          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                  Fifth Circuit

                                                                                        FILED
                                                                                      March 28, 2012

                                             No. 11-30050                             Lyle W. Cayce
                                                                                           Clerk

HERBERT ALLEN MCKNIGHT,

                                                          Plaintiff-Appellant
v.

DRESSER, INCORPORATED,

                                                          Defendant-Appellee

------------------------------------------------------------------------------------------------------------
                                          consolidated with
                                         Case No. 11-30072

HABEN LACHNEY,

                                                          Plaintiff-Appellant
v.

DRESSER, INCORPORATED,

                                                          Defendant-Appellee

------------------------------------------------------------------------------------------------------------
                                          consolidated with
                                         Case No. 11-30104

FOSTER L. ANDERSON; JASON J. AYMOND; HARRY BONTON; QUINCY
C. BOYD; BILLY G. BRUNSON; ET AL,

                                                          Plaintiffs-Appellants
v.

DRESSER, INCORPORATED,
                                  No. 11-30050

                                            Defendant-Appellee


                Appeals from the United States District Court
                    for the Western District of Louisiana


Before GARZA, CLEMENT, and SOUTHWICK, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
      In a consolidated appeal, Plaintiffs-Appellants contend that the district
court erred in denying their motions to remand and in dismissing their
workplace safety claims as time-barred.         For the following reasons, we
REVERSE the judgment of the district court and REMAND for further
proceedings consistent with this opinion.
                                        I
      Defendant-Appellee Dresser, Inc., (“Dresser”) is an industrial valve
manufacturer with facilities in the state of Louisiana. Appellants all worked for
Dresser at some point in the last four decades, their respective employments
terminating at various times between 1977 and 2009. In 2010, Plaintiffs-
Appellants Herbert Allen McKnight, Haben J. Lachney, and Foster L. Anderson,
along with 42 other plaintiffs, filed three separate suits in Louisiana state court
against Dresser. McKnight’s and Lachney’s complaints alleged that Dresser had
been negligent in failing to maintain a safe workplace, and Anderson’s complaint
alleged negligence, strict liability, and fraudulent misrepresentation. In all
three suits, Appellants claimed that Dresser failed to properly monitor and
mitigate exposure to loud noise at Dresser’s industrial facility, and that these
failures led to long-term hearing loss. Appellants sought damages for these
injuries.
      Dresser removed the actions to federal court pursuant to § 301 of the
Labor Management Relations Act (“LMRA”), which grants federal jurisdiction


                                        2
                                       No. 11-30050

over state law claims that require interpretation of a collective bargaining
agreement (“CBA”). Dresser asserted that the state court could not adjudicate
Appellants’ tort claims without interpreting the parties’ CBA,1 and that the
district court therefore had jurisdiction under § 301. See Lingle v. Norge Div. of
Magic Chef, Inc., 486 U.S. 399, 413 (1988) (“[A]n application of state law is pre-
empted by § 301 of the [LMRA] only if such application requires the
interpretation of a collective-bargaining agreement.”). Appellants filed motions
to remand, contending that their tort claims were independent of the CBA. See
Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 212-213 (1985) (holding that § 301
does not preempt state law claims based on non-negotiable, independent rights).
       The district court adopted the recommendation of the magistrate judge
and denied Appellants’ motions to remand, citing Navarro v. Excel Corp., 48 F.
App’x 481 (5th Cir. 2002) (per curiam) (unpublished) (holding that § 301
preempted plaintiff’s state law claims because the parties’ CBA imposed duties
on the employer with regard to workplace safety, and the court would have to
interpret the CBA to ascertain the employer’s duties). The district court then
granted Dresser’s Rule 12(b)(6) motions to dismiss, concluding that Appellants’




       1
         The CBA in this case provided, among other things, that Dresser would (1) furnish all
required safety equipment, (2) institute reasonable and necessary precautions for safeguarding
health and safety, (3) not deduct pay for union safety representatives based on time spent
carrying out their duties, and (4) conduct a joint safety inspection with the union on the 15th
of every month. The CBA also stipulated that matters of occupational safety and health would
be handled between employees and their supervisors, and if the matters remained unresolved,
they would be reported to the union safety representative.

