                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          AUG 13 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    WALLACE O. CUMPSTON,

                Plaintiff-Appellant,

    v.                                                   No. 02-6268
                                                  (D.C. No. CIV-01-1884-HE)
    DYNCORP TECHNICAL SERVICES,                          (W.D. Okla.)
    INC.; JOHN R. COLE; RICHARD
    PATTON; LILBURN PIERCE; CURT
    CLEARY, all individually,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before EBEL , PORFILIO , and McCONNELL , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Plaintiff Wallace O. Cumpston appeals from an order of the district court

dismissing the tort claims he asserted against his former employer and supervisors

as preempted under § 301 of the Labor Management Relations Act (LMRA). On

de novo review, see Steinbach v. Dillon Cos. , 253 F.3d 538, 539 (10 th Cir. 2001),

we affirm.

      Plaintiff alleged the individual defendants assigned him especially onerous

tasks exposing him to unhealthy high temperatures, made invasive inquiries at his

doctor’s office when he returned from a medical absence with a note specifying a

temperature-related work restriction, and imposed factually unwarranted and

procedurally improper discipline progressing from reprimand to suspension and,

finally, to termination of his employment with defendant Dyncorp Technical

Services, Inc. He alleged this harassment was prompted initially by defendants’

knowledge of his prior union activities (in connection with a different employer)

and later by defendants’ desire to retaliate for grievances he filed against them.

He asserted three legal claims: (1) Dyncorp breached the collective bargaining

agreement (CBA) governing their employment relationship; (2) the individual

defendants tortiously interfered with his employment contract with Dyncorp; and

(3) Dyncorp breached an implied contractual duty, separate from the CBA, arising

from a Dyncorp business-ethics policy proscribing workplace harassment.




                                         -2-
       Defendants moved for judgment on the pleadings, arguing that plaintiff’s

claims were preempted by both the LMRA and the National Labor Relations Act

(NLRA). The district court agreed that the claims were preempted by the LMRA

and, noting that arbitration proceedings between plaintiff and Dyncorp pursuant to

the CBA had not been completed, dismissed the action.      1
                                                               We review the district

court’s determination de novo,   see Steinbach , 253 F.3d at 539 (preemption rulings

reviewed de novo); see also Ctr. for Legal Advocacy v. Hammons         , 323 F.3d 1262,

1265 (10 th Cir. 2003) (judgment on the pleadings reviewed de novo), and affirm

for the reasons expressed below.

       The LMRA expressly governs claims “for violation of contracts between an

employer and a labor organization representing employees.” 29 U.S.C. § 185(a).

Thus, as plaintiff “tacitly admit[ted]” to the district court, App. at 266, and does

not dispute on appeal, his claim for breach of the CBA is obviously preempted.

See Garley v. Sandia Corp. , 236 F.3d 1200, 1210 (10 th Cir. 2001) (“To the extent

that [a] claim is based on an alleged breach of the CBA, the claim is clearly

preempted.”). As for the remaining claims, the controlling question is whether

they “could be resolved without reference to the [CBA].”        Steinbach , 253 F.3d at

540.



1
      In light of its ruling on LMRA preemption, the district court did not reach
the question of preemption under the NLRA.

                                          -3-
       Plaintiff’s claim against his supervisors for tortious interference rests on

his factual allegations of unfair task assignment, unduly strict and personally

invasive enforcement of rules regarding medical leave and on-the-job injury, and

substantively erroneous and/or procedurally improper imposition of discipline.

Consideration of the CBA is plainly necessary to an informed assessment of such

work-related complaints, and this must be done in connection with the LMRA.

See Steinbach , 253 F.3d at 540-41 (affirming LMRA preemption of tortious

interference claim in employment context);         see also Johnson v. Beatrice Foods

Co. , 921 F.2d 1015, 1020 (10 th Cir. 1990) (following same analysis to hold

outrageous conduct claim based on allegations of workplace harassment

preempted by LMRA). In state tort law terms, without reviewing the CBA it

would not be possible to determine whether plaintiff was treated wrongfully or

whether defendants’ actions fell within the bounds of a pertinent contractual

privilege, justification, or excuse–all matters essential to the resolution of a claim

for tortious interference in Oklahoma.      See Brown v. State Farm Fire & Cas. Co.     ,

58 P.3d 217, 223 (Okla. Civ. App. 2002) (following          Mac Adjustment, Inc. v.

Prop. Loss Research Bureau , 595 P.2d 427, 428 (Okla. 1979)).

