                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                        March 29, 2016
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
MINA ORTEGA,

      Plaintiff - Appellant,

v.                                                         No. 15-2098
                                              (D.C. No. 1:14-CV-00628-MCA-SCY)
NEW MEXICO LEGAL AID, INC.; ED                              (D. N.M.)
MARKS, individually and as Director of
New Mexico Legal Aid, Inc.; SIEMPRE
UNIDOS EN PROGRESO, a Unit of
National Organization of Legal Services
Workers (“NOLSW”)/UAW LOCAL 2320
INTERNATIONAL UNITED AUTO
WORKERS, AFL-CIO; DONIS BORKS,
individually and as Union Organizer;
ALICIA CLARK, individually and as
Grievance Chair for Siempre Unidos en
Progreso,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, LUCERO, and McHUGH, Circuit Judges.
                   _________________________________




      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Mina Ortega appeals from the district court’s Fed. R. Civ. P. 12(b)(6)

dismissal of her breach-of-contract suit for failure to exhaust the grievance procedure

in the collective bargaining agreement (CBA) underlying her claims. She also

appeals from the denial of her motion to remand to state court. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

                                     Background

      Ms. Ortega worked as a staff attorney at New Mexico Legal Aid, Inc. (the

Employer) from October 2008 until the Executive Director discharged her for gross

misconduct in January 2014. She was a member of the bargaining unit represented

by Siempre Unidos en Progreso, a Unit of National Organization of Legal Services

Workers (NOLSW)/UAW Local 2320 International United Auto Workers, AFL-CIO

(the Union). The Employer and the Union are parties to a CBA.

      The CBA provides that disciplinary decisions are subject to a grievance

procedure. Section 6.9 of the CBA states that grievances “shall” proceed according

to a five-step grievance procedure, which starts at Step 2 (a formal written

grievance) for a discharge. The next step is a formal written appeal to the Executive

Director. If the grievance remains unresolved, the Union and the Employer may then

mutually agree to mediation. But if they decline to mediate and the Union wishes to

pursue the grievance, the parties must proceed to binding arbitration.1


      1
        In § 5.7c, part of the “gross misconduct” section, the CBA provides for an
immediate resort to mediation with regard to a discharge decision by the Executive
Director. Before this court, the Employer appears to have abandoned its earlier
position that § 5.7c provides the only process to challenge Ms. Ortega’s discharge.
                                           2
      The Union filed a grievance protesting Ms. Ortega’s discharge. But

Ms. Ortega was not convinced she was required to use the grievance process, because

§ 6.2c of the CBA, also in the grievance section, provides that “[n]othing contained

herein shall limit or otherwise exclude any grievant from seeking redress from any

government agency, regulatory body or court of law.” R. at 407. Further, she was

not satisfied with the Union’s representation. Particularly, the Union rejected a

limited release of information she had drafted, and instead required Ms. Ortega to

sign an unrestricted release permitting the Union complete access to Ms. Ortega’s

employment file under threat of dropping the grievance. And when the process

reached Step 4, the Employer and the Union scheduled the mediation on a day when

she was not available.

      Just before the scheduled mediation, Ms. Ortega filed a lawsuit against the

Employer and the Union in New Mexico state court.2 She alleged that the Employer

had wrongfully terminated her employment and breached the CBA, and she sought a

declaratory judgment as to the Employer’s and the Union’s actions during the

grievance proceedings. She also filed a motion to stay the mediation. The Employer

and the Union suspended the mediation pending the suit.

      The Employer, with the Union’s consent, removed the suit to federal court.

