(concurring in part and dissenting in part).
I concur with the majority on the right-to-work claim, but dissent on the breach of contract claim. By concluding that Dirks’ breach of contract action is preempted by § 301 of the Labor Management Relations Act, the majority expands the § 301 preemption rule beyond its proper scope.
The narrow scope of the § 301 preemption rule has been explained by the United States Supreme Court:
Nor do we hold that every state-law suit asserting a right that relates in some way to a provision in a collective-bargaining agreement, or more generally to the parties to such an agreement, necessarily is pre-empted by § 301.
Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 105 S.Ct. 1904, 1916, 85 L.Ed.2d 206, 221 (1985). The scope of the § 301 preemption rule was further developed and narrowed in Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988), where the Supreme Court held that a state tort claim for retaliatory discharge was not preempted by § 301. The Court concluded that resolution of the state law claim did not depend on the interpretation of the meaning of the collective bargaining agreement. As a result, the claim did not endanger the need for a uniform interpretation of the collective bargaining agreement. The Court stated:
[EJven 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 agreer ment for § 301 pre-emption purposes.
Lingle, supra, 486 U.S. at 410, 108 S.Ct. at 1883, 100 L.Ed.2d at 421 (emphasis added). The majority attempts to distinguish Lingle by pointing out that the case involved a tort claim while Dirks asserts a contract claim. However, the type of claim is irrelevant. The Lingle Court referred to a “state-law claim” not a “state-law tort claim.” The majority misses the key point that the focus of a court’s inquiry is whether the state law claim, regardless of its nature, necessitates interpretation of the collective bargaining agreement. When a state law claim can be resolved without interpretation of the collective bargaining agreement, the claim is not preempted by § 301.
Dirks contends interpretation of the agreement is not necessary to resolve his claim. From the record, it is clear his termination was based upon Board Operating Guide 7-1, with the collective bargain*431ing agreement not invoked by Sioux Valley until after the termination when Dirks challenged the action. In addition, the agreement is almost silent on the matter of employee discharge. Article I, Section 3 simply provides that the right to discharge shall remain with Sioux Valley, provided no discharge shall be made without cause. Board Operating Guide 7-1, on the other hand, contains more detailed employment practices relating to discharge. For example, the provision of the operating guide under which Dirks was terminated states that non-probationary employees may be discharged only for cause, and they “will be subject to immediate discharge only for major violations such as theft.” Nothing in this provision of the operating guide conflicts with nor necessitates interpretation of the collective bargaining agreement. Any action taken in compliance with this provision of the operating guide would comply with the collective bargaining agreement, i.e., the employee would be discharged only for cause. As a result, the question is not whether Dirks’ discharge was in compliance with the collective bargaining agreement, but whether his discharge was in compliance with the operating guide. The answer to the question simply does not require interpretation of the collective bargaining agreement. The majority opinion fails to identify even one provision of the agreement that must be interpreted before Dirks’ claim can be resolved. Therefore, Dirks’ termination under the guidelines gives rise to a state law breach of contract action that is not preempted by § 301.
The majority claims the operating guide conflicts with the collective bargaining agreement because it would deny Dirks the benefit of the agreement’s “four-step grievance procedure before an employee may be discharged.” This is an incorrect interpretation of the collective bargaining agreement and the operating guide. The grievance procedure is not required to be used before an employee may be discharged as the collective bargaining agreement explicitly makes the grievance procedure applicable only to “any dispute involving the application or alleged violation of any provision of this agreement.” (emphasis added). Since Dirks is not claiming Sioux Valley violated the collective bargaining agreement, the grievance procedure is inapplicable. Nor has Dirks bargained away the benefit of the grievance procedure, for it is still available to him for a violation of the collective bargaining agreement. Dirks is simply attempting to enforce a contract other than the collective bargaining agreement and the court in Caterpillar, Inc. v. Williams, 482 U.S. 386, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987), approved of such a claim.
