                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 07a0164n.06
                           Filed: February 28, 2007

                                          No. 05-4114

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


DORMAN ANGEL, et al.,                            )
                                                 )
       Plaintiffs-Appellants,                    )
                                                 )
v.                                               )    ON APPEAL FROM THE UNITED
                                                 )    STATES DISTRICT COURT FOR THE
UNITED    PAPERWORKERS                           )    SOUTHERN DISTRICT OF OHIO
INTERNATIONAL UNION (PACE)                       )
LOCAL     1967,   UNITED                         )
PAPERWORKERS INTERNATIONAL                       )
UNION, INTERNATIONAL PAPER                       )
COMPANY,                                         )
                                                 )
       Defendants-Appellees,                     )
                                                 )
SMART PAPER LLC,                                 )
                                                 )
       Defendant.                                )
                                                 )

Before: GIBBONS and McKEAGUE, Circuit Judges; and FORESTER, District Judge.*

       JULIA SMITH GIBBONS, Circuit Judge. Plaintiffs-appellants appeal the district court’s

dismissal of and grant of summary judgment on their claims pursuant to § 9(a) of the National Labor

Relations Act (“NLRA”), 29 U.S.C. § 159(a), § 301(a) of the Labor Management Relations Act

(“LMRA”), 29 U.S.C. § 185, and § 411(a)(1) of the Labor Management Reporting and Disclosure



       *
       The Honorable Karl S. Forester, United States District Judge for the Eastern District of
Kentucky, sitting by designation.

                                                -1-
Act (“LMRDA”), 29 U.S.C. § 411(a)(1), against their former employer, International Paper

Company (“IP”), and the international and local unions of which they were members, the United

Paperworkers International Union (“international union”) and the United Paperworkers International

Union Local 1967 (“local union,” collectively “the Union”), attempting to recover severance pay to

which the plaintiffs were allegedly entitled when IP sold the paper mill at which plaintiffs were

employed (“B Street Mill”). For the following reasons, we affirm the district court’s decision.

                                                I.

       IP acquired the B Street Mill and succeeded to the obligations established by a collective

bargaining agreement (“CBA”) between the previous owner, the Union, and the B Street employees.

This CBA was effective until September 19, 1994, but an extension agreement extended it until

September 21, 1998, and on a year-to-year basis thereafter until IP or the Union terminated it. The

CBA itself contained no provision related to severance pay. The extension agreement noted,

however, that “[a]ny job reductions and/or elimination of positions that may occur will be offset

through normal attrition, reassignment and/or negotiated severance.”

       In May 1996, the Union and the previous owner of the B Street Mill entered into a

reconfiguration agreement. The reconfiguration agreement, to which IP also succeeded, provided

terms under which employees would receive severance pay. The B Street Mill was undergoing a

two-year reconfiguration which would result in dramatic workforce reductions. Accordingly, the

reconfiguration agreement provided that employees who were involuntarily terminated as a result

of cost reductions at the B Street Mill would receive severance pay.         This portion of the

reconfiguration agreement was dubbed Severance Policy # 817.

       On December 29, 2000, IP sold the B Street Mill to Smart Papers. The asset purchase


                                                -2-
agreement provided that Smart Papers would accept employment applications from the IP employees

then working at the B Street Mill. If Smart Papers hired fewer than 219 of the IP employees, the

asset purchase agreement provided that Smart Papers would pay a pro rata share of the severance pay

owed to each employee below the 219 minimum that Smart Papers declined to hire.

       In January 2001, pursuant to the NLRA, IP began effects bargaining with the Union to

negotiate the impact of the sale on the employees of the B Street Mill. IP and the Union concluded

an effects bargaining package (“EBP”), which provided in pertinent part:

       As a result of the sale of the Hamilton B Street Mill to SMART Papers, LLC,
       International Paper proposes the following benefits to the PACE International Union
       and its affiliate Local 1967.

       The following proposal is contingent upon timely ratification of this package by
       January 31, 2001.

       SEVERANCE

       Employees who do not receive an employment offer from SMART Papers will be
       paid 60 hours pay at the rate of their current permanent classification (not red circle
       rates) on the date of sale for each full and pro-rata year of continuous service with
       International Paper. Payments will be made as a lump sum within 30 days following
       date of sale and this payment will be subject to all applicable taxes.

       Employees who do receive an employment offer from SMART Papers will not be
       entitled to severance pay unless they are terminated from SMART Papers, through
       no fault of their own, within eighteen (18), months of the sale date.

       To be eligible for severance pay, an employee must be actively at work on the date
       of sale. Employees on disability or other approved leaves must be released to return
       to work in their former classifications.

