Bryce Markham v. Tony Wertin

United States Court of Appeals
For the Eighth Circuit
___________________________

No. 16-2012
___________________________

Bryce Markham

lllllllllllllllllllll Plaintiff - Appellant

v.

Tony Wertin

lllllllllllllllllllll Defendant - Appellee
____________

Appeal from United States District Court
for the Western District of Missouri - St. Joseph
____________

Submitted: November 15, 2016
Filed: June 29, 2017
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Before RILEY,1 Chief Judge, WOLLMAN and KELLY, Circuit Judges.
____________

WOLLMAN, Circuit Judge.

Bryce Markham filed a petition in Missouri state court against the International
Brotherhood of Electrical Workers Local 545 (Local 545) and Tony Wertin, alleging

1
The Honorable William Jay Riley stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 10,
2017. He has been succeeded by the Honorable Lavenski R. Smith.
that Local 545 had violated the Missouri Human Rights Act (MHRA) by failing to
accommodate Markham’s disability, by discriminating against him based on his
disability, and by retaliating against him for reporting his disability and seeking
accommodation. The petition further alleged that Wertin had aided and abetted Local
545’s discriminatory and retaliatory conduct. Local 545 removed the action to federal
district court and thereafter moved to dismiss. Markham moved to remand the case
and to amend the petition. The district court determined that Markham’s claims were
completely preempted under § 301(a) of the Labor Management Relations Act of
1947 (LMRA), 29 U.S.C. § 185(a), and § 9(a) of the National Labor Relations Act
(NLRA), 29 U.S.C. § 159(a), and that the statute of limitations had expired on those
federal claims. The district court thus denied Markham’s motion to remand and his
motion to amend the petition and granted Local 545’s motion to dismiss. Markham
appeals from the dismissal of his aiding-and-abetting claim against Wertin, the denial
of his motion to remand, and the denial of his motion for leave to amend. We reverse
and remand.

I. Background

Local 545 offers a joint apprenticeship and training program. Participants must
complete the program before they can become journeymen or be eligible for full union
representation. Markham alleged that Wertin was the supervisor of the apprenticeship
and training program and an authorized agent of Local 545. According to Markham,
Wertin and members of the Joint Apprenticeship and Training Committee (JATC)
assign apprentices to various companies for on-the-job training.

Markham enrolled in the apprenticeship and training program in 2008. In May
2013, he lost consciousness while on a lunch break during an on-the-job training
assignment. Markham returned to work later that day, but he called in sick the next
day. Wertin thereafter informed Markham that he had been terminated from the

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assignment and instructed Markham to submit a doctor’s note documenting the reason
for his absence, which Markham did.

Markham suffers from Crohn’s Disease. His doctor’s note indicated that
Markham had tested positive for tetrahydrocannabinol (THC), the active compound
in marijuana, but also explained that Markham had been prescribed a legal synthetic
version of THC to treat his Crohn’s Disease. A urinalysis indicated no presence of
marijuana in Markham’s system.

Markham was placed on probation on June 11, 2013. He was told that the
reason for the probation was that two companies had terminated his on-the-job
training assignments “for cause,” but he was not told what the cause was. Markham
expressed to Wertin his belief that he had been placed on probation because of his
illness. Thereafter, Markham was not assigned to any on-the-job training until
January 2014, and even then his training opportunities were “drastically reduced
compared to other members of the Program, including those with fewer hours
completed.” Compl. ¶ 39. Moreover, when he was given on-the-job training
assignments, “it was for very small jobs, or for jobs that did not provide actual
training, but rather relegated [Markham] to doing menial work for others.” Id. ¶ 40.
On at least one occasion, Markham was unavailable for an assignment because he was
not given adequate notice.

Markham was unable to accrue on-the-job training hours as quickly as his
peers. The JATC removed Markham from the program on June 9, 2014, before he had
completed it and “at the suggestion and/or direction of Wertin.” Id. ¶ 44. Although
Markham attended two union meetings in attempts to appeal his dismissal, he was
never readmitted to the apprenticeship and training program.