       Plaintiff cites case law holding that claims for tortious interference with

contract may be brought, as here, between employees of a common employer only

if the defendant acted in bad faith contrary to the employer’s interests,     see Martin


                                             -4-
v. Johnson , 975 P.2d 889, 896-97 (Okla. 1998), and argues this focus on motive

brings such claims out of the preemptive shadow of the CBA, which deals, rather,

with conduct. There is a line of cases recognizing that “‘[s]o long as the state law

cause of action is concerned not with the employer’s contractual rights to [take

adverse action against] the employee, but rather with its motives in exercising that

right, the CBA is not relevant and preemption does not apply.’”           Garley , 236 F.3d

at 1213 (explaining why retaliation claim was not preempted) (quoting           Jarvis v.

Nobel/Sisco Food Servs. Co. , 985 F.2d 1419, 1427 (10 th Cir. 1993)). Such a

categorical motive/conduct dichotomy is not involved here, however, as a

defendant’s bad-faith violation of the employer’s interests merely excepts a

tortious interference claim from the threshold legal defense that an agent cannot

interfere with his own principal’s contracts,         see Martin , 975 P.2d at 896-97; it

does not relieve the plaintiff from proving the established elements of the tortious

interference claim he is then allowed to assert.        2
                                                            And, as we have seen, those

elements bring the CBA, and thus LMRA preemption, into play.

       Plaintiff’s implied-contract claim is based on Dyncorp’s business-ethics

standards, which forbid “[h]arassment of any nature.” App. at 228. He alleged



2
       We note that plaintiff raises this point in purely academic terms, as there is
no suggestion in his allegations that the individual defendants acted on personal
motives against Dyncorp’s interests; on the contrary, the thrust of his complaint is
that they were effectuating Dyncorp’s anti-union designs.

                                                -5-
that defendants’ actions constituted proscribed harassment and that by allowing

such conduct Dyncorp breached a duty it assumed–separate from the CBA–by

issuing the cited standards.    See id. at 14-15. This breach, he contends, enables

him to invoke the principle that “a plaintiff covered by a collective-bargaining

agreement is permitted to assert legal rights independent of that agreement,

including state-law contract rights, so long as the contract relied upon is not a

collective-bargaining agreement.”       Garley , 236 F.3d at 1210 (quotation omitted).

The district court disagreed, holding that despite its separate origin, the

implied-contract claim was “‘inextricably intertwined with consideration of the

terms of the [CBA],’” and, thus, preempted by the LMRA. App. at 267 (quoting

Garley , 236 F.3d at 1211, which held implied-contract claim based on personnel

policy preempted under LMRA) (further quotation omitted).

       Plaintiff insists his case is distinguishable from   Garley because there are no

indications here “that the [standards] he cites were intended to be read in harmony

with the CBA.” Garley , 236 F.3d 1210-11 (relying on inclusion of references to

unionized employees in pertinent documents to hold implied contract inextricably

intertwined with CBA). It is difficult to say in the abstract whether Dyncorp’s

standards were intended to be read in conjunction with the CBA, but we need not

resolve that question to decide the preemption issue in this case. Even if there is

no general intrinsic connection between the CBA and the standards, consideration


                                             -6-
of the CBA would still be necessary to assess the merit of plaintiff’s allegations

regarding breach of the implied contract for two particularized and interrelated

reasons. Because the prohibition on “harassment” set out in the standards is

devoid of descriptive content,   3
                                     and the actions plaintiff complains of are not on

their face so inherently or plainly wrongful as to make application of such a label

ineluctable, there would be no way of telling whether the standards were violated

here without consulting the CBA to assess the opposing rights and privileges of

the parties. Thus, the CBA would be indispensable to a proper resolution of the

implied-contract claim, which is, therefore, preempted under the LMRA.