       The Union agrees that Severance Program 817, or any other Severance Program, does
       not apply, and that this severance agreement is the only severance agreement
       applicable to the employees of the Hamilton B Street Facility.

       The ratification provision in the EBP was added in compliance with the international union’s



                                                -3-
constitution and the local union’s bylaws. The local union’s bylaws provide:

        With the assistance of an authorized Representative of the International Union, the
        Bargaining Committee shall conclude agreements with Management subject to
        retification [sic] by the membership fo [sic] the Local Union.

Likewise, the international union’s constitution provides:

        A collective bargaining agreement must be ratified and approved by a majority of the
        members covered by said agreement present and voting on the question by secret
        ballot before the same shall be executed on behalf of the Union[.]

Despite the requirement in the international union’s constitution and the local union’s bylaws that

members ratify labor agreements negotiated by the Union, the EBP was never ratified by the

membership. Rather, the international union’s bargaining representative and the local union’s

president signed the EBP and it went into effect.

        The plaintiffs in this case are one hundred fifteen IP employees who were terminated when

IP sold the B Street Mill to Smart Papers. Pursuant to the EBP, the plaintiffs did not receive

severance pay from IP because they were hired by Smart Papers. The plaintiffs, originally

numbering seventy-five, plus twelve “John Does,” filed a complaint against the local union, the

international union, IP, and Smart Papers. The complaint asserted thirteen causes of action, of which

five are at issue on appeal. The district court described the five relevant causes of action as follows:

        Count I asserts a claim against PACE International and PACE Local 1967 pursuant
        to 28 U.S.C. § 1337 and Section 301 of the Labor Management Relations Act
        (“LMRA”), 29 U.S.C. § 185. This count alleges that the Unions breached the local
        by-laws and the constitution of the International Union by ratifying the EBP without
        submitting the issue to the rank-and-file for ratification. This count also appears to
        allege that the Unions breached their duty of fair representation by not submitting the
        EBP to the membership for a vote.

        Count II asserts a claim against International Paper, PACE International, and PACE
        Local 1967 pursuant to Section 301 of the LMRA. Count II alleges that these parties
        breached the CBA and the Extension Agreement by entering into the EBP, which had


                                                  -4-
       the effect of denying Plaintiffs severance pay. Alternatively, Plaintiffs allege that
       these Defendants violated the LMRA by entering into the Mill Reconfiguration
       Agreement without a membership vote. Even if there was a membership vote on the
       Mill Reconfiguration Agreement. Plaintiffs allege these parties breached the
       agreement by not paying severance upon their termination.

       Count III asserts a claim against International Paper under the LMRA for breach of
       contract and promissory estoppel. Count III alleges that by virtue of the EBP,
       International Paper represented to Plaintiffs that in order to be eligible to receive
       severance pay, they would have to apply for employment with Smart Paper[s] and be
       rejected. However, Plaintiffs allege, there were certain unidentified “covert”
       employees to whom International Paper paid severance even though those employees
       did not apply[,] nor were they rejected, for employment with Smart Paper[s]. In fact,
       Plaintiffs allege, International Paper advised these “covert” employees that they could
       get severance pay without applying for positions with Smart Paper[s]. Thus,
       Plaintiffs contend, had they known they could have gotten severance without
       applying for new jobs, they would have preferred to take severance pay over
       continued employment with Smart Paper[s]. Plaintiffs also claim that International
       Paper breached the EBP through its alleged preferential treatment of the “covert”
       employees.

       Count IV . . . asserts claims against PACE International and PACE Local 1967.
       Count IV alleges that the Unions violated 29 U.S.C. § 411(a)(1) by entering into the
       EBP without submitting it to the full membership for a vote.

       Count V asserts claims against International Paper, PACE International, and PACE
       Local 1967. Count V consists of hybrid breach of fair representation/breach of CBA
       claims under Section 301 of the LMRA. Specifically, Count V alleges that the
       Unions breached their fiduciary duty to Plaintiffs by failing to submit the EBP to the
       membership for ratification and by failing to secure the severance pay which they
       claim is provided by the CBA and the Extension Agreement. This count also alleges
       that the Unions breached their duty of fair representation by failing to act on a
       grievance over severance pay filed by Larry McCreary, who, it should be noted, is not
       a plaintiff in this case. This count alleges that International Paper breached the CBA
       and the Extension Agreement by failing to give Plaintiffs severance pay. Finally, this
       count alleges that International Paper breached the EBP by failing to treat all
       employees equally thereunder.