                                              3
                                       No. 11-30050

complaints were untimely under the applicable federal statute of limitations.2
Appellants filed notices of appeal, and the three actions were consolidated.
       We review the district court’s denial of Appellants’ motions to remand, the
propriety of removal under § 301, and the existence of subject matter jurisdiction
as interrelated questions of law subject to de novo review. See Oviedo v.
Hallbauer, 655 F.3d 419, 422 (5th Cir. 2011) (citing Kollar v. United Transp.
Union, 83 F.3d 124, 125 (5th Cir. 1996)).
                                              II
       Appellants’ primary contention on appeal is that the district court erred
in relying on Navarro because this case involves non-waivable Louisiana
workplace safety claims, rather than waivable Texas claims.                      Specifically,
Appellants urge this court to adopt the reasoning of the Eastern District of
Louisiana in Arceneaux v. Amstar Corp., No. 03-3588, 2004 WL 574718 (E.D. La.
Mar. 22, 2004). See id. at *4 (holding that § 301 did not preempt Louisiana
plaintiff’s state workplace safety claims, even though the parties’ CBA addressed
workplace safety, because plaintiff was asserting independent, nonnegotiable
state law rights). Dresser counters that this court’s decision in Espinoza v.
Cargill Meat Solutions Corp., 622 F.3d 432 (5th Cir. 2010), is controlling. See id.
at 442-44 (citing Navarro and holding that § 301 preempted Texas plaintiff’s
state workplace safety claims because the CBA helped define employer’s duty to
provide a safe workplace).




       2
         The district court, citing DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151 (1983),
applied a federal statute of limitations of six months from the date the Appellants received
notice of their injuries and concluded that Appellants’ claims were untimely on their face.
Appellants contend on appeal that the district court should have instead applied Louisiana’s
one-year prescription for tort actions. Because we ultimately conclude that the district court
should have granted Appellants’ motions to remand and was without jurisdiction to grant the
motions to dismiss, we do not address this issue.

                                               4
                                 No. 11-30050

                                       A
      Congress has dictated that federal courts have jurisdiction over all cases
“arising under the Constitution, laws, or treaties of the United States.” 28
U.S.C. § 1331. Additionally, the “well-pleaded complaint” rule requires that, for
a federal court to have “arising under” jurisdiction, the plaintiff’s federal law
claims must appear on the face of the complaint. Merrell Dow Pharm. Inc. v.
Thompson, 478 U.S. 804, 808 (1986). Thus, if a complaint pleads only state law
claims, a federal court generally does not have jurisdiction over that complaint,
even if the defendant asserts preemption as an affirmative defense. Gutierrez
v. Flores, 543 F.3d 248, 251-52 (5th Cir. 2008).
      However, the complete preemption doctrine presents a narrow exception
to the well-pleaded complaint rule. See Johnson v. Baylor Univ., 214 F.3d 630,
632 (5th Cir. 2000) (“Congress may so completely preempt a particular area that
any civil complaint raising this select group of claims is necessarily federal in
character.”) (quoting Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987)).
Unlike ordinary preemption, complete preemption is jurisdictional in nature,
and “[a]s such, it authorizes removal to federal court even if the complaint is
artfully pleaded to include solely state law claims . . . .” Id. (quoting Heimann
v. Nat’l Elevator Indus. Pension Fund, 187 F.3d 493, 500 (5th Cir. 1999)).
      The Supreme Court has applied complete preemption in a small number
of areas, one of which is cases involving § 301 of the LMRA. Avco Corp. v.
Machinists, 390 U.S. 557 (1968). Enacted by Congress to ensure uniformity in
the interpretation of CBAs, § 301 provides:
      Suits for violation of contracts between an employer and a labor
      organization representing employees in an industry affecting
      commerce . . . may be brought in any district court of the United
      States having jurisdiction of the parties . . . .




                                       5
                                   No. 11-30050

29 U.S.C. § 185(a). In Teamsters v. Lucas Flour Co., 369 U.S. 95 (1962), the
Court explained that, “in enacting § 301 Congress intended doctrines of federal
labor law uniformly to prevail over inconsistent local rules.” Id. at 104. Thus,
any state court suit alleging violation of a labor contract must be brought under
§ 301 and resolved under federal law. See id. at 103. The Supreme Court has
also held that § 301 preemption may apply to tort claims as well. See Allis-
Chalmers, 471 U.S. at 210-11. The Court in Allis-Chalmers reasoned that:


      If the policies that animate § 301 are to be given their proper range
      . . . the pre-emptive effect of § 301 must extend beyond suits alleging
      contract violations. . . . [Q]uestions 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.