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 Markham filed a petition in the Circuit Court of Buchanan County, Missouri,
alleging the four counts mentioned above. Markham alleged that Wertin aided and
abetted Local 545’s acts of discrimination and retaliation, claiming that:

[Markham’s] disability, report of his disability, and his request for
accommodation for his disability were all at least a contributing factor
in Defendant Wertin’s aiding, abetting, compelling, and coercion of
Defendant IBEW to fail to place [Markham] for on-the-job training, to
terminate [Markham’s] participation in the Program, and to fail to re-
admit [Markham] to the program.

Id. ¶ 102.

After removing the action to federal district court, Local 545 moved to dismiss
the action, submitting in support of the motion the relevant collective bargaining
agreement (CBA) and the statement of policies for apprentices, which Local 545
maintained was incorporated by reference into the CBA. Wertin answered the
petition, denied the allegations that he aided and abetted any violation of Markham’s
rights, and later filed a brief in support of removal and dismissal of Markham’s
lawsuit. Markham moved to remand the case to state court and later sought leave to
amend the petition.

The CBA at issue in this case includes a section regarding the apprenticeship
and training program. Article 5 of the CBA sets forth the terms, conditions, and
responsibilities of the JATC, which is “responsible for the training of apprentices.”
The JATC has “full authority for issuing all job training assignments and for
transferring apprentices from one employer to another.” Article 5 states that, if the
JATC is unable to resolve any issue concerning an apprentice or an apprenticeship
matter, the matter is referred to the Labor-Management Committee for resolution
pursuant to the grievance procedure set forth in a different section of the CBA.
Article 5 further provides that “[a]n apprentice may have their indenture canceled by

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the JATC at any time prior to completion as stipulated in the registered standards” and
that individuals terminated from the program shall not receive assignments “unless
they are reinstated in apprenticeship as per the standards.”

Those standards set forth a non-exhaustive list of “causes for which the [JATC]
has the authority to cancel the agreement of an apprentice.” The standards also
explain that each apprentice is indentured to the JATC, that the JATC is responsible
for placing apprentices with employers, that the training director issues the assignment
for work, and that the JATC has “full power to act on all matters pertaining to
transferring apprentices from one job or shop to another.” Specifically, an apprentice
is assigned to a contractor and remains with the contractor until the apprentice is laid
off by the contractor or removed by the JATC. Thereafter, the training director
assigns the apprentice to another contractor according to the availability of work. The
standards include the JATC’s substance abuse testing policy and the length of an
apprentice’s probationary period.

The district court concluded that Markham’s claims implicated the CBA and
the accompanying standards for apprentices. “[Markham] would necessarily need to
establish, inter alia, that he met certain qualifications, address whether reasonable
accommodations could be made pursuant to these agreements, and whether probation
was reasonable. In short, the Court necessarily would be required to refer to and
interpret these documents to determine what actions, if any, Defendant Union could
take as to [Markham].” D. Ct. Order of March 29, 2016, at 10. The district court
determined that Markham’s claims were substantially dependent upon an analysis of
the CBA and thus were completely preempted by § 301(a) of the LMRA. In addition,
the district court concluded that Markham’s claims of discrimination were completely
preempted by § 9(a) of the NLRA because they were, in effect, claims of breach of
Local 545’s duty of fair representation. Because Markham’s claims constituted “a
hybrid § 301/duty of fair representation action,” the district court dismissed the suit

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as barred by the six-month statute of limitations that applies to such claims and denied
as futile Markham’s motion for leave to amend. Id. at 14.

II. Discussion

A defendant may remove a civil action from state to federal court only if the
action originally could have been filed in federal district court. See 28 U.S.C.
§ 1441(a). “Absent diversity of citizenship, federal-question jurisdiction is required.”
Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). “The presence or absence of
federal-question jurisdiction is governed by the ‘well-pleaded complaint rule,’ which
provides that federal jurisdiction exists only when a federal question is presented on
the face of the plaintiff’s properly pleaded complaint.” Id. It is well settled “that a
case may not be removed to federal court on the basis of a federal defense, including
the defense of pre-emption.” Id. at 393.

