                       UNITED STATES COURT OF APPEALS
                            FOR THE FIFTH CIRCUIT

                             _______________________

                                   No. 01-11508
                             _______________________


                               MARGARITA NAVARRO,
                                                         Plaintiff-Appellant,

                                     versus

                               EXCEL CORPORATION,
                                                         Defendant-Appellee.

_________________________________________________________________

           Appeal from the United States District Court
      for the Northern District of Texas, Lubbock Division
                             01-CV-179
_________________________________________________________________
                         September 5, 2002


Before KING, Chief Judge, JONES and EMILIO M. GARZA, Circuit
Judges.

PER CURIAM:*

          Margarita Navarro contends that she was injured because

her employer, Excel Corporation, negligently failed to maintain a

reasonably safe workplace.           The district court granted Excel’s

motion for summary judgment on the grounds that Navarro’s state-law

negligence     claim    is    preempted   by   Section    301   of   the   Labor

Management Relations Act.         We AFFIRM.



     *
          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that this opinion should not be published and is not precedent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.
                                   I.    BACKGROUND

            Plaintiff Margarita Navarro worked as an “arm-boner” in

a meat-packing plant in Plainview, Texas. Navarro alleges that the

repetitive movements required by her job caused her to develop

carpal-tunnel syndrome that required surgery on both hands.

            Navarro filed this negligence action in state court

against her employer, Excel Corporation.                     Navarro alleged that

Excel negligently        failed     to    provide   a   safe    workplace       by   not

following    various      ergonomic        guidelines     for       reducing     stress

injuries.    Excel removed the case to federal court.

            As   Excel    is   a    nonsubscriber       to    the    Texas     Workers’

Compensation Act, benefits for occupational injuries are provided

according to a collective-bargaining agreement (CBA) between Excel

and the employees’ union.            The CBA’s disability plan requires an

employee to waive her right to sue in return for Excel’s providing

a claims procedure for disability benefits.

            The district court granted summary judgment for Excel on

the grounds that Navarro’s state-law claim is preempted by the

Labor Management Relations Act (LMRA), 29 U.S.C. § 185(a).                           The

district court dismissed the case without prejudice, and Navarro

appeals.




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                              II.      DISCUSSION

                                  A.   Preemption

            We review the district court’s grant of summary judgment

de novo.    Cupit v. Walts, 90 F.3d 107, 108-09 (5th Cir. 1996).

            Section   301    of    the   LMRA2 vests   jurisdiction    in   the

federal courts to hear claims for violations of labor contracts.

Baker v. Farmers Elec. Co-op., Inc., 34 F.3d 274, 278 (5th Cir.

1994).     The Supreme Court has long recognized that Section 301

preempts state-law claims, whether sounding in contract or tort,

where the resolution of the state-law claim “depends upon the

meaning of the collective-bargaining agreement.”             Lingle v. Norge

Div. of Magic Chef, Inc., 486 U.S. 399, 405, 108 S.Ct. 1877, 1881,

100 L.Ed.2d 410 (1988); Richter v. Merchants Fast Motor Lines,

Inc., 83 F.3d 96, 97 (5th Cir. 1996).

            The   question        presented   in    this   case   is   whether

adjudicating Navarro’s negligence claim would require a court to

interpret or apply the terms of the CBA. Navarro acknowledges that


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            Section 301 provides that

     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).


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the CBA imposes duties on Excel with respect to workplace safety.

Among other things, the CBA requires Excel to create safety and

grievance committees, allow paid rest periods, and give employees

protective equipment.          Procedurally, the CBA provides compensation

and    remedial      procedures,     including      arbitration,       to    resolve

workplace injury claims.         Even though Navarro’s complaint does not

allege a breach of the CBA, a court still would have to determine

the scope of Excel’s duties and Navarro’s remedies under the CBA in

order to define the scope of Excel’s legal duty for purposes of a

negligence claim.       The district court correctly ruled that, under

this circuit’s precedent, Navarro’s state-law claim is preempted by

Section 301 of the LMRA.         See Cupit, 90 F.3d at 109-10; Richter, 83

F.3d at 97-98; Baker, 34 F.3d at 280-81.

