Clemmons v. Georgia-Pacific Corporation et al

Filing 51

ORDER granting 40 Motion to Dismiss; granting 41 Motion to Dismiss for Failure to State a Claim; Defendants' Motions to Dismiss are GRANTED in that Plaintiff's harassment claims are dismissed. This Court lacks subject matter jurisdic tion over Plaintiff's harassment claims because they are arguably subject to Section 7 or 8 of the NLRA;Defendant's Motions to Dismiss are GRANTED in that Plaintiff's claim with respect to the overtime board averaging is dismissed with prejudice. Plaintiff has failed to amend hiscomplaint to allege that he at least attempted to exhaust the grievance procedure in the collective bargaining agreement. Defendant's Motions to Dismiss are GRANTED in that Plaintiff's state law claim underthe LRWL is dismissed. Louisiana's Right to Work law is preempted by the NLRA because, as Plaintiff was able to work after leaving the Union, no "de facto" union security agreement exists. Signed by Judge John W. deGravelles on 12/21/2015. (KDC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

WILLIAM BRIAN CLEMMONS
CIVIL ACTION
Plaintiff,
No. 3:14-00432-JWD-RLB
VERSUS

GEORGIA-PACIFIC CORPORATION,
and
THE UNITED STEEL, PAPER, AND
FORESTRY, RUBBER,
MANUFACTURING, ENERGY,
ALLIED INDUSTRIAL AND SERVICE
WORKERS INTERNATIONAL UNION
(USW), LOCAL 1334
Defendants.
RULING ON MOTIONS TO DISMISS
I.

INTRODUCTION
Before the Court are the first Motion to Dismiss Amended Complaint, (Doc. 40), and

Second Motion to Dismiss for Failure to State a Claim (collectively, “Motions to Dismiss”), (Doc.
41), filed by the United Steel, Paper, and Forestry, Rubber, Manufacturing, Energy, Allied
Industrial and Service Workers International Union (USW), Local 1334 (“Union”), and GeorgiaPacific Corporation (“GP” or “Georgia Pacific”) (collectively, “Defendants”), respectively.
Plaintiff, Mr. William Brian Clemmons (“Clemmons” or “Plaintiff”), opposes both motions.
(Docs. 43, 44.) Oral argument is not necessary.
Case law and fact compel three conclusions. First, Plaintiff’s harassment claims must be
dismissed for one simple reason: this Court lacks subject matter jurisdiction over Plaintiff’s
harassment claims because they are arguably subject to Section 7 or 8 of the National Labor

Relations Act (“NLRA”),1 a federal labor law implemented and administered by the National
Labor Relations Board (“NLRB”) since July 5, 1935. Second, Plaintiff’s claim with respect to the
overtime board averaging must be dismissed with prejudice, as Plaintiff has failed to amend his
complaint to allege that he at least attempted to exhaust the grievance procedure in the collective
bargaining agreement, the minimum legal requirement. Finally, Plaintiff’s claim under Louisiana’s
Right-to-Work Law (“LRWL”) must too be dismissed. Here, the LRWL is preempted by the
NLRA because, with Plaintiff having been able to work after leaving the Union, no “de facto”
union security agreement2 existed, the only relevant (and pleaded) exception to the NLRA’s
otherwise broad preemptive ambit.
For these reasons, as more fully explained below, this Court GRANTS the Motions to
Dismiss. (Doc. 43; Doc. 44.)

II.

FACTUAL AND PROCEDURAL BACKGROUND
The relevant background has already been summarized in numerous prior orders;

accordingly, this Court now recaps only the most recent salient facts and allegations. (See Doc. 32
at 1-4; Doc. 34 at 1-4.) In two separate orders, addressing two different dispositive motions, (Docs.
4, 12), the Court dismissed all of Plaintiff’s claims against Defendants.3 (Docs. 32, 34.)

1

In this opinion, any reference to “Section []” or “§ []” is to a section of the NLRA.

2

Broadly defined, a de facto union security agreement, also called a de facto closed shop in literature and case law, is
an accord between a union and an employer that essentially bars the latter from hiring non-union members. See, e.g.,
Baker v. Int’l Alliance of Theatrical Stage Emps. & Moving Picture Operators of U.S. and Can., 691 F.2d 1291, 1293
(9th Cir. 1982) (noting that a regional director had found “found insufficient evidence of a de facto closed shop”);
Richard W. Latham, What is the Significance of 14(b) and Related “Right-to-Work” Legislation, 4 INDUS. & LAB.
REL. F. 357, 361–62 (1967–68) (discussing the rise of the de facto union shop in Texas after its adoption of a right to
work law). For more on this issue, see infra Part IV.c.
3
Plaintiff’s claims against the Union were dismissed with prejudice, while those against GP were dismissed without
prejudice.

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Nonetheless, pursuant to Federal Rule of Civil Procedure 15(a),4 the Court granted Plaintiff leave
to amend his original complaint, (Doc. 2), both to allege that “he at least attempted to exhaust the
grievance procedure in the collective bargaining agreement,” (Doc. 32 at 14; Doc. 34 at 12), and
to more “sufficiently allege a claim for harassment under federal or state law that is unrelated to
Plaintiff’s filing charges with the NLRB,” (Doc. 32 at 14).5 Subsequently, on April 28, 2015,
Plaintiff filed the Amended Complaint (“Complaint”). (Doc. 35.)