Congress, however, “may so completely pre-empt a particular area that any civil
complaint raising this select group of claims is necessarily federal in character.”
Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64 (1987). “Once an area of state law
has been completely pre-empted, any claim purportedly based on that pre-empted state
law is considered, from its inception, a federal claim, and therefore arises under
federal law.” Williams, 482 U.S. at 393. This “complete pre-emption corollary to the
well-pleaded complaint rule is applied primarily in cases raising claims pre-empted
by § 301 of the LMRA.” Id.; see Taylor, 481 U.S. at 64 (noting that “[f]or 20 years,
this Court has singled out claims pre-empted by § 301 of the LMRA for such special
treatment”). Our court has not decided whether § 9(a) of the NLRA completely
preempts state-law discrimination claims, although we have suggested that it does not.
Maegdlin v. Int’l Ass’n of Machinists & Aerospace Workers, Dist. 949, 309 F.3d
1051, 1053 (8th Cir. 2002); see also Johnson v. MFA Petroleum Co., 701 F.3d 243,
248 (8th Cir. 2012) (listing the areas of “special federal interest” in which the
Supreme Court and this court have found complete preemption).

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 Markham argues that the district court erred in concluding that his aiding-and-
abetting claim was completely preempted by § 301(a) of the LMRA and by § 9(a) of
the NLRA. He contends that the claim must be remanded to state court because the
federal district court did not have jurisdiction over this state-law claim between
nondiverse parties.

A. Complete Preemption Under § 301(a) of the LMRA

Section 301(a) provides that “[s]uits 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.” 29 U.S.C. § 185(a). The Supreme Court has said that
§ 301(a) is “more than jurisdictional,” however, in that it “authorizes federal courts
to fashion a body of federal law for the enforcement of these collective bargaining
agreements.” Textile Workers Union of Am. v. Lincoln Mills of Ala., 353 U.S. 448,
451 (1957).

[T]he subject matter of section 301(a) is peculiarly one that calls for
uniform law. The possibility that individual contract terms might have
different meanings under state and federal law would inevitably exert a
disruptive influence upon both the negotiation and administration of
collective agreements. . . . [W]e cannot but conclude that in enacting
§ 301 Congress intended doctrines of federal labor law uniformly to
prevail over inconsistent local rules.

Local 174, Teamsters, Chauffeurs, Warehousemen & Helpers of Am. v. Lucas Flour
Co., 369 U.S. 95, 103-04 (1962) (internal quotation marks and citations omitted).
Accordingly, “[s]ection 301 governs claims founded directly on rights created by
collective-bargaining agreements, and also claims ‘substantially dependent on analysis
of a collective-bargaining agreement.’” Williams, 482 U.S. at 394 (quoting Int’l Bhd.
of Elec. Workers, AFL-CIO v. Hechler, 481 U.S. 851, 859 n.3 (1987)).

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 The dispute in this case is whether Markham’s aiding-and-abetting claim
against Wertin is substantially dependent on analysis of the CBA, for if a state-law
claim is “inextricably intertwined with consideration of the terms of the labor
contract,” it is preempted. See Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213
(1985) (“If the state tort law purports to define the meaning of the contract
relationship, that law is preempted.”). The Supreme Court has “underscored the
point[, however,] that § 301 cannot be read broadly to pre-empt nonnegotiable rights
conferred on individual employees as a matter of state law, and [the Court has]
stressed that it is the legal character of a claim, as ‘independent’ of rights under the
collective-bargaining agreement . . . that decides whether a state cause of action may
go forward.” Livadas v. Bradshaw, 512 U.S. 107, 123-24 (1994) (internal citations
omitted) (citing Lueck, 471 U.S. at 213; Lingle v. Norge Div. of Magic Chef, Inc., 486
U.S. 399, 410 (1988)). “[W]hen the meaning of contract terms is not the subject of
dispute,” mere reference to or consultation of a CBA “plainly does not require the
claim to be extinguished.” Id. at 124 (citing Lingle, 486 U.S. at 413 n.12). Thus, we
have said that “the claim must require the interpretation of some specific provision of
a CBA; it is not enough that the events in question took place in the workplace or that
a CBA creates rights and duties similar or identical to those on which the state-law
claim is based.” Meyer v. Schnucks Markets, Inc., 163 F.3d 1048, 1051 (8th Cir.
1998).