Id.
      However, the Allis-Chalmers Court limited its holding to tort suits
involving “state-law rights and obligations that do not exist independently of
private agreements.”       Id. at 212-13 (“[I]t would be inconsistent with
congressional intent under that section to preempt state rules that proscribe
conduct, or establish rights and obligations, independent of a labor contract.”).
The Court explained that § 301 preemption of state tort claims is only proper
where “resolution of [the] state-law claim is substantially dependent upon
analysis of the terms of [the] agreement made between the parties in a labor
contract . . . .” Id. at 220. The focus of such an analysis is whether the state tort
action “confers nonnegotiable state-law rights . . . independent of any right
established by contract” or instead “evaluation of the tort claim is inextricably
intertwined with consideration of the terms of the labor contract.” Id. at 213.



                                         6
                                  No. 11-30050

      The narrow issue for our review is thus whether (1) Appellants’ claims are
“inextricably intertwined” with the CBA, in which case the district court was
correct to deny Appellants’ motion to remand, or (2) Appellants’ claims are based
on independent, non-negotiable state law rights, in which case the district court
was without jurisdiction and erred in denying the motion to remand.
                                        B
      Appellants contend that Arceneaux v. Amstar Corp., No. 03-3588, 2004 WL
574718 (E.D. La. Mar. 22, 2004) provides the proper analysis. In Arceneaux, the
plaintiffs brought Louisiana state law claims seeking damages for gradual
hearing loss under LA. REV. STAT. § 23:13, which requires all Louisiana
employers to provide a “reasonably safe” workplace. Id. at *1. The employer
removed the case to federal court, asserting § 301 preemption. Id. The district
court granted the plaintiffs’ motion to remand, reasoning as follows:
      To establish a violation of Section 23:13 against an employer, a
      plaintiff must establish “that her accident and injuries were caused
      by an unreasonable risk of harm created by the employer’s failure
      to properly fulfill the duties imposed by the . . . statute.” Jones v.
      Trailer, 636 So. 2d 1112, 1116 (La. Ct. App. 1994). Here, not one
      allegation in plaintiffs’ complaint relies on or refers to the CBA.
      Indeed, plaintiffs’ complaint specifically alleges that defendants did
      not comply with state and federal regulations concerning workplace
      exposure to noise. Plaintiffs do not allege that defendants violated
      the applicable health and safety provisions of the CBA. To
      determine whether defendants violated their duty to plaintiffs, a
      court need look only as far as Louisiana Revised Statute § 23:13. As
      noted by the Louisiana courts of appeals, to determine whether an
      employer has violated Section 23:13, the court must examine only
      whether the employer fulfilled his duties imposed by the statute. See
      Jones, 636 So. 2d at 1116. Contract interpretation is not required
      here to determine whether the employer is liable in tort.

Id. at *4. Appellants contend that they, like the plaintiffs in Arceneaux, brought
independent claims under Louisiana law which the state court may adjudicate
without interpreting the parties’ CBA.

                                         7
                                         No. 11-30050

       Dresser counters that this court’s decision in Espinoza is dispositive. In
Espinoza, the plaintiff brought a negligence claim under Texas law against her
employer Cargill after suffering a hand injury while operating a company saw.
Espinoza, 622 F.3d at 437. This court concluded that § 301 authorized removal
of Espinoza’s state law claim because ascertaining Cargill’s duties and
Espinoza’s remedies would involve interpreting the terms of the CBA. Id. at
445. The Espinoza court explained that “the CBA [did] not ‘merely acknowledge
[ ] Cargill’s duty to provide a safe workplace for its employees’; instead, it
help[ed] define that duty by mandating such things as plant inspections, safety
committees for each shift, and the provision of safety equipment.” Id. at 444.
As Dresser notes, the CBA in the present case similarly contains specific duties
such as the duty to provide safety equipment, to institute precautions, not to
deduct pay for union safety representatives for time spent carrying out their
duties, and to conduct safety inspections. According to Dresser, Espinoza stands
for the proposition that, if a CBA elaborates on workplace safety in this way,
adjudication of a state workplace safety claim requires interpretation of the
CBA.
       However, the Espinoza court also found it significant that Espinoza had
waived her state law claims, as Texas law allows. Id. at 443 (“[S]tate-law rights
and obligations that do not exist independently of private agreements, and that
as a result can be waived or altered by agreement of the parties, are pre-empted
by those agreements.”) (quoting Allis-Chalmers, 471 U.S. at 213) (emphasis
added)). In this way, Appellants’ Louisiana workplace safety claims are different
from the Texas law claims in Espinoza.3 Unlike Texas, Louisiana not only places


