                     UNITED STATES COURT OF APPEALS

                          FOR THE FIFTH CIRCUIT


                           __________________

                               No. 92-1628
                           __________________



     RICHARD BAKER,

                                             Plaintiff-Appellant,
                                             Cross-Appellee,

                                    versus

     FARMERS ELECTRIC COOPERATIVE, INC.
     and LAWSON WHITE,

                                             Defendants-Appellees,
                                             Cross-Appellants.

         ______________________________________________

      Appeal from the United States District Court for the
                   Northern District of Texas
         ______________________________________________

                          (September 23, 1994)

Before REAVLEY and GARWOOD, Circuit Judges, and LAKE*, District
Judge.

GARWOOD, Circuit Judge:

     Plaintiff-appellant Richard Baker (Baker) brought a state

court action in Hunt County, Texas, against his employer, Farmers

Electric Cooperative, Inc. (Farmers), and Lawson White (White),

individually   and   as   manager    of   Farmers,   alleging   intentional

infliction of emotional distress arising from a job reassignment.

Defendants removed the suit to the United States District Court for



*
     District Judge of the Southern District of Texas, sitting by
designation.
the Northern District of Texas on the ground that federal labor law

preempted the state law claim because resolution of the action

required the interpretation of a collective bargaining agreement

(CBA).   The district court denied Baker's motion to remand and

dismissed the action without prejudice for Baker's failure to

exhaust contractual grievance procedures.               Baker appeals from this

order; defendants cross-appeal, asserting that the dismissal should

have been with prejudice.

                        Facts and Proceedings Below

     Baker   is    an   employee     of       Farmers   and    a    member   of   the

International Brotherhood of Electrical Workers, Local Union No. 59

(the Union).      When the events underlying this lawsuit occurred,

Baker was a member of the Union and he was a Farmers' employee

covered by a CBA between Farmers and the Union; at Farmers, he was

a journeyman lineman and had held that position for fourteen years.

In early 1992, White, the general manager of Farmers, assigned to

Baker the duties of a custodian/yardman.1                 Baker's duties as a

custodian/yardman include sweeping the warehouse and driveway,

mowing the yard, and cleaning the bathrooms and breakrooms.                        He

contends that these duties are demeaning and cause him physical and

emotional distress.

     Baker   alleges     in    his   state      court   petition      that   he   was

reclassified   to    the      maintenance      position   in       retaliation    for


1
     A collective bargaining agreement, which was negotiated
between Farmers and the Union for 1992 and 1993 and became
effective in May 1992, shortly after the state lawsuit was filed,
expressly reclassified Baker as a custodian/yardman at a salary
of $7.64 per hour. As a journeyman lineman, he had earned $16.35
per hour.

                                          2
participating in an arbitration against Farmers; that arbitration

is unrelated to this matter.      Following the completion of the

arbitration, defendants informed him that he could no longer drive

a company truck.     According to Baker, driving a truck was not a

condition of employment as a journeyman lineman.2   He claims that

the defendants are intentionally trying to force him to resign by

making his work environment unpleasant.   Baker has filed an unfair

labor practice charge against Farmers with the National Labor

Relations Board.

     Defendants claim that Farmers acted within its legal rights in

reassigning Baker, under the terms of the CBA which was in effect

from 1990 to 1992.

     On May 8, 1992, Baker filed this action in state court in Hunt

County, Texas, against Farmers and White, individually and as

manager of Farmers, claiming damages for intentional infliction of

emotional distress.    Defendants timely removed the action to the

United States District Court for the Northern District of Texas.

As grounds for removal, defendants claimed that resolution of



2
     Defendants explain that in early 1992, Farmers' insurance
carrier notified them that Baker was uninsurable due to his poor
driving record. The 1990-1992 CBA assigned Baker, as a
journeyman lineman, various "on call" duties, such as responding
to electrical service disruptions, downed power lines, and other
emergencies; employees who were "on call" were permitted to use
Farmers' trucks. Farmers would not allow Baker to drive its
trucks after he became uninsured and asserts that therefore Baker
was no longer qualified to perform all of the duties of a
journeyman lineman.
     The 1992-1993 CBA added a provision allowing the termination
of employees who failed to meet the requirements of Farmers'
fleet insurance policy. Because Baker was "grandfathered" out of
the termination provision, he was permanently reassigned to a
lower paying job rather than being terminated.