                                B.   Public Policy

             Navarro’s alternative argument is that preemption under

Section 301 applies only where the underlying CBA is valid, and, in

this case, the CBA is void as against public policy.

             Excel    is   a     nonsubscriber      to       the   Texas    Workers’

Compensation Act (TWCA).          The TWCA permits an employer to opt out

of the system, but it discourages this choice by abolishing the

traditional common law defenses, such as contributory negligence

and assumption of risk, where an employee sues her nonsubscribing

employer. Texas Workers’ Compensation Comm’n v. Garcia, 893 S.W.2d

504,   511   (Tex.     1995);     TEX.   LABOR   CODE    §   406.033(a).       As   a



                                         4
nonsubscriber, Excel has chosen to administer its own plan for

providing compensation for injured employees.

          Several appellate courts in Texas had held that where a

nonsubscribing employer’s disability plan provided benefits not

comparable to those available under the TWCA, the plan would be

declared void:

     [P]ublic policy does not permit an employer to reap the
     principal benefit of providing workers’ compensation
     coverage -- the waiver of an injured employee’s common
     law and statutory claims -- without also bestowing on the
     injured employee the principal benefit for which that
     waiver is the “quid quo pro” -- the limited but certain
     benefits guaranteed by workers’ compensation insurance
     coverage. If the “balance” between the extent of the
     waiver and the receipt of benefits “is tipped so that the
     employee’s benefits under the statute are substantially
     reduced, the clear intent of the legislature is
     thwarted.”

Reyes v. Storage & Processors, Inc., 995 S.W.2d 722, 727-28 (Tex.

App. -- San Antonio 1999, pet. denied)(citations omitted); see also

Castellow v. Swiftex Mfg. Corp., 33 S.W.3d 890, 901 (Tex. App. --

Austin 2000, no pet.)(“A waiver whereby an employee foregoes [sic]

more common-law remedies than are surrendered under the Act, in

exchange for fewer benefits than are afforded by the Act, must be

declared invalid as against public policy.”).      Relying on similar

language in state court decisions, this court once described a

nonsubscribing employer’s plan as “valid and enforceable” where the

employer contractually obligated itself to pay benefits “equal to

or   greater   than   those   provided   under   the   Texas   Workers’

Compensation Act.”    Cupit, 90 F.3d at 109.


                                   5
            The Texas Supreme Court, however, specifically overruled

Castellow   and   Reyes   to    the    extent    that       they    engaged    in   a

substantive    comparison      of    benefits    between      the    TWCA     and   a

nonsubscribing employer’s plan.             Lawrence v. CDB Serv., Inc., 44

S.W.3d 544, 551 (Tex. 2001)(“We believe that courts engaging in

such a qualitative, plan-by-plan evaluation is ill-advised.”).                      In

Lawrence, the Texas Supreme Court upheld an employee benefit plan

that required employees to waive entirely the right to sue the

employer.    Id. at 545-46.

            Just a few months after the Texas Supreme Court had

decided Lawrence, the Texas Legislature amended the TWCA to provide

that a cause of action against a nonsubscribing employer “may not

be waived by an employee before the employee’s injury or death.

Any agreement by an employee to waive a cause of action . . .

before the employee’s injury or death is void and unenforceable.”

TEX. LABOR CODE § 406.033(e).       But this statute does not aid Navarro,

whose injury predates the law’s effective date by nearly two years.

The law provides that it only applies to “compensable injury that

occurs on or after the effective date of this Act.”

            Navarro   does   not     contend    that    §   406.033(e)      applies

retroactively to this case.           Instead, her position is that, in

light of the current public policy against waivers, this court

should hold that the underlying CBA is void.                  If the underlying

labor agreement is void, Navarro continues, then her negligence

claim is not preempted by Section 301 of the LMRA.                  This assertion

                                        6
is, in light of the express non-retroactivity of § 406.033(e),

unpersuasive.

                         III.   CONCLUSION

          For the foregoing reasons, the district court did not err

in dismissing this case without prejudice.    The judgment of the

district court is AFFIRMED.




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