We begin our analysis by considering Markham’s aiding-and-abetting claim
against Wertin. See Trs. of Twin City Bricklayers Fringe Benefit Funds v. Superior
Waterproofing, Inc., 450 F.3d 324, 331 (8th Cir. 2006) (“The proper starting point for
determining whether interpretation of a CBA is required in order to resolve a
particular state law claim is an examination of the claim itself.”). Under section
213.070(1) of the Missouri Revised Statutes, it is an unlawful discriminatory practice
“[t]o aid, abet, incite, compel, or coerce the commission of acts prohibited under this
chapter.” See Bradley v. Ray, 904 S.W.2d 302, 315 (Mo. Ct. App. 1995) (explaining
that the tort of aiding and abetting requires that “the defendant must affirmatively act

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to aid the primary tortfeasor”); cf. State v. Clark, 596 S.W.2d 747, 751 (Mo. Ct. App.
1980) (explaining that “to ‘aid and abet’ in the commission of a crime, it is necessary
that a defendant associate himself in some way with the principal in bringing about
the commission of a crime”). To state a claim under section 213.070(1), Markham
must show that Local 545 committed acts prohibited under the MHRA and that Wertin
aided and abetted the commission of those acts. See Matthews v. Eichorn Motors,
Inc., 800 N.W.2d 823, 830 (Minn. Ct. App. 2011) (explaining that “a viable
discrimination claim is a prerequisite to a claim of aiding and abetting discrimination”
under a similar provision in the Minnesota Human Rights Act); see also Johnson v.
BE & K Constr. Co., 718 F. Supp. 2d 988, 1009 (S.D. Iowa 2010) (holding that the
plaintiff’s aiding-and-abetting claim under the Iowa Civil Rights Act failed “because
the Court ha[d] found no [underlying] unfair or discriminatory practice” by the
employer); Strauss v. N.Y. State Dep’t of Educ., 26 A.D.3d 67, 73 (N.Y. 2005)
(“Where no violation of the [New York] Human Rights Law by another party has
been established, we find that an individual employee cannot be held liable for aiding
or abetting such a violation.”). Accordingly, we must consider whether § 301(a) of
the LMRA completely preempts Markham’s three claims against Local 545 to
determine whether it preempts his aiding-and-abetting claim against Wertin.2

In counts one and two of his petition, Markham alleged that Local 545 failed
to accommodate him and discriminated against him, in violation of the MHRA. See

2
We note that Markham’s aiding-and-abetting claim against Wertin can survive,
even though Markham has not challenged the dismissal of his principal claims against
Local 545. Those claims were dismissed on the grounds of complete preemption and
the federal statute of limitations. Setting aside the fact that any such federal claims
would be time-barred under federal law, there has been no determination on the merits
of Markham’s state-law claims against Local 545—i.e., whether Local 545
discriminated or retaliated against Markham. Accordingly, while Markham will have
to prove an underlying violation of the MHRA by Local 545 to prove his aiding-and-
abetting claim against Wertin, his decision to abandon the claims against Local 545
does not preclude his state-law claim against Wertin.

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Mo. Rev. Stat. § 213.055.1(2) (providing that it is an unlawful employment practice
for any labor organization “to discriminate against any individual because of his . . .
disability in admission to, or employment in, any program established to provide
apprenticeship or other training”). We address these claims together because “[t]he
MHRA makes the question of whether the job can be performed with or without
reasonable accommodation a part of the test to determine whether an employee is
disabled.” See Medley v. Valentine Radford Commc’ns, Inc., 173 S.W.3d 315, 319-
20 (Mo. Ct. App. 2005) (addressing together plaintiff’s claims of discrimination and
refusal to accommodate); see also Mo. Rev. Stat. § 213.010(4) (defining “disability”
as an impairment that substantially limits a major life activity and that “with or
without reasonable accommodation does not interfere with performing the job”). To
establish a claim of disability discrimination, Markham must prove that he is disabled,
that Local 545 took an adverse action against him, and that his disability was a factor
in the adverse action. See Gamber v. Mo. Dep’t of Health & Senior Servs., 225
S.W.3d 470, 475 (Mo. Ct. App. 2007); see also Medley, 173 S.W.3d at 320.