                                 3
Baker's state tort claim required interpretation of the CBA and

thus the   case   involved   a   federal   question    arising   under   the

National Labor Relations Act (NLRA), 29 U.S.C. § 141, et seq., and

the Labor Management Relations Act (LMRA), 29 U.S.C. § 185, et seq.

     On June 11, 1992, Baker moved to remand the action to state

court. Defendants responded. On June 30, 1992, the district court

entered an order denying the motion to remand and dismissing the

action without prejudice.       The court determined that resolution of

the dispute depended on Baker's ability to establish either that

his reassignment violated the terms of the CBA which governed

matters of his employment at Farmers or that the CBA was invalid.

The court concluded that the NLRA and the LMRA preempted Baker's

state tort claim and denied his motion to remand.

     Upon finding that Baker had failed to exhaust the remedies set

forth in Article 29 of the CBA which required resolution of

disputes arising from the CBA through grievance or arbitration

proceedings,   the   district    court   dismissed    the   action   without

prejudice to allow Baker to comply with this requirement.

                                 Discussion

I.   Denial of Motion to Remand

     A.    Claims against Farmers

     Preemption is a question of law reviewed de novo.           Galvez v.

Kuhn, 933 F.2d 773, 776 (9th Cir. 1991).

     Where removal jurisdiction is predicated on the existence of

a federal question, the federal question generally must appear on

the face of the plaintiff's complaint.               Caterpillar, Inc. v.

Williams, 107 S.Ct. 2425, 2429 (1987).        The removing defendant's

                                     4
interjection of a federal defense is normally insufficient to

remove the case.       Id. at 2430.    One exception to this rule,

however, occurs where an area of state law has been completely

preempted by federal law.    Id.   Controversies involving collective

bargaining agreements, where section 301 of the LMRA, 29 U.S.C. §

185(a), provides the grounds for preemption, constitute such an

area of preemption.3   Id. at 2430-31; Lingle v. Norge Div. of Magic

Chef, Inc., 108 S.Ct. 1877 (1988).

     Defendants removed this action to federal court on the grounds

that resolution of Baker's intentional infliction of emotional

distress claim required interpretation of the CBA.        This claim

implicates preemption under section 301 of the LMRA, which vests

jurisdiction in the federal courts to hear claims for violation of

labor contracts.4


3
     It has been said that if issues involving section 301 arise
only as a defense, there is no preemption. "[A] defendant's
reliance on a CBA term purely as a defense to a state law claim
does not result in section 301 preemption." Fox v. Parker
Hannifin Corp., 914 F.2d 795, 800 (6th Cir. 1990). Here,
defendants assert that, in order to meet his burden of proof on
the state intentional infliction of emotional distress claim,
Baker must rely on the CBA to establish that their actions in
reassigning him to the maintenance position were extreme and
outrageous; thus their dependence on the CBA for removal purposes
is not purely defensive.
4
     Other grounds for preemption by federal labor laws exist.
In Farmer v. United Brotherhood of Carpenters and Joiners, 97
S.Ct. 1056 (1977), the Supreme Court discussed the general rule
governing preemption in the labor law area. This rule removes
from state regulation activities which are protected by section 7
of the NLRA, or which constitute an unfair labor practice under
section 8. Farmer, 97 S.Ct. at 1061 (quoting San Diego Bldg.
Trades Council v. Garmon, 79 S.Ct. 773, 779 (1959)). One
exception to this rule, where preemption does not apply, occurs
where the activity at issue is peripheral to the labor concerns.
Id.
     Baker argues that this case is governed by Farmer, which

                                   5
     "Section 301 not only gives federal courts jurisdiction
     to hear employment cases covered by collective bargaining
     agreements, but also directs them to fashion a body of
     federal common law to resolve such disputes, and preempts
     any state law claims which require the interpretation of
     a collective bargaining agreement." Jackson v. Kimel,
     992 F.2d 1318, 1325 (4th Cir. 1993) (internal citations
     omitted).

The purpose behind section 301 preemption is to ensure that issues

raised in actions covered by section 301 are decided in accordance

with the precepts of federal labor policy. Allis-Chalmers Corp. v.

