                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 05-1191



JAMES E. ALVEY, JR.; NICHOLAS T. APPLEGARTH;
RONALD BAKER; WILLIAM S. BEADLING; SCOTT T.
BEDORE; STEVEN E. BELL; SCOTT R. BURCHFIELD;
CARL E. CARPENTER; ROBERT CUSICK; DANIEL W.
EVANS;   MICHAEL   R.  FELSOCI;  DARRICK   J.
GRIFFITH; DONALD GRIFFITH; CLIFTON HORSTIN;
JAMES F. KNIGHT; MARC V. LAMBERTI; CAROL A.
LARKINS; BRIAN K. LEAS; CARLOS A. LEE; JAMES
P. LENGYEL; JAMES W. MAY; ERIC MECHLING; CARL
M. MICK, II; MICHAEL ALEX MITKO; HOWARD E.
OHLER; KAREN OLIVEIRA; ROBERT PULICE; RICHARD
PURKS; RONALD RICHARD; MICHAEL RINE; TODD M.
SIMS; SUSAN SMITH; H. MARK SWIGER; HOWARD
TOMES; RANDY URSO,

                                              Plaintiffs - Appellants,

           versus


BALL CORPORATION, a foreign corporation; DAVID
MAPLE,

                                               Defendants - Appellees.



Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp, Jr.,
District Judge. (CA-04-52-5)


Argued:   November 30, 2005                 Decided:   January 20, 2006


Before MICHAEL and DUNCAN, Circuit Judges, and Walter D. KELLEY,
Jr., United States District Judge for the Eastern District of
Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.


ARGUED: Michael James Florio, Clarksburg, West Virginia, for
Appellants. Charles C. Jackson, MORGAN, LEWIS & BOCKIUS, L.L.P.,
Chicago, Illinois, for Appellees. ON BRIEF: James J. Sellitti,
SELLITTI, NOGAY & MCCUNE, P.L.L.C., Weirton, West Virginia, for
Appellants.   Carole S. Katz, John S. Ferrer, MORGAN, LEWIS &
BOCKIUS, L.L.P., Chicago, Illinois; W. Keith Tipton, BALL
CORPORATION, Broomfield, Colorado, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                              - 2 -
PER CURIAM:

       Appellants, employees of a Ball Corporation ("Ball") metal

food       container   plant     in    Weirton,   West   Virginia     (collectively

"Alvey"),1 appeal from the district court's order denying their

motion to remand to state court and granting Ball's motion to

dismiss       their    civil    action    alleging    invasion   of    privacy   and

infliction of emotional distress arising from Ball's search of

their work lockers.            Appellants argue that, because the collective

bargaining agreement (the "CBA") contains no reference to locker

searches, adjudication of their state common law claims requires no

interpretation of that agreement.                 Consequently, they argue that

the district court erred in concluding that § 301 of the Labor

Management Relations Act of 1947, 29 U.S.C. § 185(a) ("the LMRA")

preempted their action.2              For the reasons that follow, we affirm.


       1
      James Alvey is the named plaintiff for the employees who
brought the present action against the Ball Corporation and David
Maple, the plant manager of the Weirton facility. For simplicity,
we refer to the Appellants as Alvey and the Appellees as Ball.
       2
      Alvey also argued before the district court and in his reply
brief and oral presentation before this court that the search of
his locker constituted a violation of a substantial West Virginia
public policy. He further maintained that such a public policy
constitutes the very type of nonnegotiable rights that this court
identified as being excepted from preemption in Clark v. Newport
News Shipbuilding & Dry Dock Co., 937 F.2d 934, 937 (4th Cir. 1991)
(quoting Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 212 (1985)).
We deem this argument waived because Alvey failed to raise it in
his initial brief before this court. Schlossberg v. Barney, 380
F.3d 174, 182 n.6 (4th Cir. 2004). Even if Alvey had not waived
the argument, we are persuaded by the district court's analysis
concluding that no clearly defined public policy concerning the
search of employee lockers exists in West Virginia.

                                          - 3 -
                                            I.

        As part of an investigation into allegations of widespread

sale and use of illegal drugs at the Weirton plant, Ball assigned

four plant management personnel to conduct a search of all of the

lockers in the facility.             Although Ball owned the lockers, they

were assigned to and secured by locks purchased by individual

employees. Prior to searching the lockers, Ball drafted a protocol

for the search and shared that protocol with representatives of the

Paper, Allied-Industrial, Chemical and Energy Workers International

Union    ("the    union"),     which    represents      the     employees.        Ball

personnel conducted the searches in the presence of the union

representatives.           A typical search involved cutting the lock

securing the locker, examining the contents, returning the contents

to the locker and issuing a Ball-supplied lock to secure the locker

once more.