Ms. Ortega filed an amended complaint, reiterating her claims against the Employer

Ultimately, however, it is immaterial to this appeal which grievance procedure
applies; both involve mediation, which was not completed in this case.
       2
         The suit also named certain individuals as defendants, but because their
presence does not affect the resolution of this appeal, for ease of discussion we focus
on the Employer and the Union.
                                           3
and adding a claim that the Union breached its duty of fair representation. She also

filed a motion to remand the case to state court. Both the Employer and the Union

moved to dismiss under Rule 12(b)(6), which Ms. Ortega opposed. The district court

accepted the defendants’ arguments that Ms. Ortega’s state-law claims were

preempted by § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, and

that she was required to exhaust the grievance procedure in the CBA before

proceeding in court. It granted the Rule 12(b)(6) motions, denied the motion to

remand, and denied the motion to stay the mediation.

      Ms. Ortega filed a timely Fed. R. Civ. P. 59(e) motion to alter or amend the

judgment, which the district court also denied. Ms. Ortega then filed a timely notice

of appeal.

                                      Discussion

      On appeal, Ms. Ortega challenges the denial of her motion to remand and the

Rule 12(b)(6) dismissal of her amended complaint. We review both of these issues

de novo. Garley v. Sandia Corp., 236 F.3d 1200, 1206-07 (10th Cir. 2001).

I.    Motion to Remand

      For purposes of remand, the relevant pleading is the complaint in effect at the

time of removal. Salzer v. SSM Health Care of Okla. Inc., 762 F.3d 1130, 1133

(10th Cir. 2014). Here that was the original complaint, in which Ms. Ortega pleaded

that the Employer terminated her employment in violation of the CBA.

      “Section 301 of the Labor Management Relations Act . . . provides for suits in

the district courts for violation of collective-bargaining contracts between labor

                                           4
organizations and employers without regard to the amount in controversy.” Hines v.

Anchor Motor Freight, Inc., 424 U.S. 554, 561 (1976). “Section 301 contemplates

suits by and against individual employees as well as between unions and employers;

and . . . § 301 suits encompass those seeking to vindicate uniquely personal rights of

employees such as . . . wrongful discharge.” Id. at 562 (internal quotation marks

omitted). It is well established that, by virtue of the complete pre-emption doctrine,

claims alleging a breach of a CBA are considered to arise under § 301 even if they

ostensibly are pleaded as state-law claims. See Caterpillar Inc. v. Williams, 482 U.S.

386, 394 (1987) (holding pre-empted “claims founded directly on rights created by

collective-bargaining agreements, and also claims substantially dependent on analysis

of a collective-bargaining agreement” (internal quotation marks omitted)); Cisneros

v. ABC Rail Corp., 217 F.3d 1299, 1304 (10th Cir. 2000) (recognizing that claims

pleaded under state law were “properly characterized” as “founded directly on rights

created by [a] collective-bargaining agreement,” creating jurisdiction under § 301

(brackets and internal quotation marks omitted)).

      Under 28 U.S.C. § 1441(a), a defendant may remove to the district court any

civil action over which the district court has original jurisdiction, which includes all

civil actions arising under federal law, see id. § 1331. Because Ms. Ortega’s claims

against the Employer alleged a violation of the CBA and therefore are considered to

arise under § 301, the defendants had the option to remove this suit to federal court.

See Caterpillar, 482 U.S. at 399 (“When a plaintiff invokes a right created by a



                                            5
collective-bargaining agreement, the plaintiff has chosen to plead what we have held

must be regarded as a federal claim, and removal is at the defendant’s option.”).

      Ms. Ortega argues that § 6.2c of the CBA provides that she may proceed in

any court, and she refers to language from Republic Steel Corp. v. Maddox, 379 U.S.

650, 657-58 (1965), indicating that a state-court suit may proceed if a CBA does not

contain an exclusive grievance procedure. These arguments are misplaced. Even

assuming Ms. Ortega properly filed her lawsuit in state court without exhausting the

CBA’s grievance procedure (a proposition that we reject below), nothing in the CBA

or Maddox requires that the suit remain in state court, notwithstanding defendants’

federal statutory right to remove.