Lueck, 105 S.Ct. 1904, 1910 (1985) (quoting Teamsters v. Lucas

Flour Co., 82 S.Ct. 571, 576 (1962)).

     In Lueck, the Supreme Court recognized that the coverage of

section 301 extends beyond contract claims for breach of a labor

agreement to include state tort claims which require analysis of a

labor contract:

     "If the policies that animate § 301 are to be given their
     proper range, however, the pre-emptive effect of § 301


concerned a state law claim for intentional infliction of
emotional distress based on allegations of discrimination in
employment referrals, personal abuse, and harassment. The Court
declined to preempt the state claim on the grounds that the tort
issue could be adjudicated without resolution of an underlying
labor dispute, and because the potential interference with
federal concerns was insufficient to counterbalance the
legitimate and substantial state interest in protecting its
citizens. 97 S.Ct. at 1065.
     Although Farmer noted the existence of section 301
preemption, it did not address that preemption in the context of
the facts before it. Id. at 1062 n.8. We have interpreted
Farmer's stance on preemption of emotional distress claims
narrowly. Brown v. Southwestern Bell Tel. Co., 901 F.2d 1250,
1256 (5th Cir. 1990) ("Farmer does not hold that claims for
intentional infliction of emotional distress are never preempted
by the federal labor laws, but rather that such claims may escape
preemption when they relate only peripherally to federal
concerns."). Even assuming that Garmon preemption as discussed
in Farmer applies to section 301 cases, the case before us
differs substantially from Farmer in that Baker's state tort
claim cannot be adjudicated without reliance on the CBA.

                                6
     must extend beyond suits alleging contract violations.
     These policies require that `the relationships created by
     [a collective-bargaining] agreement' be defined by
     application of `an evolving federal common law grounded
     in national labor policy.' . . .         Thus, questions
     relating to what the parties to a labor agreement agreed,
     and what legal consequences were intended to flow from
     breaches of that agreement, must be resolved by reference
     to uniform federal law, whether such questions arise in
     the context of a suit for breach of contract or in a suit
     alleging liability in tort." Lueck, 105 S.Ct. at 1911
     (internal citations omitted).

A state tort claim is preempted by section 301 if "evaluation of

the tort claim is inextricably intertwined with consideration of

the terms of the labor contract."    Id, at 1912.

     The Court revisited the issue of preemption of state claims in

Lingle v. Norge Div. of Magic Chef, Inc., 108 S.Ct. 1877, 1885

(1988), holding that application of state law is preempted by

section 301 only if such application requires the interpretation of

a CBA.   "[I]f the resolution of a state-law claim depends upon the

meaning of a collective-bargaining agreement, the application of

state law . . . is pre-empted and federal labor-law principles . .

. must be employed to resolve the dispute."    Id. at 1881.

     The Lingle Court found that preemption was not required on the

facts before it. The plaintiff's allegations concerned retaliatory

discharge, a claim requiring proof that (1) the plaintiff was

discharged or threatened with discharge and (2) the employer's

motive in discharging or threatening to discharge him was to deter

him from exercising his rights under the Act or to interfere with

his exercise of those rights.   The Court decided that neither the

elements of the plaintiff's case nor the defense of proving a

nonretaliatory motive for discharge required the interpretation of


                                 7
any term of a CBA, although some of the factual inquiries under the

state claim might be similar to those under section 301:

      "[E]ven if dispute resolution pursuant to a collective-
      bargaining agreement, on the one hand, and state law, on
      the other, would require addressing precisely the same
      set of facts, as long as the state-law claim can be
      resolved without interpreting the agreement itself, the
      claim is `independent' of the agreement for § 301 pre-
      emption purposes." Lingle, 108 S.Ct. at 1883.

      Thus the critical inquiry concerns the necessity of looking to

the terms of a CBA to resolve the state law claim.               "Section 301

governs claims founded directly on rights created by collective-

bargaining agreements, and also claims `substantially dependent on

analysis of a collective-bargaining agreement.'" Caterpillar, Inc.

v.   Williams,      107   S.Ct.   at   2431   (quoting   Electrical   Works   v.

Hechler, 107 S.Ct. 2161, 2166-2167, n.3 (1987)).

      Baker claims that his claims for intentional infliction of

emotional distress are purely state law claims which are not

preempted by federal labor law.           He asserts that, as the CBA does

not expressly address intentional torts, resolution of his claims

does not require interpretation of the CBA.

