     Case: 14-10831      Document: 00513124597         Page: 1    Date Filed: 07/22/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-10831
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            July 22, 2015
CALVIN R. CARRICK,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellant

v.

AT&T, INCORPORATED; COMMUNICATIONS WORKERS OF AMERICA,
AFL-CIO,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:14-CV-372


Before STEWART, Chief Judge, and PRADO and HAYNES, Circuit Judges.
PER CURIAM: *
       Calvin Carrick appeals the dismissal of his complaint against his former
employer, AT&T Inc., and his union, Communications Workers of America,
AFL-CIO (CWA), pursuant to Federal Rule of Civil Procedure 12(b)(6), for
failure to state a claim.          Carrick sued after he was terminated from
Southwestern Bell for poor job performance and his grievance was denied.



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 14-10831

      The district court dismissed Carrick’s suit after it determined that
Carrick had brought a claim that the defendants violated only §§ 7 and 8 of the
National Labor Relations Act (NLRA), 29 U.S.C. §§ 157, 158, and that the
National Labor Relations Board (NLRB) had exclusive jurisdiction.            The
district court added that to the extent that Carrick sought to appeal the
NLRB’s decision dismissing his charge that the CWA failed in its duty of
representation, such an appeal had to be made directly “to the relevant court
of appeals.”
      We review a Rule 12(b)(6) dismissal de novo. Asadi v. G.E. Energy
(USA), L.L.C., 720 F.3d 620, 622 (5th Cir. 2013). Dismissal under Rule 12(b)(6)
is appropriate if a claim is subject to federal preemption. Simmons v. Sabine
River Auth. La., 732 F.3d 469, 473 (5th Cir. 2013), cert. denied, 134 S. Ct. 1876
(2014).
      Section 8(d) of the NLRA mandates that employers and unions bargain
in good faith over “wages, hours, and other terms and conditions of
employment.” 29 U.S.C. § 158(d). In San Diego Bldg. Trades Council v.
Garmon, 359 U.S. 244-45 (1959), the Supreme Court held that “[w]hen an
activity is arguably subject to § 7 or § 8 of the [NLRA], the States as well as
the federal courts must defer to the exclusive competence of the [NLRB] if the
danger of state interference with national policy is to be averted.” Carrick
argues that the district court erred when it determined that it lacked
jurisdiction over his complaint because his complaint alleged a duty of fair
representation (DFR) claim, as well as a collective bargaining agreement
(CBA) claim, and that both claims constituted a claim for “Unfair Labor
Practices.”
      Carrick may not urge a DFR or CBA claim in addition to his § 8(d) claim
at this juncture. See Hopkins v. Cornerstone Am., 545 F.3d 338, 347 (5th Cir.



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                                 No. 14-10831

2008); Hotard v. State Farm Fire & Cas. Co., 286 F.3d 814, 818 (5th Cir. 2002).
Given that Carrick argued a violation of § 8(d) only, the district court’s Rule
12(b)(6) dismissal for lack of jurisdiction was proper. See Garmon, 359 U.S. at
245.
        Even if this court were to consider Carrick’s DFR claim against CWA,
and deem his suit a hybrid, see United Parcel Serv., Inc. v. Mitchell, 451 U.S.
56, 61-62, 66 (1981), it is time barred because the most recent events of which
he complains occurred in 2010. See DelCostello v. Teamsters, 462 U.S. 151, 171
(1983); Barrett v. Ebasco Constructors, Inc., 868 F.2d 170, 171 (5th Cir. 1989).
To the extent that Carrick “disagrees” with the district court’s statement that
if he wished to appeal the NLRB’s decision, he had to appeal “to the relevant
court of appeals,” his argument is unavailing. See NLRB v. United Food &
Commercial Workers Union, Local 23, 484 U.S. 112, 118-19 (1987).
        AFFIRMED.




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