organization representing employees in an industry affecting commerce as
       defined in this chapter, or between any such labor organizations, may be
       brought in any district court of the United States having jurisdiction of the
       parties, without respect to the amount in controversy or without regard to
       the citizenship of the parties.

LMRA § 301(a), 29 U.S.C. § 185(a).

       “On its face, this statute provides for federal jurisdiction over controversies

involving collective bargaining agreements. However, the Supreme Court has concluded

that section 301 also expresses a congressional intent that the federal courts develop a

federal common law to be applied in suits for enforcement of collective bargaining

agreements.” Berda, 881 F.2d at 22 (citing Textile Workers v. Lincoln Mills, 353 U.S.

448, 451 (1957)). “When a suit stating a claim under section 301 is brought, state




                                              6
contract law is displaced, and the collective agreement is interpreted under this federal

common law.” Id. (citing Teamsters v. Lucas Flour Co., 369 U.S. 95 (1962)).

       The preemptive scope of § 301 is not limited to suits alleging a violation of the

applicable CBA. Rather, “when resolution of a state-law claim is substantially dependent

upon analysis of the terms of an agreement made between the parties in a labor contract,

that claim must either be treated as a § 301 claim or dismissed as pre-empted by federal

labor-contract law.” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220 (1985) (internal

citation omitted).

       However, “not every dispute concerning employment, or tangentially involving a

provision of a collective-bargaining agreement, is pre-empted by § 301.” Id. at 211. In

particular, § 301 does not preempt state law claims if they exist independently of a CBA

and if their resolution does not depend on analysis of the agreement. For instance, in

Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 406 (1988), the Supreme

Court held that a union employee‟s Illinois claim of retaliatory discharge for filing a

workers‟ compensation claim was not preempted by § 301 because the tort had been

recognized as an independent state law remedy and did not require interpretation of the

labor agreement. Id. at 405–07. Thus, whether Ciferni‟s claims are preempted by the

LMRA depends on Pennsylvania‟s recognition of state law remedies for union employees

and their capacity for resolution independent of the CBA.4


4
  We reject Ciferni‟s contention that federal court resolution of his claims is improper
because “judicial public policy arises only from litigation in state courts on the merits of
the claims.” Ciferni Br. at 7. “While the nature of the state tort is a matter of state law,
the question whether the [state] tort is sufficiently independent of federal contract

                                              7
B.     Wrongful Termination and Retaliation Claims under Pennsylvania Law

       In Geary v. U.S. Steel Corp., 319 A.2d 174 (Pa. 1974), Pennsylvania first

recognized a narrow public policy exception to the at-will employment doctrine in

holding that at-will employees may maintain tort suits for wrongful discharge when their

terminations violate a “clear mandate of public policy.” Id. at 184–85. This exception

was applied in the context of terminating an at-will employee in retaliation for filing a

workers‟ compensation claim in Shick v. Shirey, 716 A.2d 1231, 1232 (Pa. 1998).

       Pennsylvania courts consistently have held, however, that those common law

wrongful discharge suits cannot be brought by union employees subject to a CBA. The

first case to consider this issue was Phillips v. Babcock & Wilcox, 503 A.2d 36 (Pa.

Super. Ct. 1986), which held that the exception established by Geary did not apply to

union employees. Id. at 38. In reaching its decision, the Court reasoned that such an

extension would be inconsistent with the exception‟s purpose “to provide a remedy for

employees with no other recourse against wrongful discharge.” Id. at 37. The Court

made clear that the public policy exception was not intended to vindicate public policy in

all circumstances, but only where its violation would otherwise go without a remedy,

explaining:

             The Supreme Court‟s decision in Geary was clearly concerned with
       the protection of corporate personnel in the areas of employment not
       covered by labor agreements . . . . The Court‟s purpose was to provide a
       remedy for employees with no other recourse against wrongful discharge.
             Appellant and all like-situated employees are not without recourse
       when faced with indiscriminate discharge even when the discharge violates

interpretation to avoid pre-emption is, of course, a question of federal law.” Allis-
Chalmers, 471 U.S. at 213–14.

                                             8
       public policy. The collective bargaining agreement in the instant case
       provides protection against suspension or discharge without “proper cause.”
       Surely, in pursuing a grievance under the provisions of the agreement, if
       appellant can show that his discharge was in retaliation for his filing a
       workmen‟s compensation claim, he will have proved that his discharge was
       not for “proper cause.” It would appear, therefore, that appellant will then
       be entitled to the remedies provided in the agreement.

Id. (internal quotation marks and citations omitted).

       Thus, according to Phillips, union employees have no need for the protection

provided by the public policy exception because their public policy interests may be

vindicated through the grievance process, by which they may challenge the basis for the

allegedly wrongful employment action and, if successful, obtain any bargained-for

remedies. This proposition has been followed uniformly by Pennsylvania courts, e.g.,

Cairns v. SEPTA, 538 A.2d 659, 660–61 (Pa. Commw. Ct. 1998); Ross v. Montour R.R.

Co., 516 A.2d 29, 32 (Pa. Super. Ct. 1986), as well as by federal courts interpreting

Pennsylvania law, e.g., Slater v. Susquehanna Cnty., 613 F. Supp. 2d 653, 669 (M.D. Pa.

2009); Harper v. Am. Red Cross Blood Servs., 153 F. Supp. 2d 719, 721 (E.D. Pa. 2001).5

       In this context, union-represented employees who wish to contest a termination or

hiring decision as without proper cause must do so through the grievance procedure

outlined in their CBAs and may not assert independent causes of action under

Pennsylvania law, as the protection provided by the CBA negates any need for allowing


5
  We have similarly recognized in non-precedential opinions that CBA-covered
employees do not have state law causes of action in Pennsylvania for wrongful
termination. See Coppola v. JNESO-Pocono Med. Ctr., 400 F. App‟x 683, 684–85 (3d
Cir. 2010); Raczkowski v. Empire Kosher Poultry, 185 F. App‟x 117, 119 (3d Cir. 2006).
We merely note this historical fact, as by tradition we do not cite not precedential
opinions as an authoritative basis for a decision.

                                             9
an independent state law claim in the interest of public policy. 6 Accordingly, Ciferni had

no independent Pennsylvania cause of action for wrongful discharge or retaliation for

filing a workers‟ compensation claim.

                                        * * * * *

       For the forgoing reasons, we hold Ciferni‟s Pennsylvania common law claims for

wrongful discharge and retaliation are completely preempted by § 301 of the LMRA.

Thus the District Court correctly denied his motion to remand to state court. Because

Ciferni failed to file this action within six months of when he exhausted his

administrative remedies under the CBA, his complaint was properly dismissed as

untimely under § 301.




6
  Refusal-to-hire claims are arguably distinguishable from wrongful discharge claims, as
CBAs generally contain express prohibitions on terminating without cause but do not
necessarily include parallel protections with respect to hiring. Nonetheless we are
satisfied Ciferni was protected adequately from retaliatory hiring decisions by the CBA
grievance process such that the public policy exception is not implicated. Because
resolution of his state-law retaliation claim is “substantially dependent on analysis of
[the] collective bargaining agreement,” Caterpillar Inc. v. Williams, 482 U.S. 386, 394
(1987) (internal quotation marks and citations omitted), it also is preempted by § 301.

                                            10