      For Baker to sustain his claim of intentional infliction of

emotional distress under Texas law, he must prove that:                (1) the

defendants acted intentionally or recklessly; (2) the defendants'

conduct was extreme and outrageous; (3) the defendants' actions

caused Baker emotional distress; and (4) Baker's emotional distress

was severe.       Tidelands Auto. Club v. Walters, 699 S.W.2d 939, 942

(Tex. App.SQBeaumont 1985, writ ref'd n.r.e.) (citing RESTATEMENT

(SECOND)   OF   TORTS § 46 (1965)).

      Baker does not allege that any action on the part of the

                                         8
defendants other than his reassignment to a maintenance position

has caused him mental distress.             He alleges no instances of

harassment, discrimination, physical abuse, or other conduct which

would provide grounds for an emotional distress claim.

     Baker must prove, as an element of his claim of intentional

infliction of emotional distress, that the defendants' actions in

reassigning him were extreme and outrageous.         The terms of the CBA

are relevant to this issue, because the CBA expressly grants

management rights over the business of Farmers and its employees

which could be interpreted to include the right to reassign an

employee's duties.5      Article Five of the CBA provides:

     "A. It is expressly agreed and understood that, except
     as otherwise provided in this Agreement and by law, the
     Cooperative [Farmers] retains the sole right to manage
     the affairs of the business and to direct the working
     forces thereof and shall have the exclusive right of
     selection, direction and determination of size of the
     work force . . . .          The enumeration herein of
     management's rights shall not be deemed to exclude other
     functions not specifically set forth. The Cooperative,
     therefore, retains all rights, powers, prerogatives, and
     authorities   not   otherwise    specifically   abridged,
     delegated or modified by this Agreement. The Cooperative
     reserves the sole right to judge the skill and/or ability
     of any employee."

     Because construction and understanding of the terms of the

CBA, particularly those governing Farmers' rights to reassign its

employees,   are   unavoidably      and   inextricably   intertwined    with

resolution   of    the   question     whether   defendants'   conduct    in

reassigning Baker was extreme and outrageous, a necessary element


5
     Indeed, counsel for Baker conceded at oral argument of this
matter that we must look to the CBA for resolution of the
"extreme and outrageous" element of the state tort claim. He
argued, however, that while relevant, the CBA was not
determinative and thus the tort claim was not preempted.

                                      9
of Baker's state law claim, the district court properly held that

his state tort claim was preempted by section 301.

     The propriety of the district court's action is revealed by

examination of other cases involving a claim for intentional

infliction of emotional distress, where the question of preemption

turns on whether the conduct upon which the claim is grounded is

governed by the CBA.         If the agreement would not condone the

activity, there is no preemption.            If the conduct arises out of

activities covered in the agreement, however, courts generally hold

that the emotional distress claim is preempted.

     In Brown v. Southwestern Bell Tel. Co., 901 F.2d 1250 (5th

Cir. 1990), we upheld a finding of preemption and affirmed summary

judgment for Southwestern Bell (Bell) where the emotional distress

claim turned on the circumstances under which Bell could or could

not discharge an employee.       The plaintiff, Brown, sued Bell, his

employer, in state court for denial of disability benefits and

subsequent    discharge.      Brown   alleged,      inter   alia,   that   Bell

intentionally caused him emotional distress when it forced him to

choose between losing his job and returning to work, despite his

claimed inability to work for medical reasons.

     Bell removed the action on basis of jurisdiction under ERISA

and the LMRA and moved for summary judgment.             The district court

denied Brown's motion to remand and entered summary judgment for

Bell, concluding that the intentional infliction of emotional

distress claim arose out of the denial of disability benefits and

was therefore preempted by ERISA.

     This    Court,   in   addressing      the   intentional   infliction    of

                                      10
emotional    distress   claim,   did    not    reach   the    issue   of   ERISA

preemption because it concluded that the claim directly implicated

the concerns addressed by the LMRA.           Brown, 901 F.2d at 1255.       The

Court reasoned that because Brown was essentially claiming that

Bell could not fire him while he was absent from work for medical

reasons, resolution of his claim would require interpretation of

the CBA and was thus preempted by section 301 of the LMRA.                 Id. at

1255-1256.