        Following    the    locker    searches,       the   union     filed    several

grievances pursuant to the CBA, alleging that Ball changed existing

plant    policies     and    safety    rules     without    bargaining        with   or

notifying the union; the locker searches constituted an "illegal

search and seizure;" and the locker searches were unsanitary

because the individuals conducting the searches failed to change

their gloves following the search of each locker.                     Less than one

month    later,     Alvey   filed     the   present    action    in    state    court,

alleging that the locker searches constituted an invasion of


                                        - 4 -
privacy and intentional and/or reckless or negligent infliction of

emotional distress.

      Ball removed the case to the district court and filed a motion

to dismiss, maintaining that Alvey had failed to exhaust the

grievance and arbitration provisions as required by the CBA. Alvey

filed a memorandum in opposition to the motion to dismiss and a

motion to remand the case to the state court.            The district court

concluded that Alvey, in order to prevail on his claims, would have

to    prove    that    Ball's   actions    had   been   wrongful   under    the

circumstances, including the contractual circumstances created by

the CBA.      Therefore, resolution of those claims was substantially

dependent upon analysis of the terms of the CBA, resulting in

preemption by § 301 of the LMRA.          It further concluded that Alvey's

claims fell under the CBA grievance clause, requiring Alvey to

exhaust his remedies under the CBA before seeking judicial relief.

Accordingly, it denied Alvey's motion to remand and granted Ball's

motion to dismiss.

      We review the denial of a motion to remand to state court and

the   question    of    whether   a   plaintiff's   state   law    claims   are

preempted de novo.        Lontz v. Tharp, 413 F.3d 435, 439 (4th Cir.

2005).




                                      - 5 -
                                      II.

       Alvey argues that his claims are not preempted by § 301 of the

LMRA    because   adjudication   of    those   claims   does   not   require

interpretation of the CBA.       He points out that the CBA lacks any

reference to locker searches and argues that the grievance and

arbitration procedures in the CBA apply only to alleged violations

of the CBA.       Therefore, according to Alvey, because the CBA is

silent as to locker searches, its terms need not be interpreted and

have no preemptive effect in the present case.          We disagree.

       In reaching this conclusion, we are guided by the language of

our opinions emphasizing the breadth of the reach of § 301 of the

LMRA:

       Section 301 of the LMRA expresses a federal policy,
       mandated by Congress, that federal law be applied in
       addressing disputes arising out of labor contracts. In
       furtherance of the federal policy, when resolution of a
       state-law claim is substantially dependent upon analysis
       of the terms of an agreement made between the parties in
       a labor contract, the claim is preempted by federal law.
       Moreover, the contractual rights and obligations assumed
       by the parties in a collective-bargaining agreement
       extend beyond those expressly stated and include implied
       rights of reasonable performance and the duty to act in
       good faith. Consequently, deciding whether a party acted
       reasonably and in good faith in carrying out a right or
       obligation under the collective bargaining agreement
       requires   a   reference   to   the  contract   and   an
       interpretation of its provisions, thereby invoking § 301
       preemption.

Clark v. Newport News Shipbuilding & Dry Dock Co., 937 F.2d 934,

937 (4th Cir. 1991) (citations omitted) (internal quotation marks

omitted).


                                  - 6 -
     Alvey's argument against preemption is further foreclosed by

our holding in McCormick v. AT&T Tech., Inc., 934 F.2d 531 (1991).

In McCormick, an employee filed a complaint against his former

employer, "alleging that under Virginia tort law the [former

employer's] actions in disposing of the contents of his [work]

locker constituted intentional infliction of emotional distress,

negligent    infliction   of    emotional   distress,   conversion,     and

negligence in the care of a bailment." Id. at 533.           Following the

analysis of the Supreme Court in Lingle v. Norge Div. of Magic

Chef, Inc., 486 U.S. 399, 406-10 (1988), we concluded that the

employee's state law claims were preempted by § 301 of the LMRA

because    their   resolution    required   interpretation    of   a   CBA.

McCormick, 934 F.2d at 535-37.

     The analysis and holding of McCormick are directly applicable

here.3    As was the case in McCormick, an allegation of some sort of

wrongful conduct is a necessary element of each of Alvey's causes

of action.     Invasion of privacy, in the context of the present



     3
      When asked, at oral argument, to distinguish McCormick,
Alvey's counsel contended that "West Virginia law, unlike Virginia
law, which was at issue in McCormick, creates a non-negotiable
right against employer-issued lockers, secured by locks provided by
the employees, from being broken into essentially by the employer."
We addressed this contention in footnote 2.
     Counsel further argued that the CBA in McCormick contained a
statement that "all disputes between the parties must be submitted
to the grievance process," whereas, in the CBA at issue here, "the
term grievance is narrowly defined to include only claims of
violation of the agreement." We find no reference in McCormick to
CBA language that supports the distinction counsel seeks to draw.

                                  - 7 -
case, requires an "unreasonable intrusion upon the seclusion of

another."      Rohrbaugh v. Wal-Mart Stores, 212 W. Va. 358, 364 (W.