Wertin argues that Markham’s claims are completely preempted for the reasons
set forth in Davis v. Johnson Controls, Inc., 21 F.3d 866 (8th Cir. 1994). We disagree.
The plaintiff in Davis filed suit in federal district court, alleging that his employer had
discriminated against him by not permitting him to return to work after his physical
condition improved, in violation of section 213.055 of the Missouri Revised Statutes.
Id. at 867. The employer moved for summary judgment, arguing that the plaintiff
would have to show that the employer could have reasonably accommodated his
request to return to work and that such a showing would require the interpretation of
provisions of the CBA related to seniority rights. Id. at 868. The plaintiff’s
reinstatement would require “relocation . . . to a position commensurate with his
physical limitations.” Id. In response, the plaintiff argued that the collective
bargaining agreement allowed for transfer without alteration of seniority rights. Id.
We held that the claim was preempted under § 301(a) of the LMRA because the
plaintiff’s reinstatement “would require an examination of the seniority rights of both

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Davis and other employees under the collective bargaining agreement” and because
“Davis’s contention that the collective bargaining agreement allows for transfer
without alteration of seniority rights . . . would perforce require interpretation of the
agreement.” Id. at 868.

As an initial matter, the employer in Davis raised preemption as a substantive
defense to the plaintiff’s state-law claim. There was no dispute about removal
jurisdiction in Davis: the plaintiff there filed suit in federal district court. The Davis
court thus did not address the complete preemption question raised here. Moreover,
to the extent Davis applies, the facts are distinguishable. Markham alleged that he
could perform the job with or without reasonable accommodation and that he
“requested the reasonable accommodation that he be allowed to continue taking his
[prescription medication].” Compl. ¶ 51. Taking those allegations as true, whether
Markham is disabled and whether he could be reasonably accommodated are not
substantially dependent on analysis of the CBA.

Wertin argues that the discrimination claim is nonetheless preempted because
a court will have to interpret the CBA to determine what right Markham had to
training assignments and what duties were imposed upon Local 545 to make those
assignments. The CBA and related standards do not set forth the manner in which the
JATC places apprentices in job training assignments. Instead, the documents speak
generally about the JATC’s authority and responsibilities. The CBA gives the JATC
authority to issue assignments, to handle any issues concerning apprenticeship
matters, and to cancel the indenture of apprentices. The related standards reiterate that
the JATC places apprentices with employers, transfers apprentices from one job to
another, and may cancel apprenticeship agreements. Markham has not challenged the
JATC’s authority to place, transfer, or terminate his agreement. He has alleged that
his disability contributed to Local 545’s failure to place him and its decision to
terminate him. We thus view the legal character of the discrimination claims as
independent of the rights established in the CBA and related standards. While the

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claim may require a court to refer to or consult the CBA and related standards, it is not
substantially dependent thereon.3

Markham also argues that the district court erred in failing to separately
consider his underlying retaliation claim against Local 545, which arises under
section 213.070(2) of the Missouri Revised Statutes. “The prima facie case for
retaliation requires the employee to show that (1) [he] complained of discrimination;
(2) the employer took adverse action against [him]; and (3) the adverse action was
causally linked to the discrimination complaint.” Medley, 173 S.W.3d at 325. A
retaliation claim under section 213.070(2) is thus different from a discrimination claim
under section 213.055: a plaintiff need not prove that he was disabled to establish
retaliation, but rather must prove that he complained of discrimination. See
McCrainey v. Kansas City Mo. Sch. Dist., 337 S.W.3d 746, 754 (Mo. Ct. App. 2011)
(“[A] plaintiff need only have a good faith, reasonable belief that the conduct he or
she opposed was prohibited by the MHRA in order to prevail on a retaliation claim.”).