     Although the facts underlying Baker's claims differ slightly

from those in Brown, at issue in each case is the authority of the

employer, as set forth in a CBA, to take certain actions affecting

the plaintiff's job.     Because the terms of the CBA are relevant to

the resolution of the state tort claim, section 301 preempts those

state tort claims.

     Similarly, in Strachan v. Union Oil Co., 768 F.2d 703 (5th

Cir. 1985), we affirmed the preemption of state tort claims arising

from the suspension and drug testing of two employees who were

later   restored   to   full   employment      following     negative   testing

results.    We found preemption proper because the employer had the

power under the CBA to require medical examinations when there was

concern regarding the physical condition of its employees.                 Id. at

705. See also Bagby v. General Motors Corp., 976 F.2d 919, 921-922

(5th Cir. 1992) (claim for intentional infliction of emotional

distress allegedly caused by suspension and escort from factory

were preempted because acts which were claimed to be tortious were

"unquestionably taken in accordance with provisions of the CBA").

     The Ninth Circuit has addressed preemption by section 301 of

                                       11
claims of intentional infliction of emotional distress in a number

of cases.      In each of these cases, where the allegedly tortious

conduct could not have been sanctioned by the CBA, for example in

cases concerning assault and battery or sexual harassment, no

preemption occurs.            Where the conduct may reasonably be deemed

covered   by    the    CBA,    however,    as     in    assignment      of    duties   or

representation by a Union, section 301 does preempt state tort

claims.

     The case of Perugini v. Safeway Stores, Inc., 935 F.2d 1083

(9th Cir. 1991), provides a good example of the distinction between

conduct inside and conduct outside the scope of a CBA.                                 In

Perugini,      the    court    affirmed    the     trial       court's       finding   of

preemption of emotional distress claims based on an employer's

refusal to honor a pregnant employee's request for light duty and

a union's failure to represent the employee, reasoning that the

claims required interpretation of the CBA.                    In contrast, the court

reversed the trial court's finding of preemption of the employee's

emotional      distress        claims     which        were     based    on     alleged

discrimination and harassment of the employee by her employer and

union, on the ground that these claims did not implicate the CBA.

     Other circuits have recognized this same dichotomy.                         Fox v.

Parker Hannifin Corp., 914 F.2d 795 (6th Cir. 1990), concerned a

wrongful discharge action.              The plaintiff alleged harassment at

work and also outside the workplace.               She claimed to have suffered

emotional distress, not as a result of her termination, but rather

as a result of the harassment from her co-workers.                            The Sixth

Circuit distinguished between conduct based on the CBA and conduct

                                          12
outside the scope of the agreement.

     "Although state law claims for intentional infliction of
     emotional distress strictly based upon a defendant's
     exercise of CBA rights do not escape the preemptive force
     of section 301, such claims premised upon abusive
     behavior above and beyond the routine exercise of CBA
     rights are not preempted."       Id., 914 F.2d at 802
     (internal citations omitted).

The court held that the emotional distress claim was not preempted

because   the   allegations   arose   from   abuse   endured   while   the

plaintiff was employed, and from conduct which was not authorized

or even contemplated by the CBA, rather than from her termination.6

     That the defendants' action may have been taken in retaliation

for Baker's participation in the prior arbitration does not defeat


6
     See also Jackson v. Kimel, 992 F.2d at 1325-1327
(intentional infliction of emotional distress claim arising from
sexual harassment by co-worker not preempted because CBA could
not lawfully authorize alleged behavior); McCormick v. AT & T
Technologies, Inc., 934 F.2d 531, 537 (4th Cir. 1991), cert.
denied, 112 S.Ct. 912 (1992) (intentional infliction of emotional
distress claim stemming from employer's disposal of contents of
his locker preempted because resolution of claim would be
substantially dependent on analysis of CBA); Knafel v. Pepsi Cola
Bottlers, Inc., 850 F.2d 1155, 1162 (6th Cir. 1988) (affirming
summary judgment for employer on claim that conditions of
employment were calculated to intentionally cause employee
emotional distress because claim required analysis of CBA;
plaintiff claimed actions taken by employer were in retaliation
for participation in prior civil rights action); Douglas v.
American Information Technologies Corp., 877 F.2d 565, 571-573
(7th Cir. 1989) (intentional infliction of emotional distress
claim stemming from work assignments and denials of excused work
preempted because claim required determination of whether
employer's conduct was authorized by CBA); Galvez v. Kuhn, 933
F.2d 773 (9th Cir. 1991) (claims for intentional infliction of
emotional distress based on assault and battery and racial slurs
were not preempted by section 301); Tellez v. Pacific Gas & Elec.
Co., 817 F.2d 536 (9th Cir.), cert. denied, 108 S.Ct. 251 (1987)
(claims for intentional infliction of emotional distress based on
circulating to other employees letters concerning suspension of
employee for allegedly purchasing drugs on the job were not
preempted where CBA was silent on work conditions and vague on
disciplinary formalities and did not regulate suspension
letters).