      Ms. Ortega also argues that hybrid actions (suits combining a § 301 claim

against an employer and a breach of duty of fair representation (DFR) claim against a

union) are not pre-empted. This contention is irrelevant because Ms. Ortega did not

plead a DFR claim in her original complaint, which is the operative pleading for

purposes of removability. But in any event, it appears that Ms. Ortega is confusing

the doctrines of (1) complete pre-emption of state law by federal law and

(2) pre-emption of judicial jurisdiction where a claim is within the jurisdiction of the

National Labor Relations Board. In Vaca v. Sipes, upon which she relies, the

Supreme Court confirmed that the courts retain jurisdiction over a hybrid suit.

386 U.S. 171, 186-87 (1967). The Court did not hold that a hybrid action cannot be

removed from state court to federal court. Vaca, in fact, recognized that in a hybrid



                                           6
suit, the claims against an employer remain § 301 claims. See id. at 187. And as

discussed, § 301 claims create federal jurisdiction.

II.   Motion to Dismiss

      “[Section] 301 expresses a federal policy that the substantive law to apply in

§ 301 cases is federal law, which the courts must fashion from the policy of our

national labor laws.” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 209 (1985)

(internal quotation marks omitted). “[I]ssues raised in suits of a kind covered by

§ 301 are to be decided according to the precepts of federal labor policy.” Id.

(brackets and internal quotation marks omitted).

      The Supreme Court has explained that a CBA “is more than a contract; it is a

generalized code to govern a myriad of cases which the draftsmen cannot wholly

anticipate” and “an effort to erect a system of industrial self-government.” United

Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 578, 580

(1960). CBAs commonly contain grievance procedures, which the Court has

emphasized are “[a] major factor in achieving industrial peace” and lie “at the very

heart of the system of industrial self-government.” Id. at 578, 581.

      In Republic Steel Corp. v. Maddox, the Supreme Court recognized that in the

labor context, “Congress has expressly approved contract grievance procedures as a

preferred method for settling disputes and stabilizing the ‘common law’ of the plant.”

379 U.S. at 653. Accordingly, Maddox held:

             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

                                            7
      upon by employer and union as the mode of redress. If the union refuses to
      press or only perfunctorily presses the individual’s claim, differences may
      arise as to the forms of redress then available. But unless the contract
      provides otherwise, there can be no doubt that the employee must afford the
      union the opportunity to act on his behalf.
Id. at 652-53 (footnotes and citations omitted).

      Maddox, however, also held that “[t]he federal rule would not of course

preclude [a] court suit if the parties to the collective bargaining agreement expressly

agreed that arbitration was not the exclusive remedy.” Id. at 657-58. In this regard,

the language must “reveal a clear understanding between the contracting parties that

individual employees, unlike either the union or the employer, are free to avoid the

contract procedure . . . in favor of a judicial suit. Any doubts must be resolved

against such an interpretation.” Id. at 658-59.

      Pointing to § 6.2c of the CBA—“[n]othing contained herein shall limit or

otherwise exclude any grievant from seeking redress from any government agency,

regulatory body or court of law”—Ms. Ortega argues that the exhaustion requirement

is inapplicable because the parties have expressly agreed that the grievance procedure

was not her exclusive remedy. The Union counters that § 6.2c is not intended to

provide an alternative remedy for grieveable claims such as wrongful discharge;

instead, it is intended to preserve an employee’s right to bring suit on claims that do

not arise under the CBA, such as discrimination claims. Cf. 14 Penn Plaza LLC v.

Pyett, 556 U.S. 247, 260 (2009) (requiring arbitration of a discrimination claim

expressly made subject to a grievance procedure). The Employer primarily relies on

Maddox’s requirement of an express agreement that particular matters are not subject

                                           8
to the grievance procedure and directive that doubts must be resolved in favor of the

grievance procedure. See Maddox, 379 U.S. at 657-59.