We hold that § 301(a) of the LMRA does not preempt Markham’s section
213.070(2) retaliation claim. In so holding, we reiterate that Markham’s claim that
Local 545 retaliated against him by failing to place him in training assignments does
not substantially depend on an analysis of the CBA. We also find instructive our
cases addressing preemption of retaliation claims asserted under Missouri Revised
Statutes section 287.780, “which provides a civil cause of action to employees who
have been ‘discharge[d] or in any way discriminate[d] against’ for exercising any of
their rights under Missouri worker’s compensation law.” Johnson v. Agco Corp., 159

3
During oral argument, Wertin’s counsel referred to training assignments as
“job referrals.” We note that Article IV of the CBA sets forth the procedure for
selection and referral of applicants for employment. The detail and specificity of the
CBA with respect to Local 545’s job-referral procedure must be contrasted with the
CBA’s general grant of authority to the JATC to manage the apprenticeship and
training program.

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F.3d 1114, 1115 (8th Cir. 1998) (alteration in the original) (quoting Mo. Rev. Stat. §
287.780). In those cases, we have held that the doctrine of complete preemption does
not apply so as to give a retaliatory discharge claim “the status of a § 301 claim from
the beginning.” Id. (citing Humphrey v. Sequentia, Inc., 58 F.3d 1238, 1244 (8th Cir.
1995)). Because Markham’s state-law claim of retaliation “can be resolved without
interpreting the [CBA] itself,” the retaliation claim “is ‘independent’ of the agreement
for § 301 pre-emption purposes.” See Lingle, 486 U.S. at 410.

Having determined that § 301(a) does not completely preempt Markham’s
discrimination and retaliation claims against Local 545, we likewise conclude that his
aiding-and-abetting claim against Wertin is not completely preempted. Wertin’s
defenses to the claim might refer a court to the CBA and related statement of policies,
which set forth specific grounds of just cause for termination. Any such defense,
however, “is not enough to confer federal jurisdiction on the ground of complete
preemption.” Agco Corp., 159 F.3d at 1116 (“[T]he presence of a federal question,
even a § 301 question, in a defensive argument” does not render a cause removable:
“a defendant cannot, merely by injecting a federal question into an action that asserts
what is plainly a state-law claim, transform the action into one arising under federal
law, thereby selecting the forum in which the claim shall be litigated.” (alteration in
original) (quoting Williams, 482 U.S. at 398-99) (emphasis in Williams)).

B. Complete Preemption Under § 9(a) of the NLRA

“When a labor organization has been selected as the exclusive representative
of the employees in a bargaining unit, it has a duty, implied from its status under
§ 9(a) of the NLRA as the exclusive representative of the employees in the unit, to
represent all members fairly.” Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 44
(1998) (citing Ford Motor Co. v. Huffman, 345 U.S. 330, 337 (1953); Vaca v. Sipes,
386 U.S. 171, 177 (1967)). That duty imposes upon the labor organization “a
statutory obligation to serve the interests of all members without hostility or

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discrimination toward any, to exercise its discretion with complete good faith and
honesty, and to avoid arbitrary conduct.” Vaca, 386 U.S. at 177. A breach of the duty
of fair representation occurs when “a union’s conduct toward a member of the
collective bargaining unit is arbitrary, discriminatory, or in bad faith.” Id. at 190.

Wertin argues that “[s]tate law actions attempting to assert breach of the duty
of fair representation by a labor organization and/or its agents are completely
preempted by federal law.” Appellee’s Br. 15. Neither the Supreme Court nor this
court has decided the precise issue, although we have said that “a plaintiff may bring
an action under Title VII and the MHRA if his union, for discriminatory reasons,
breaches its duty to represent him fairly in the handling of his complaints and
grievances.” Maegdlin, 309 F.3d at 1053 (citing 42 U.S.C. § 2000e-2(c)(1); Mo. Rev.
Stat. § 213.055.1(2); Carter v. Chrysler Corp. 173 F.3d 693, 703-04 (8th Cir. 1999);
Marquart v. Lodge 837, Int’l Ass’n of Machinists & Aerospace Workers, 26 F.3d 842,
845-46 (8th Cir. 1994)). We also have allowed state and federal discrimination claims
to proceed against unions in federal court. See, e.g., Carter v. United Food &
Commercial Workers, Local No. 789, 963 F.2d 1078, 1082-83 (8th Cir. 1992)
(reversing grant of summary judgment in favor of the union on plaintiff’s
discrimination claims under Title VII and the Minnesota Human Rights Act); see also
Eliserio v. United Steelworkers of Am. Local 310, 398 F.3d 1071, 1080 (8th Cir.
2005) (reversing the grant of summary judgment in favor of the union on plaintiff’s
Title VII and 42 U.S.C. § 1981 hostile-work-environment and retaliation claims and
instructing the district court to reconsider its supplemental jurisdiction over the
associated state-law claims under the Iowa Civil Rights Act).