                                  13
section 301 preemption.         Cases in which intentional infliction of

emotional distress claims are found to be preempted imply that the

intent   with     which   the    alleged    tort   is    performed     is    not    a

determinative factor in preemption analysis.              See, e.g., Knafel v.

Pepsi Cola Bottlers, Inc., 850 F.2d 1155, 1160-1162 (6th Cir. 1988)

(finding preemption of emotional distress claim without discussing

alleged retaliatory motive).

       Indeed, the fact that Baker alleges retaliatory action as the

motivation for his reassignment supports a finding of section 301

preemption.      The purpose of preempting claims based on a violation

of a labor contract is to secure the development of a uniform body

of federal labor policy.           This purpose is furthered when state

torts alleged to have been committed in retaliation for exercising

rights granted under a CBA, such as arbitration, are heard by a

federal court applying federal labor law.               While such retaliation

as Baker alleges is not itself a wrong under state tort law, it may

constitute an unfair labor practice actionable under federal labor

law.     Thus,    even    the   question    of   the    intent   behind     Baker's

reassignment implicates questions of federal labor law and is

related to the CBA and Baker's rights under CBA.

       Because    Baker's   claim    requires      analysis      of   the   CBA    to

determine whether the defendants' actions in reassigning him to the

maintenance position were extreme and outrageous, a necessary

element of his state law claim, his claims against Farmers are

preempted by section 301.           The district court did not err in

denying his motion to remand.



                                       14
     B.   Claims against White

     Baker claims on appeal that the district court abused its

discretion in not remanding the claims asserted against White

individually and as manager of Farmers. Because these claims arise

out of the same facts and circumstances as those asserted against

Farmers, however, removal of Baker's claims against White was

appropriate     under   the   district   court's   exercise   of   pendent

jurisdiction.

     The recently enacted 28 U.S.C. § 1367, which in many respects

codifies the case law doctrine of pendent jurisdiction, provides

that the district courts

     "shall have supplemental jurisdiction over all other
     claims that are so related to claims in the action within
     [the original jurisdiction of the district court] that
     they form part of the same case or controversy under
     Article III of the United States Constitution."

This pendent jurisdiction may continue even after the federal

claims upon which jurisdiction is based have been dismissed or

rendered moot.     Hefner v. Alexander, 779 F.2d 277, 281 (5th Cir.

1985). Removal jurisdiction may properly be exercised over pendent

state claims in the context of federal labor law.         See Jackson v.

Southern California Gas Co., 881 F.2d 638, 641-642 (9th Cir. 1989)

(district court had jurisdiction on removal to address state claims

which could have been brought originally in the district court as

pendent to claim for breach of collective bargaining agreement

governed by section 301).

     Baker has not asserted any claim against White or Farmers

other than the emotional distress claim arising from his change in

job assignment.    The only conduct at issue is White's reassignment

                                    15
of Baker from journeyman lineman to custodian/yardman; Baker does

not claim that White harassed, assaulted, or discriminated against

him, nor does he argue that White's actions in reassigning him were

outside the scope of White's authority as manager of Farmers.

Baker's claims against White are essentially identical to his claim

against Farmers and form part of the same case or controversy.                       The

district court properly exercised its pendent jurisdiction in

removing the claims against White.

      In addition, we hold that removal of the claims asserted

against   White,     individually          and   as    manager   of   Farmers,       was

appropriate on the facts before us under the doctrine of section

301 preemption.