       Finally, plaintiff’s pleadings include numerous references to retaliation for

his union activities. Because the crux of a retaliation claim is the wrongful intent

behind the defendants’ conduct independent of the permissibility of that conduct

under the CBA, such a claim may escape LMRA preemption, even if it overlaps

factually with matters covered by the CBA.          See Garley , 236 F.3d at 1208-09,



3
       Aside from a general anti-discrimination provision prohibiting “disparaging
comments or criticisms on the basis o[f] race, color, creed, sex, national origin,
age, handicap or veteran’s status” (none of which protected classes are implicated
by plaintiff’s claims), the only language fleshing out what constitutes proscribed
harassment refers to “conduct that interferes with work related responsibility and
legal requirements for the protection of all employees.” App. at 228. Rather than
establishing a stand alone criterion for proscribed conduct, this reference to work
responsibilities underlines the need to look to the CBA for clarification of what
relevant duties, rights, and privileges might be operative in the particular contexts
involved in plaintiff’s allegations.

                                              -7-
1213 (following Lingle v. Norge Div. of Magic Chef, Inc.      , 486 U.S. 399, 407

(1988)). Strictly speaking, plaintiff formally pled retaliation only as one aspect of

his now-abandoned CBA breach claim,        see App. at 13-15, but it was a prominent

theme throughout his initial factual allegations. Unfortunately, plaintiff’s failure

to set out a distinct legal claim for retaliation undoubtedly led the district court to

focus its attention elsewhere, with the result that its order does not address the

unique status of retaliation claims in relation to LMRA preemption recognized in

such cases as Garley and Lingle . This omission does not control our disposition

of the appeal, however. This court has often noted that “‘we are free to affirm a

district court decision on any grounds for which there is a record sufficient to

permit conclusions of law, even grounds not relied upon by the district court.’”

United States v. Taylor , 97 F.3d 1360, 1364 (10 th Cir. 1996) (quoting    Griess v.

Colorado , 841 F.2d 1042, 1047 (10 th Cir. 1988) (further quotation omitted)).

Defendants have argued repeatedly that plaintiff’s allegations of retaliation for

union activities fall within the preemptive scope of the NLRA under the

long-standing doctrine of   San Diego Bldg. Trades Council v. Garmon       , 359 U.S.

236 (1959).   See App. at 20 (answer), 24-27 (motion and brief for judgment on

the pleadings), and 263 (reply brief in support of motion);     see also Appellee’s

Brief at 22-25, 28-29. This preemption defense has, tellingly, met with only

silence from plaintiff.


                                            -8-
       Under the Garmon doctrine, the National Labor Relations Board (NLRB)

has exclusive jurisdiction over unfair labor practices prohibited by the NLRA.

Indeed, given the importance of ensuring a consistent national labor policy, the

NLRB’s authority “pre-empts state and federal court jurisdiction to remedy

conduct that is arguably protected or prohibited by the Act.”      Tamburello v.

Comm-Tract Corp. , 67 F.3d 973, 976 (1 st Cir. 1995) (explaining       Garmon and

quoting Amalgamated Ass’n of Street, Elec. Ry & Motor Coach Employees v.

Lockridge , 403 U.S. 274, 276 (1971)) (emphasis added);        see also United Ass’n of

Journeymen & Apprentices v. Bechtel Power Corp.         , 834 F.2d 884, 886-87 (10    th

Cir. 1987). As in    Tamburello , “[t]he ultimate question presented by [plaintiff’s]

claims [of retaliation] is whether his supervisors at [Dyncorp] intimidated,

coerced, threatened, and harassed him into [losing] his job in retaliation for his

union activities.”   Tamburell o, 67 F.3d at 977. “It is beyond dispute that these

allegations, if found to be true, would constitute a violation of the NLRA.”         Id.

There are limited exceptions to the    Garmon doctrine, see id. at 977-78, but,

despite repeated opportunities to do so, plaintiff has never argued that any apply

here, and none press themselves upon us of their own weight. Accordingly, to the

extent plaintiff’s pleadings assert a claim for anti-union retaliation, we hold the

claim barred by Garmon preemption and, hence, properly dismissed for lack of

jurisdiction.


                                            -9-
     The judgment of the United States District Court for the Western District of

Oklahoma is AFFIRMED.



                                                  Entered for the Court



                                                  John C. Porfilio
                                                  Circuit Judge




                                      -10-
