Phillips v. Babcock & Wilcox, supra, 349 Pa. Super. at 353-355.
The Phillips case makes it clear that a Pennsylvania tort action for wrongful discharge is available only when the employment relationship is at will, and directs a union employee to the protections afforded him under the grievance procedure of the collective bargaining agreement to remedy any wrongs.
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 must either be treated as a § 301 claim or dismissed as preempted by federal labor-contract law. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 85 L. Ed. 2d 206, 105 S. Ct. 1904 (1985).
As such, § 301 of the National Labor Relations Act, 29 U.S.C. § 185, provides the exclusive remedy where a Pennsylvania employer wrongfully discharges a union employee against public policy, and Pennsylvania state tort claims of this sort are preempted by this section. Additionally, each of the claims arising out of and relating to the circumstances surrounding the Plaintiff's discharge are similarly preempted by § 301 of the Labor Management and Relations Act. Thus, Plaintiff allegations that he suffered severe emotional distress as a result of his termination and was slandered by statements made by Defendant's agents against him during the events surrounding his discharge are necessarily preempted by § 301 as they all relate to and are inextricably intertwined with the question of whether the Defendant properly discharged the Plaintiff. See Farmer v. Carpenter Local 25, 430 U.S. 290, 97 S. Ct. 1056, 51 L. Ed. 2d 338 (1977); Peoples v. Pa. Power & Light Company, 638 F. Supp. 402 (M.D.Pa. 1985); Seid v. Pacific Bell, Inc., 635 F. Supp. 906 (S.D. Cal. 1985).
In our having made this finding, the Supreme Court in Allis-Chalmers, supra, directs us to either dismiss the complaint as preempted by § 301 or to recharacterize this action as a § 301 claim.
Generally, no employee protected by a collective bargaining agreement can sue the employer except after pursuing his grievance remedies under the contract, and either obtaining successful judicial review of the arbitration award, or establishing that his right of fair representation was violated. See Costello v. United Parcel Service, Inc., 617 F. Supp. 123 (E.D.Pa. 1984). In the instant case, the Plaintiff makes it clear in his brief in opposition to the Defendant's motion that he has averred no distinct violation of the collective bargaining agreement. The Plaintiff has seemingly closed the door to this Court allowing the case to proceed as a claim under § 301 by asserting that his tort claims are distinct and have nothing to do with the collective bargaining agreement.
Even were we to recharacterize the Plaintiff's claims as § 301 claim, we agree with the Defendants that we would be required to dismiss the Plaintiff's claims. As the Court held in Krushinski v. Roadway Express, Inc., 627 F. Supp. 934, 938 (M.D. Pa. 1985), an employee protected by a collective bargaining agreement may sue his employer only after he has pursued the grievance remedies provided by the contract, and he establishes that his right of fair representation was violated. See also Vosch v. Werner Continental, Inc., 734 F.2d 149 (3d Cir. 1984). In the instant case, Plaintiff never alleges in his complaint that the union to fail to properly prosecute a grievance on his behalf, nor has the Plaintiff even alleged that he pursued the grievance remedies set forth in the collective bargaining agreement.
In light of the foregoing, the Defendant's motion to dismiss the complaint will be granted. An appropriate Order follows,
NOW, this 5th day of November, 1987, in consideration of the foregoing Memorandum, IT IS HEREBY ORDERED as follows:
1. Defendant's motion to dismiss is granted.
2. Judgment is hereby entered in favor of the Defendant and against the Plaintiff.
3. The Clerk of Courts is directed to close this case.