Wertin contends that the duty of fair representation completely preempts
Markham’s state-law claims because “[t]hat duty, imposed by federal labor law,
completely occupies the area of law regarding the obligation of the Union and its
agents toward members to act in a non-discriminatory manner.” Appellee’s Br. 28.
We reject this argument, for although “[c]ongressional power to legislate in the area

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of labor relations . . . is long established[,] Congress . . . has never exercised authority
to occupy the entire field in the area of labor legislation.” Lueck, 471 U.S. at 208.
The question whether Markham’s claims of discrimination and retaliation are
preempted by § 9(a) of the NLRA “is one of congressional intent.” Id. (“The purpose
of Congress is the ultimate touchstone.” (quoting Malone v. White Motor Corp. 435
U.S. 497, 504 (1978))). Congress has not said whether and to what extent it intended
§ 9(a) of the NLRA to completely preempt such state-law claims, nor can we “discern
from the totality of the circumstances that Congress has sought to occupy the field to
the exclusion of the States.” See id. (quoting Malone, 435 U.S. at 504). Moreover,
Wertin has not shown that the discrimination and retaliation claims conflict with
§ 9(a) or otherwise frustrate the federal scheme. See id. He argues instead that the
discriminatory acts alleged by Markham “necessarily implicate” and “at least arguably
violate the Union and Wertin’s duty of fair representation.” Appellee’s Br. 28.
Without clear indication from Congress or any apparent conflict between Markham’s
state-law claims and Local 545’s federal duty of fair representation, we cannot say
that the preemptive force of § 9(a) “is so extraordinary” that it converts Markham’s
state-law complaint “into one stating a federal claim for purposes of the well-pleaded
complaint rule.” See Williams, 482 U.S. at 393 (internal quotation marks and citation
omitted).

Wertin’s reliance on Vaca v. Sipes, 386 U.S. 171 (1967), is misplaced. “Vaca
was not a case of complete preemption concerning subject matter jurisdiction in
federal court, but instead addressed whether ordinary preemption required the
application of federal law in state court . . . .” Barbour v. Int’l Union, 640 F.3d 599,
634 (4th Cir. 2011) (en banc) (Agee, J., concurring). Ordinary preemption “is distinct
from the jurisdictional doctrine of complete preemption used to remove state claims
to federal court.” Superior Waterproofing, 450 F.3d at 329 n.3. It “is a federal
defense that exists where a federal law has superseded a state law claim.” MFA
Petroleum, Inc., 701 F.3d at 248. Wertin is free to assert a preemption defense in state
court after the case is remanded, but “the presence of a federal question . . . in a

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defensive argument does not overcome the paramount policies embodied in the well-
pleaded complaint rule—that the plaintiff is the master of the complaint, that a federal
question must appear on the face of the complaint, and that the plaintiff may, by
eschewing claims based on federal law, choose to have the cause heard in state court.”
Williams, 482 U.S. at 398-99.4

Conclusion

Because Markham’s state-law claims are not completely preempted by § 301(a)
of the LMRA or § 9(a) of the NLRA, the district court lacked removal jurisdiction
over this case. We therefore vacate the district court’s order of dismissal and remand
the case to the district court with directions that it remand the case to the state court
from which it was removed. In light of our disposition of this appeal, we do not reach
the question whether the motion for leave to amend was properly denied.
______________________________

4
Wertin cites Richardson v. United Steelworkers of America, 864 F.2d 1162
(5th Cir. 1989), and BIW Deceived v. Local S6, Industrial Union of Marine &
Shipbuilding Workers of America, 132 F.3d 824 (1st Cir. 1997), in support of his
argument that NLRA § 9(a) completely preempts Markham’s state-law claims of
discrimination and retaliation. We find those cases factually distinguishable from the
case before us and thus inapposite. Whatever preemptive force § 9(a) might have, it
does not completely preempt the claims that Markham has alleged.

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