      Ms. Ortega’s claim for wrongful discharge lies squarely within those matters

that are “the business of certified or recognized bargaining agents.” Hines, 424 U.S.

at 563. And we cannot read § 6.2c in insolation. See Warrior & Gulf Navigation

Co., 363 U.S. at 579 (“There are too many people, too many problems, too many

unforeseeable contingencies to make the words of the contract the exclusive source

of rights and duties.” (internal quotation marks omitted)). Read as part of the entirety

of Articles 5 and 6 of the CBA and against the backdrop of well-established

principles of federal labor law, at best § 6.2c may create some doubt about the reach

of the CBA’s grievance procedure. But as the Employer urges, if a court has “[a]ny

doubts” about whether a dispute is subject to the grievance procedure, those “doubts

must be resolved against such an interpretation.” Maddox, 379 U.S. at 659; see also

Warrior & Gulf Navigation Co., 363 U.S. at 582-85 (narrowly construing exception

to grievance procedure and stating that “[d]oubts should be resolved in favor of

coverage”). We therefore conclude that § 6.2c does not allow Ms. Ortega to proceed

directly to court with her wrongful-discharge and breach-of-contract claims without

exhausting the CBA’s grievance procedure.

      Ms. Ortega alternatively argues that she satisfies an exception to Maddox’s

exhaustion requirement because the union has breached its duty of fair

representation. In the event of such a breach, an employee will not be compelled to



                                           9
exhaust an otherwise applicable grievance procedure. See Vaca, 386 U.S. at 185. As

this court has stated:

       If the union is fairly representing the employee, the employee’s interests are
       adequately protected. As the ‘fairness’ of the union’s representation
       decreases, however, so does the employee’s protection and the justification
       for the exhaustion bar. Thus, if the union refuses to press or only
       perfunctorily presses the individual’s claim, or otherwise acts arbitrarily,
       discriminatorily, or in bad faith, then the union has breached its duty of fair
       representation and the employee is entitled to sue under section 301.
United Food & Commercial Workers, Local Union No. 7R v. Safeway Stores, Inc.,

889 F.2d 940, 945 (10th Cir. 1989) (citations and internal quotation marks omitted).

       To establish that the Union breached its duty of fair representation, Ms. Ortega

must prove “[s]ome conduct by the worker’s union that breached the duty of fair

representation” and “[a] causal connection showing that the union’s breach affected

the integrity of the arbitration process.” Webb v. ABF Freight Sys., Inc., 155 F.3d

1230, 1239 (10th Cir. 1998). Ms. Ortega complains that the Union “is just going

through the motions” and “only perfunctorily pressing [her] claim,” Aplt. Br. at 18,

which may qualify as a breach, see Webb, 155 F.3d at 1239-40.

       But equally important is that the breach must seriously undermine the integrity

of the grievance process. See Hines, 424 U.S. at 567; Webb, 155 F.3d at 1242. As

the district court recognized, at this point Ms. Ortega cannot show this element.

“[W]hen a union represents an employee throughout a grievance procedure, a claim

challenging the adequacy of that union’s representation normally does not accrue

until the dispute resolution process has been completely exhausted.” Lucas v.

Mountain States Tel. & Tel., 909 F.2d 419, 421 (10th Cir. 1990) (per curiam). The

                                             10
Union and the Employer were in the midst of the grievance process when

Ms. Ortega’s suit interrupted it. Ms. Ortega cannot complain that the Union

“seriously undermined” the uncompleted mediation or some future arbitration, as the

results are not yet known. Her fears about how the Union might act (or not act)

during the grievance proceeding are insufficient to proceed with a hybrid suit based

on a DFR claim against the Union at this time.

                                     Conclusion

      The district court did not err in denying the motion to remand or in granting

the motions to dismiss under Rule 12(b)(6). The judgment is affirmed.


                                           Entered for the Court


                                           Carolyn B. McHugh
                                           Circuit Judge




                                         11