Va.   2002).      Intentional    or   reckless   infliction   of   emotional

distress, which is synonymous with the tort of outrage in West

Virginia, requires conduct on the part of the defendant that is

"atrocious, intolerable, and so extreme and outrageous as to exceed

the bounds of decency."         Williamson v. Harden, 214 W. Va. 77, 81

(W. Va. 2003). Negligent infliction of emotional distress requires

negligence on the part of the defendant.           See Heldreth v. Marrs,

188 W. Va. 481, 485 (W. Va. 1992).        Moreover, West Virginia follows

the general rule that the plaintiff bears the burden of proof in a

tort action.     Miller v. United Fuel Gas Co., 88 W. Va. 82, 91 (W.

Va. 1921).

      Whether Ball's actions in searching the lockers were wrongful-

-either unreasonable, outrageous or negligent--cannot be determined

in a vacuum.     Rather, that determination requires a consideration

of the context in which the actions occurred, which necessarily

includes the contractual circumstances embodied in the CBA.             Our

comments     concerning   management's        action   in   McCormick    are

particularly pertinent:

      [Management's action] is not a matter of intrinsic moral
      import but a question of legal authority --whether
      management had the lawful right to proceed as it did.
      The rightness or wrongness of the action has not been
      committed to the common law of tort, but to the legal
      arrangements embodied in a contractual agreement, in this
      case through collective bargaining. State tort claims
      are preempted where reference to a collective bargaining

                                      - 8 -
     agreement is necessary to determine whether a "duty of
     care" exists or to define "the nature and scope of that
     duty, that is, whether, and to what extent, the
     [employer's]   duty   extended    to   the   particular
     responsibilities alleged by [the employee] in h[is]
     complaint." Whether the actions of management personnel
     . . . were in any way wrongful simply cannot be
     determined without examining the collective bargaining
     agreement to ascertain the extent of any duty [the
     company] may have owed [the plaintiff].

McCormick, 934 F.2d at 536 (quoting IBEW, AFL-CIO v. Hechler, 481

U.S. 851, 862 (1987)) (citation omitted).

     In McCormick, we also addressed Alvey's argument that the lack

of a specific reference in a CBA to the activity at issue in a

state tort claim precludes preemption:

          Although management's rights and responsibilities
     regarding employee lockers are not explicitly delineated
     in the agreement, a collective bargaining agreement "is
     more than a contract; it is a generalized code to govern
     a myriad of cases which the draftsmen cannot wholly
     anticipate." United Steelworkers of America v. Warrior
     & Gulf Navigation Co., 363 U.S. 574, 578 (1960). . . .

          . . . The specifics as to management conduct
     regarding the lockers . . . need not be spelled out in
     all their detail and refinement for the collective
     bargaining agreement to be applicable.       Rather, the
     collective bargaining agreement consists, in addition to
     its express provisions, of an "industrial common law
     --the practices of the industry and the shop-- [which] is
     equally a part of the collective bargaining agreement
     although not expressed in it." United Steelworkers, 363
     U.S. at 581-82. "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. . . . The governmental nature of the
     collective-bargaining process demand[s] a common law of
     the shop which implements and furnishes the context of
     the agreement."   Id. at 579 (quoting Cox, Reflections
     Upon Labor Arbitration, 72 Harv. L. Rev. 1482, 1498-99
     (1959)). Thus, the agreement creates in employees and
     their employers implied rights and duties, the contours

                              - 9 -
     of   which   are   a   matter   "of   federal    contract
     interpretation." Allis-Chalmers Corp. [v. Lueck], 471
     U.S. [202, 215 (1985)].     Here, interpretation of the
     collective bargaining agreement is essential to determine
     whether and to what extent [the company] owed [the
     plaintiff] a duty concerning his work locker.          If
     management owed him no duty and was entitled under the
     agreement to [take the actions that] it did, its actions
     ipso facto could not have been wrongful under state law.

McCormick, 934 F.2d at 536-537 (emphasis added).

     As was the case in McCormick, the CBA between Ball and the

union contains several general provisions relevant to resolution of

Alvey's complaints.   In Article 4 of the CBA, "[Ball] retains the

right to manage its business, to make all decisions, and to take

whatever action it deems necessary in connection therewith, subject

to the provisions of [the CBA]." Articles 15 and 21, respectively,

state Ball's objective to "eliminate actual or potential health

hazards" and "policy to provide a workplace free from the adverse

effects of substance abuse."     Although these provisions do not

reference locker searches specifically, they do invest certain

rights in and impose certain duties on Ball.   Whether the actions

of which Alvey complains fall within the scope of those rights and

duties necessarily requires interpretation of the CBA, and thereby

results in preemption of Alvey's state law tort claims by § 301 of

the LMRA.

     Accordingly, the judgment of the district court is

                                                          AFFIRMED.




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