The second amended complaint asserted the same claims on behalf of one hundred fifteen named

plaintiffs and twelve “John Does.”

       The district court dismissed Counts II, III, IV, and V for failure to state a claim upon which


                                                -5-
relief could be granted. Count I was dismissed on statute of limitations grounds as to the plaintiffs

whose claims were not asserted until the second amended complaint. After discovery, the district

court granted summary judgment to the defendants on Count I as to the remaining plaintiffs.

                                                  II.

       The plaintiffs raise three issues on appeal: (A) whether the district court properly dismissed

Counts II, III, IV, and V of plaintiffs’ complaint, (B) whether the district court properly granted

summary judgment to the Union on Count I of plaintiffs’ complaint, and (C) whether the district

court properly dismissed the Count I claims brought on behalf of plaintiffs who were added in the

second amended complaint. We affirm the district court’s decision on the first two issues, and this

conclusion obviates the need to consider the third.

                                                  A.

       Because Counts II, III, IV, and V of plaintiffs’ complaint were dismissed pursuant to Fed. R.

Civ. P. 12(b)(6), we review the district court’s decision de novo. Memphis, Tenn. Area Local, Am.

Postal Workers Union, AFL-CIO v. City of Memphis, 361 F.3d 898, 902 (6th Cir. 2004). We

construe the complaint in the light most favorable to the plaintiffs’ case and accept as true all well-

pleaded factual allegations. Cooper v. Parrish, 203 F.3d 937, 944 (6th Cir. 2000). The complaint

“need only put a party on notice of the claim being asserted against it” to state a claim on which

relief can be granted. Memphis, 361 F.3d at 902. “Dismissal is not appropriate unless it appears

beyond doubt that plaintiffs can prove no set of facts in support of their claims that entitle them to

relief.” Cooper, 203 F.3d at 944.

                                                  1.

       In Count II, the plaintiffs bring their breach of contract claim pursuant to § 301 of the LMRA.


                                                 -6-
Section 301 confers jurisdiction to the federal district courts over suits alleging breaches of labor

agreements:

        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.

29 U.S.C. § 185(a). Section 301 jurisdiction does not extend to suits challenging the validity of a

CBA. Heussner v. Nat’l Gypsum Co., 887 F.2d 672, 676 (6th Cir. 1989). Therefore, the federal

district courts lack jurisdiction over any suit where the claimed § 301 breach was caused by the

enactment of a subsequent labor agreement. Adcox v. Teledyne, Inc., 21 F.3d 1381, 1388 (6th Cir.

1994). This is because an allegation of such a breach is implicitly a challenge to the validity of the

subsequent labor agreement.

        Here, plaintiffs claim that the EBP is invalid because it was not properly executed. As this

explicitly challenges the validity of a labor agreement, the district court lacked jurisdiction over this

claim under § 301. Furthermore, plaintiffs claim that IP and the Union breached the previous labor

agreements, which they allege guaranteed severance pay to all employees, in two ways: (1) by

executing the EBP, which only provides severance pay to certain employees; and (2) by following

the terms of the EBP and failing to pay severance to all employees. Because the EBP, by its terms,

superceded all previous severance pay agreements, each of these claims implicitly challenges the

validity of the EBP. Therefore, the district court lacked jurisdiction under § 301 and properly

dismissed Count II.

                                                   2.

        Count III alleges a promissory estoppel claim under § 301 of the LMRA based on plaintiffs’


                                                  -7-
assertion that IP breached the terms of the EBP by not paying severance according to the EBP’s

terms. Section 301 authorizes contract claims premised on the doctrine of promissory estoppel. See

Apponi v. Sunshine Biscuits, Inc., 809 F.2d 1210, 1217 (6th Cir. 1987). However, an allegation of

differential treatment of employees constitutes a claim of unfair labor practices. See J.I. Case Co.

v. NLRB, 321 U.S. 332, 338-39 (1944); 29 U.S.C. § 158(a)(5) (requiring employers to bargain

collectively, which implies uniform treatment of employees during collective bargaining). Because

the NLRB has exclusive jurisdiction over all claims of unfair labor practices, a district court must

dismiss these claims. Martin v. Lake County Sewer Co., 269 F.3d 673, 680 (6th Cir. 2001).

       Here, plaintiffs allege that IP paid severance to some employees who had not applied for

employment with Smart Papers and were not rejected by Smart Papers, which are prerequisites to

severance pay under the EBP.         The plaintiffs claim they detrimentally relied upon IP’s

misrepresentation that an employee would receive severance pay only if the employee was denied

ongoing employment with Smart Papers.1 Plaintiffs’ claim is based upon IP’s alleged differential

treatment of employees under the EBP: some employees were required to meet the prerequisites to

receive severance pay whereas other employees were not. Therefore, the district court properly

dismissed Count III.