       3
         Dresser and the district court also cited the line of cases leading to Espinoza, including
Navarro. But Navarro, and all of the Fifth Circuit cases on which Navarro relied, involved
plaintiffs who, like Espinoza, were limited to claims under the CBA because they had waived
their state law claims. See Navarro, 48 F. App’x at *1 (“The CBA’s disability plan requires an
employee to waive her right to sue in return for Excel’s providing a claims procedure for

                                                8
                                        No. 11-30050

a duty on employers to provide a safe work environment, it expressly forbids the
waiver of that duty in a CBA. See LA. REV. STAT. § 23:13 (“Every employer shall
furnish employment which shall be reasonably safe for the employees therein.”);
id. at § 23:1033 (“No contract, rule, regulation or device whatsoever shall operate
to relieve the employer, in whole or in part, from any liability created by this
Chapter except as herein provided.”). In other words, Louisiana workplace
safety claims are based on precisely the type of independent, non-negotiable
state law rights and obligations which the Supreme Court excepted from § 301
preemption.4 This distinction is no less important because a claim raises the
same questions and implicates the same facts as a claim under the parties’ CBA.
See Lingle, 486 U.S. at 409-10 (“[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.”).
       Alternatively, Dresser contends that, even if the state law rights are
independent, interpretation of the CBA is necessary because Louisiana law
provides no “objective standard” for determining whether Dresser has provided



disability benefits.”); Cupit v. Walts, 90 F.3d 107, 109 (5th Cir. 1996) (“In lieu of subscribing
to the Texas Workers’ Compensation Act, the Company agrees to provide directly to its
employees the compensation and benefits otherwise available . . . .”); Richter v. Merch. Fast
Motor Lines, Inc., 83 F.3d 96, 97 (5th Cir. 1996) (“The CBA at issue provides the exclusive
remedy for settling disputes involving negligence on the part of the Company . . . .”).
       4
           Dresser contends that, because the National Labor Relations Act (“NLRA”) requires
bargaining over workplace safety, Louisiana’s right to a safe workplace cannot be “non-
negotiable.” See 29 U.S.C. § 158(d); NLRB v. Gulf Power Co., 384 F.2d 822, 825 (5th Cir. 1967)
(holding that “safety rules and practices . . . are undoubtedly conditions of employment, and
. . . Section 8(d) requires good faith bargaining as a mutual obligation of the employer and the
Union in connection with such matters”). However, the fact that the NLRA requires employers
to bargain health and safety provisions in a CBA does not mean that a state like Louisiana
may not also grant employees independent, non-negotiable state law rights and forbid
employers from bargaining those rights away.

                                               9
                                         No. 11-30050

a reasonably safe work environment. We disagree. First, Louisiana statutory
law articulates a duty which goes beyond a vague mandate for workplace safety:
       Every employer shall furnish employment which shall be reasonably
       safe for the employees therein. They shall furnish and use safety
       devices and safeguards, shall adopt and use methods and processes
       reasonably adequate to render such employment and the place of
       employment safe in accordance with the accepted and approved
       practice in such or similar industry or places of employment
       considering the normal hazard of such employment, and shall do
       every other thing reasonably necessary to protect the life, health,
       safety and welfare of such employees.

LA. REV. STAT. § 23:13. Second, a substantial body of Louisiana and Fifth Circuit
case law applies § 23:13 and general tort principles to negligence claims in the
complete absence of a CBA.5 In other words, Louisiana law not only states an
employer’s duty under § 23:13, but also fleshes out the contours of that duty in
specific fact scenarios.        Resort to the parties’ contract is not required to
determine whether Dresser violated these independent, non-negotiable duties.
       Lastly, Dresser expresses concern that, if we adopt the analysis presented
in Arceneaux, all Louisiana safety claims arising under any CBA in Louisiana