Although Dirks falls under the coverage of the collective bargaining agreement, that alone does not cause the operating guide to be superseded. Id. The majority cites J.I. Case Co. v. National Labor Relations Bd., 321 U.S. 332, 64 S.Ct. 576, 88 L.Ed. 762 (1944), for the proposition that all independent contracts become merely a part of a collective bargaining agreement. This is incorrect. As stated in Caterpillar, supra, 482 U.S. at 396, 107 S.Ct. at 2431, 96 L.Ed.2d at 329:
J.I. Case does not stand for the proposition that all individual employment contracts are subsumed into, or eliminated by, the collective-bargaining agreement.
J.I. Case stands for the proposition that an individual contract may not give up benefits; nothing is said about an independent contract that goes beyond the terms of the collective bargaining agreement. In Caterpillar, the Supreme Court recognized that individual employment contracts could exist outside the collective bargaining agreement. The Court stated that employees may bring suit under either an individual contract or a collective bargaining agreement:
Respondents allege that Caterpillar has entered into and breached individual employment contracts with them. Section 301 says nothing about the content or validity of individual employment contracts. It is true that respondents, bargaining unit members at the time of the plant closing, possessed substantial rights under the collective agreement, and could have brought suit under § 301.
*432As masters of the complaint, however, they chose not to do so.
Id., 482 U.S. at 394-5, 107 S.Ct. at 2431, 96 L.Ed.2d at 328-9. Explaining that not all individual employment contracts are eliminated by the mere existence of a collective bargaining agreement, the Court further stated:
Thus, individual employment contracts are not inevitably superseded by any subsequent collective agreement covering an individual employee, and claims based upon them may arise under state law. Caterpillar’s basic error is its failure to recognize that a plaintiff covered by a collective-bargaining agreement is permitted to assert legal rights independent of that agreement, including state-law contract rights, so long as the contract relied upon is not a collective-bargaining agreement.
Id., 482 U.S. at 396, 107 S.Ct. at 2431-2, 96 L.Ed.2d at 329-30. Section 301 does not require that every employment dispute involving an employee covered by a collective bargaining agreement “be resolved through collective bargaining and thus be governed by a federal common law created by § 301.” Id., 482 U.S. at 396, 107 S.Ct. at 2432, 96 L.Ed.2d at 330 n. 10.*
It is clear from Norton’s memo of July 13, 1984, that Dirks was terminated under Board Operating Guide 7-1, not the collective bargaining agreement. Accordingly, Dirks is free to assert his state-law contract rights under the operating guidelines. See Osterkamp v. Alkota Mfg., Inc., 332 N.W.2d 275 (S.D.1983). While he could have filed a grievance procedure in accordance with the collective bargaining agreement and then brought suit under § 301, he chose not to do so. Instead, he chose to pursue his state-law remedy, as did the •plaintiffs in Caterpillar.
Under the record, there is a genuine issue of material fact whether Dirks struck another employee in a manner constituting a major offense under the policy guideline. Groseth Int’l, Inc. v. Tenneco, Inc., 410 N.W.2d 159 (S.D.1987); Bego v. Gordon, 407 N.W.2d 801 (S.D.1987). While several employees stated that Dirks struck Lund, Dirks claimed he merely tapped Lund on the shoulder. There is a clear factual dispute and summary judgment was improperly granted.
I am authorized to state that WUEST, C.J., joins in this special writing.
The majority says Caterpillar is distinguishable because the independent contracts in that case were made when the employees were not under a collective bargaining agreement. However, that argument fails to grasp the breadth of the Court's holding in Caterpillar. The Court explicitly stated that a plaintiff covered by a collective bargaining agreement may assert state-law contract rights independent of the collective bargaining agreement. The fact the contracts were made when the Caterpillar employees were in managerial positions was not critical to the Court's holding and was offered simply as a reason why, under California law, the collective bargaining agreement was irrelevant to the individual contracts.