                                                  3.

        Count IV alleges that the Union’s failure to submit the EBP to the union membership for

ratification denied plaintiffs the equal voting rights provided by § 411(a)(1) of the LMRDA. Section



       1
         The court need not consider plaintiffs’ additional allegation that IP breached the EBP by not
paying severance to employees who accepted employment with Smart Papers but were terminated
through no fault of their own because plaintiffs’ counsel conceded at oral argument that none of the
plaintiffs suffered this injury.

                                                 -8-
411(a)(1) provides:

        Every member of a labor organization shall have equal rights and privileges within
        such organization to nominate candidates, to vote in elections or referendums of the
        labor organization, to attend membership meetings, and to participate in the
        deliberations and voting upon the business of such meetings, subject to reasonable
        rules and regulations in such organization’s constitution and bylaws.

29 U.S.C. § 411(a)(1). The purpose of § 411(a)(1) is to ensure “that members and classes of

members shall not be discriminated against in their right to nominate and vote.” Nienaber v. Ohio

Valley Carpenters Dist. Council, 652 F.2d 1284, 1286 (6th Cir. 1981) (quoting Calhoon v. Harvey,

379 U.S. 134, 139 (1964)). The statute was not “not designed to grant federal courts ‘jurisdiction

to enforce union constitutions and by-laws across the board.’” Id. (quoting Bunz v. Moving Picture

Mach. Operators’ Protective Union, 567 F.2d 1117, 1121 n.17 (D.C. Cir.1977)). Thus, a violation

of a union’s constitution or by-laws constitutes a violation of § 411(a)(1) if the violation “‘results

in discriminatory deprivation of an individual’s right to cast a meaningful vote.’” See id. (quoting

Blanchard v. Johnson, 532 F.2d 1074 (6th Cir. 1976)).

        The crux of the alleged § 411(a)(1) violation is that the unions did not follow the ratification

procedures required by their respective constitution and bylaws. Here, plaintiffs allege that all

members employed by IP and represented by the Union were denied the right to vote on the EBP.

Because the alleged violation of the Union’s constitution and by-laws resulted in the universal denial

of a ratification vote, rather than the denial of a vote to some but not others, plaintiffs fail to allege

the discrimination required by § 411(a)(1),2 and the district court properly dismissed Count IV.


        2
        Plaintiffs’ attempt to circumvent this requirement by arguing that the Union’s president was
given a vote on the EBP, whereas the rank-and-file members were not, cannot succeed. The
president’s role in negotiating the EBP does not constitute a vote within the Union’s constitution and
by-laws because those documents envision a ratification vote as an act distinct from the negotiation
of the labor agreement. Accepting plaintiffs’ argument would effectively eliminate the

                                                   -9-
                                                  4.

       Count V asserts a hybrid § 301 claim against IP and the Union. Hybrid § 301 actions involve

both a claim against the plaintiff’s employer under § 301 of the LMRA, alleging breach of a labor

agreement, and a claim against the union for breach of the duty of fair representation that is implied

under the NLRA. DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 164-65 (1983). The two

claims are “inextricably interdependent.” Id. at 164. “[T]o recover against either the Company or

the Union, [the plaintiff] must show that the Company breached the Agreement and that the Union

breached its duty of fair representation. Unless [the plaintiff] demonstrates both violations, he

cannot succeed against either party.” Bagsby v. Lewis Bros., Inc., of Tenn., 820 F.2d 799, 801 (6th

Cir. 1987) (internal citation omitted).

       Here, plaintiffs claim that IP: (1) breached the CBA and the extension agreement by not

paying all employees severance and (2) breached the EBP by treating employees differently under

it, i.e., paying severance to some employees who did not apply for jobs at Smart Papers and thus did

not meet the EBP’s prerequisites for severance pay. As already discussed above, neither of these

alleged breaches are cognizable under § 301. Because the plaintiffs cannot succeed against IP, their

hybrid § 301 claim against IP and the Union must fail, and the district court properly dismissed

Count V.

                                                 B.

       Because the district court granted summary judgment to the Union on Count I, we review the

district court’s decision de novo, reapplying the standard used by the district court. Williams v.



discrimination requirement because any action by a union that is not submitted to a vote of the
membership is presumably undertaken by some member of the union’s leadership.