       5
         See, e.g., Jones v. Trailor, 93-2144 (La. App. 4 Cir. 4/28/94); 636 So. 2d 1112, 1116
(holding that, to establish a violation of § 23:13, a plaintiff must establish “that her accident
and injuries were caused by an unreasonable risk of harm created by the employer’s failure to
properly fulfill the duties imposed by the . . . statute”); Vega v. S. Scrap Material Co., 517 F.2d
254, 258-59 (5th Cir. 1975) (“Southern Scrap had a duty as employer to provide decedent with
a safe place to work, LA. REV. STAT. 23:13; . . . . [T]he breach of the duty imposed by the
employment or agency relationship may, under general tort principles, be actionable
negligence because of the creation or maintenance thereby of an undue risk of harm to
others.”); Kavanaugh v. Orleans Parish Sch. Bd., CA 4588 (La. App. 4 Cir. 4/11/86); 487 So.
2d 533, 533 (holding that liability under § 23:13 requires an analysis of the foreseeability of
harm); Lytell v. Hushfield, 81-2117 (La. 1/25/82); 408 So. 2d 1344, 1347-48 (holding that an
employer’s duty under § 23:13 includes providing safe equipment used in connection with
work); Guidry v. Coregis Ins. Co., 04-325 (La. App. 3 Cir. 12/29/04); 896 So. 2d 164, 178-79
(holding that a company was liable for dangerous power lines because they posed a normal
hazard to employees and the danger was a frequent topic of conversation among its
employees); Miller v. Emp’rs Mut. Liab. Ins. Co. of Wis., 13302 (La. App. 2 Cir. 8/29/77); 349
So. 2d 1353, 1363 (holding that failure of employer to use extraordinary care and take every
precaution against injury does not constitute actionable negligence).

                                               10
                                       No. 11-30050

will be subject to state law analysis rather than a common body of federal law.
These concerns are misplaced. The fact that Louisiana state law establishes
non-negotiable rights and obligations with respect to workplace safety does not
prevent employers and employees from contracting for other rights and
obligations outside those found in Louisiana law, and enforcing them with a
contract suit. If this takes place, § 301 will require that those claims be heard
in federal court. Likewise, a tort claim that incorporates specific duties from a
CBA may also be subject to removal under § 301, even if such a claim is labeled
as a negligence claim. But where a plaintiff, like Appellants in this case, brings
a negligence claim based on independent, non-negotiable state law rights, and
his complaint neither refers to nor relies on the CBA, such a claim will not be
subject to § 301 preemption.6
       On the other hand, deciding this case under Espinoza would allow
Louisiana employers to remove all state workplace safety claims to federal court
as long as the governing CBA made reference with some specificity to workplace
safety, even though Louisiana law prevents the waiver of state law claims. This
was not the intent of § 301. See Allis-Chalmers, 471 U.S. at 211-12 (“Nor is
there any suggestion that Congress, in adopting § 301, wished to give the
substantive provisions of private agreements the force of federal law. . . . Such
a rule of law would delegate to unions and unionized employers the power to


       6
         Dresser points to no specific language in Appellants’ complaints which was borrowed
from the CBA, neither does our review of the complaints reveal any. Instead, Dresser attempts
to tie duties found in the CBA to various dissimilar duties alleged in Appellants’ complaint.
For example, Dresser contends that the complaints’ allegations that Dresser had a duty “to see
that Plaintiffs performed the duties pertaining to his work in a proper, safe and workmanlike
manner” or “to see that proper safety rules were adopted, promulgated, and enforced as
concerned the use of hearing protection devices and other protective equipment for all
individuals entering its facilities” are really references to the duty contained in the CBA to
provide for joint safety inspections on the 15th of every month. See Appellants’ Br. at 32-34.
We do not think that these comparisons, or the others made by Dresser, between Appellants’
complaints and the CBA demonstrate that Appellants were merely masquerading contract
claims as tort claims.

                                             11
                                 No. 11-30050

exempt themselves from whatever state labor standards they disfavored.”);
Arceneaux, 2004 WL 574718, at *3 (“To hold otherwise would provide employers
and labor unions the opportunity to place broad terms such as ‘health and safety’
in a CBA in order to skirt liability under state law. This is not the purpose of
Section 301 preemption.”).
                                       III
      In conclusion, Dresser owed Appellants duties under the CBA and
simultaneously owed non-negotiable, independent duties under Louisiana tort
law. These duties formed the bases for two distinct types of claims—contract
and tort—either of which Appellants may have brought before the district court.
Appellants chose to sue in tort, without reference to the CBA, and their claims
may be adjudicated by sole resort to Louisiana tort law. Applying the Supreme
Court’s construction of § 301, the district court was without jurisdiction and
therefore erred in denying the motions to remand and in granting the motions
to dismiss. Accordingly, the judgment is REVERSED and REMANDED for
proceedings consistent with this ruling.




                                       12