      Baker   sued    White    in     both       his   individual     and    official

capacities, but it is evident that Baker does not claim any

personal motivation on the part of White in reassigning him to the

maintenance position.       The motivation alleged, that of retaliation

for   participating    in     the    arbitration,        is   related   to    White's

employment with Farmers.             Likewise, the action claimed to be

tortious, the actual reassignment, also stems from White's position

as manager of Farmers.        In sum, White's reassignment of Baker, the

sole ground for Baker's tort claim, was a company action.

      If a plaintiff were allowed to bypass preemption of his state

claim against his employing company by asserting an identical claim

against the company's chief executive, section 301's policy of

developing    a   consistent        body    of   federal      labor   law    would   be




                                           16
eviscerated.7

       In cases involving claims against fellow employees where the

question of section 301 preemption has arisen, courts have governed

their   determinations      on   the   preemption     by    the    necessity    of

referring to a CBA for resolution of the claim rather than by the

individual status of the defendant.            In Brown v. Southwestern Bell

Tel. Co., we held that intentional infliction of emotional distress

claims asserted against two supervisors were preempted because the

claims were "'inextricably intertwined with the terms of . . . [a]

labor contract.'"     901 F.2d at 1256 (quoting Allis-Chalmers Corp.

v. Lueck, 105 S.Ct. at 1912).          The fact that two of the defendants

were individuals employed by Southwestern Bell was not a factor in

our decision.     See also Knafel v. Pepsi Cola Bottlers, Inc. 850

F.2d    at   1160-1162   (affirming          preemption    of    claims   against

defendants,     including   individual        employees,    on    basis   of   CBA,

without discussion of individual status); Perugini v. Safeway

Stores, Inc. 935 F.2d at 1088-1089 (preemption discussion revolving

around reference to CBA rather than status of defendants).                But see

Jackson v. Kimel, 992 F.2d at 1328-1329 (Phillips, J., concurring)

(suggesting that claim against supervisor should not be preempted



7
     By this we do not intend that all claims raised against a
fellow employee or supervisor should be preempted; for example,
claims arising out of conduct which is unrelated to the work
environment or which involve actions not within the scope of
employment or not in furtherance of the employer's business may
still escape the reaches of section 301 preemption whether
asserted against an employer or a fellow employee. See Jackson
v. Kimel, 992 F.2d at 1325-1327 (emotional distress claim, based
on alleged sexual harassment, asserted against fellow employee
not preempted by section 301 on ground that interpretation of CBA
not required to resolve tort claim).

                                        17
because of his individual status).

      Preemption of Baker's emotional distress claims against both

Farmers and White leaves him with the alternative of pursuing the

remedies available through the grievance procedures set forth in

the CBA; Baker has already filed an unfair labor practice charge

with the National Labor Relations Board.8   In these procedures, his

potential remedies are against Farmers, not White.    As Baker does

not allege that White did anything but act for the company,

however, this result is not inappropriate.   A company can act only

through the individuals it employs.   In situations where, as here,

state tort claims against a fellow employee allege nothing but

company action, allowing a plaintiff to pursue those claims in

state court would destroy the protections provided by section 301.9

II.   Dismissal Without Prejudice

      This Court reviews the district court's order of dismissal de

novo.   Hickey v. Irving Indep. School Dist., 976 F.2d 980, 982 (5th

Cir. 1992).

      The district court recognized that Baker had failed to comply


8
     This remedy was found adequate in Int'l Union, United Mine
Workers v. Covenant Coal Corp., 977 F.2d 895, 897-899 (4th Cir.
1992), where the Fourth Circuit held that section 301 barred a
federal cause of action for tortious interference with contract
against an entity not a party to the contract, but at the same
time held that section 301 preempted an identical state law
claim. Id. at 899.
9
     We note that Baker's claims against White, in his official
capacity as manager of Farmers, may also be preempted for the
same reasons as his claims against Farmers. As defined in both
the NLRA and the LMRA, an employer includes "any person acting as
an agent of an employer, directly or indirectly . . . ." 29
U.S.C. § 152(2) (1993 Supplement). White, as manager for
Farmers, was thus an employer for purposes of determining whether
the claims against him were preempted by section 301.