                                                -10-
Mehra, 186 F.3d 685, 689 (6th Cir. 1999) (en banc). Summary judgment is appropriate “if the

pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits,

if any, show that there is no genuine issue of material fact and that the moving party is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(c). All “inferences to be drawn from the

underlying facts . . . must be viewed in the light most favorable to the party opposing the motion.”

United States v. Diebold, 369 U.S. 654, 655 (1962). Summary judgment must be entered against the

opposing party, however, if it “fails to make a showing sufficient to establish the existence of an

element essential to that party’s case, and on which [it] will bear the burden of proof at trial.”

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If “a reasonable jury could return a verdict for

the nonmoving party,” summary judgment should be denied. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986).

       Count I claims that the Union breached the CBA in violation of § 301 of the LMRA and

breached its duty of fair representation in violation of § 9(a) of the NLRA when it failed to submit

the EBP for ratification by the union members as required by the Union’s constitution and by-laws.

Union members may bring suit under § 301 against a union for breach of a union constitution.

Tisdale v. United Ass’n of Journeymen & Apprentices of Plumbing & Pipefitting Indus. of U.S. &

Can., Local 704, 25 F.3d 1308, 1310 (6th Cir. 1994). A plaintiff can bring a claim against a union

for a breach of its duty of fair representation arising from §9(a) of the NLRA by invoking the district

court’s jurisdiction under 28 U.S.C. § 1337. Storey v. Local 327, Int’l Bhd. of Teamsters, Chauffers,

Warehousemen & Helpers, 759 F.2d 517, 518-19 (6th Cir. 1985). However, summary judgment was

appropriate in this case because plaintiffs have failed to demonstrate that the Union’s failure to

submit the EBP to a vote entitles them to the damages that they claim: (1) denied severance pay, (2)


                                                 -11-
the denied damages provided by the WARN Act, and (3) emotional distress.

        The plaintiffs cannot recover damages for denied severance pay because none of the labor

agreements in force prior to the EBP—the CBA, the extension agreement, or the reconfiguration

agreement—guaranteed the plaintiffs any severance pay. Despite plaintiffs’ arguments to the

contrary, the reconfiguration agreement, which did provide severance pay to employees terminated

during a two-year plant reconfiguration, cannot reasonably be read to provide any severance pay

related to the sale of the B Street Mill. Plaintiffs did not lose severance pay because the unions did

not submit the EBP to a vote; even if the rank-and-file union members had voted against the EBP,

the plaintiffs would not have received severance pay under the prior labor agreements. Moreover,

as the district court noted, it is too speculative to assume that disapproval of the EBP would have

resulted in further negotiations that ultimately would have resulted in severance pay for the plaintiffs.

        The plaintiffs cannot recover damages for denied damages provided by the WARN Act

because this was not caused by the Union’s failure to submit the EBP to a vote. Plaintiffs argue that

the IP violated the WARN Act because it failed to provide sixty days notice of the closing and sale

of the B Street Mill, see 29 U.S.C. § 2102, entitling them to damages, see 29 U.S.C. § 2104. They

claim that the EBP denied them these damages because when they interviewed for and received jobs

with Smart Papers, they became ineligible for WARN damages. However, plaintiffs could have

chosen not to interview with Smart Papers, ensuring receipt of WARN damages. While this choice

would have precluded plaintiffs from receiving severance pay under the EBP, the plaintiffs would

have been in no different a position than if EBP had failed a ratification vote; as discussed above,

plaintiffs would not have received severance pay under the prior labor agreements. Therefore, the

Union’s failure to submit the EBP to a ratification vote did not cause the loss of any damages


                                                  -12-
provided by the WARN Act.

        Finally, plaintiffs were not entitled to damages for emotional distress for the Union’s failure

to submit the EBP to a ratification vote. Plaintiffs have failed to demonstrate any consequences

resulting from the Union’s actions, so any emotional distress suffered by the plaintiffs must only be

from their general concern that the Union follow its constitution. The Union’s conduct in this case

is not sufficiently exceptional or extreme to merit damages for emotional distress. See Cantrell v.

Int’l Bhd. of Elec. Workers, Local 2021, 32 F.3d 465, 468 (10th Cir. 1994) (collecting cases

illustrating the standard).

        As the plaintiffs failed to demonstrate any damages from the Union’s failure to submit the

EBP to a ratification vote, the district court properly granted summary judgment.

                                                  C.

        Because the district court properly granted summary judgment for the Union on Count I, this

court does not need to consider whether the district court properly dismissed the Count I claims

brought on behalf of plaintiffs who were added in the second amended complaint.

                                                 III.

        For the foregoing reasons, we affirm the district court.




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