                                 18
with the grievance/arbitration procedures required by the CBA and

dismissed the action without prejudice for failure to exhaust his

available remedies.        Defendants cross-appeal from this dismissal,

claiming that it should have been with prejudice.                      Baker claims

that, because an arbitrator has no authority to address matters not

addressed    by   the     CBA,    and   because    the    CBA   does       not    address

intentional torts, arbitration pursuant to Article 29 of the CBA

could not provide redress for his emotional distress claims.

      It is clear that Baker's claims were properly dismissed for

failure to exhaust the grievance procedures in the CBA.                          Republic

Steel Corp. v. Maddox, 85 S.Ct. 614, 616 (1965) ("As a general rule

in   cases   to   which    federal      law    applies,   federal      labor       policy

requires that individual employees wishing to assert contract

grievances must attempt use of the contract grievance procedure

agreed upon by employer and union as the mode of redress.")

(original emphasis); Strachan v. Union Oil Co., 768 F.2d 703, 704

(5th Cir. 1985) ("The law is completely clear that employees may

not resort to state tort or contract claims in substitution for

their   rights    under     the    grievance      procedure     in     a    collective

bargaining agreement.").           Therefore the only question is whether

this dismissal should have been with or without prejudice.

      Defendants argue that the dismissal should have been with

prejudice because Baker did not file a grievance within the time

allowed by the CBA and has thus "waived" his rights to his

administrative remedies.            Article 29 of the CBA directs that

grievances "shall be initiated under . . . within five (5) working

days after the date of the occurrence on which they are based and

                                          19
not thereafter."

     In Seniority Research Group v. Chrysler Motor Corp., 976 F.2d

1185 (8th Cir. 1992), the Eighth Circuit faced but did not reach an

argument almost identical to the one in the instant case.              There

the United Auto Workers Union argued that dismissal for failure to

exhaust intra-union remedies should have been with prejudice,

because the plaintiffs were time barred from pursuing an inter-

union     appeal.   Although   the   court   declined   to   address   that

contention, because it had not been briefed, it stated:                 "The

normal consequence of a holding that a plaintiff has failed to

exhaust intra-union remedies is a dismissal without prejudice. The

plaintiff, once these remedies are exhausted, if complete relief

has not been obtained, can return to court."            Id., 976 F.2d at

1189.10

     While we agree that the district court's dismissal of Baker's

state tort claim does not preclude him from pursuing any remedies


10
     Other courts have allowed dismissal without prejudice,
without much discussion of the propriety of such a dismissal and
without any indication that the plaintiff would be time-barred
from pursuing his administrative remedies. See Wagner v. General
Dynamics, 905 F.2d 126 (6th Cir. 1990) (affirming, without
discussion of prejudice issue, dismissal without prejudice for
failure to exhaust internal union appeals procedures); Ritza v.
Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 368
n.3 (9th Cir. 1988) ("The court's order does not say that the
dismissal of the section 301 claims is without prejudice, but
specifically states that dismissal of the Title VII claims is
with prejudice. From this we assume that the court intended, as
it should have, to dismiss the section 301 claim without
prejudice.") (original emphasis); Chube v. Exxon Chemical
Americas, 760 F.Supp. 557, 562 (M.D. La. 1991) ("Because there is
an arbitration proceeding currently pending between the parties,
the Court finds that the plaintiff has failed to exhaust his
administrative remedies. Consequently, the plaintiff's action
for wrongful termination is premature and must be dismissed
without prejudice.").

                                     20
provided him by the CBA, we determine that the district court's

conclusion that those tort claims are preempted by section 301 is

final and should not be relitigated.11           Baker may not refile his

intentional infliction of emotional distress claim in state court,

nor may he bring it in federal court under the federal labor laws,

as he has not exhausted grievance procedures.

     Accordingly, we modify the district court's dismissal of

Baker's claims of intentional infliction of emotion distress to

dismissal with prejudice, except that the judgment shall not

prejudice   what   rights   Baker   may   have   to   pursue   any   remedies

provided by the CBA or other contract.

                               Conclusion

     For the reasons stated above, the order of the district court

denying Baker's motion to remand this action to state court is

AFFIRMED.    The dismissal of the action is MODIFIED to be a

dismissal with prejudice, except that the judgment shall not

prejudice whatever rights Baker may have to pursue contractual

remedies.

                                                      AFFIRMED AS MODIFIED




11
     In allowing Baker to pursue contractual remedies, we make no
determination whether those remedies are still available to him
after this lapse in time.

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