a. Plaintiff’s Amended Complaint
In spite of its adjudicated defects, the Complaint began by incorporating Plaintiff’s original
pleading.6 (Id. ¶ 28 at 1.) Thereafter, Plaintiff attempts to tailor his allegations so as to address the
Court’s prior ruling. (Id. ¶¶ 28 at 1, 30 at 2–3.)
He begins with an attempt to buttress his original allegation that his vacation time was
“improperly averaged into an overtime board.” (Id. ¶ 29 at 1.) Plaintiff states that he “amend[s] his
Complaint to cure [the] defect . . . that [he] has failed to allege that he at least attempted to exhaust
the grievance procedure in the collective bargaining agreement[.]” (Id.) He does this in the
following manner: while “the past practice was that, after returning from special details, an
employee averaged into the board,” “the [U]nion vice president directed otherwise in [his] case.”
(Id.) Plaintiff alleges that he “used the fact that he had recently taken vacation and averaged in

4
In this opinion, any and all references to “Rule” or “Rules” are to the Federal Rules of Civil Procedure unless
otherwise noted.
5

The Court notes that in dismissing Plaintiff’s claims against the Union, the Court did not specify that Plaintiff’s
harassment claims be unrelated to Plaintiff’s filing charges with the NLRB. (Doc. 34 at 14.) However, Plaintiff’s
Amended Complaint, as it relates to his harassment claims, solely relies on the Court’s Ruling with respect to GP.
(Doc. 30 ¶ 30 at 2 (citing Doc. 34 at 14).) Accordingly, the Court need not address any discrepancy between GP and
the Union’s Motions to Dismiss related to Plaintiff’s NRLB charges.
6

By Plaintiff’s choice, therefore, the Complaint does not supersede Plaintiff’s original complaint. See King v. Dogan,
31 F.3d 344, 346 (5th Cir. 1994) (holding that an amended complaint supersedes an original complaint “unless the
amended complaint specifically refers to and adopts or incorporates by reference the earlier pleading”).

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under a different procedure, which the maintenance secretary effected for [him].” (Id. ¶ 29 at 1-2.)
To Plaintiff, “this event is evidence of union involvement in the harassment.” (Id. ¶ 29 at 2.)
Next, with respect to harassment claims that are unrelated to Plaintiff’s filing charges with
the NLRB, Plaintiff alleges that “[e]very time a contract violation occurred, an explanation was
offered to [P]laintiff by either the Company or the Union, or both.” (Id. ¶ 30 at 2.) Plaintiff asserts
that “when the letter outlining the ‘Special Diamond Agreement’ surfaced, at the end of February
2014, it became apparent that all of the previous explanations were untrue, which makes the
emergence of this February 2014 letter the triggering event for the litigation.” (Id.)
Plaintiff claims that “[t]he harassment was not in response to the NLRB charges, as the
NLRB charges at most exacerbated the situation.” (Id. (emphasis omitted)) According to Plaintiff:
The harassment was based upon [his] refusal to allow the [U]nion and the company
to sweep aside a ratified agreement that he was working under, punctuated by his
withdrawing from the Union due to his perception of inadequate representation, and
asking the NLRB to look into the fact that he had never actually joined the Union
(whereas defendants had always taken dues out of his paycheck, in addition to
continuing to withdraw Union Dues from his paycheck for another six months).
(Id.) Plaintiff alleges that “the NLRB . . . conclude[d] that [he] had never asked to join the Union
and directed return of the previous six months dues paid” and thereafter “directed that a notice to
all employees be placed at the facility entrance, outlining that defendants could not, and would not
require Union membership in the future, for any employee.” (Id. ¶ 30 at 2–3.) Plaintiff asserts that
“when [he] did return to the . . . [collective bargaining agreement (“CBA”)] contract and the day
crew, after the . . . [memorandum of agreement (“MOA”)] contract was fulfilled, the physical
violence began and [he] filed formal charges with the company for workplace violence, fearing
for his safety in a hostile Union environment. (Id. (emphasis omitted)) In his telling, “[t]his hostile
environment led [P]laintiff to terminate his employment with Georgia Pacific in September 2014.”
(Id.)
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For further support, Plaintiff directs this Court to an email. Dated September 8, 2014, 7 this
missive, which was sent “[m]illwide,” declared that when Plaintiff first was interviewed for his
job at Georgia Pacific “almost thirty years ago,” his long term goal was “[r]etirement.” (Doc. 413 at 1.) Plaintiff acknowledged that “. . . it looks like that day has come, having been with GP half
of my life.” (Id.) He continued: “It has been [his] honor to work with some of the finest
maintenance personnel in the world, there in Port Hudson, and you will be missed.” (Id. at 2.)
Plaintiff “couldn’t begin to thank every one [sic] for the time [they] spent together[.]” (Id.) In
closing out his email, Plaintiff told everyone to work safely, and that his “hope for all of [them] is
that [they] reach this day, in [their] life, too.” (Id.) Per this email, “the effective date [of his
retirement would] be September 15[,] [2014].” (Id.)
In response, Mr. Tim Ellsworth (“Ellsworth”), the alleged project superintendent, wrote on
September 9, 2014:
Brian, congratulations with your retirement, I too look forward to that goal in 5
years. It has been a pleasure working with you - I truly respect what you and [T]erry
did for us and am understanding of the bullets you guys took to move our product
system towards a vision that quite frankly the mill was not ready for. It was an
honor working with you.
(Doc. 41-3 at 1.) Plaintiff claims that this email from Ellsworth, “the project superintendent,
written when [P]laintiff left GP . . . admits that he was aware that [P]laintiff was being harassed.”
(Doc. 35 ¶ 31 at 3.) Plaintiff further alleges that Ellsworth “did not take steps to ensure harassment

7

The Court notes that Plaintiff claimed to have attached the emails and “made [them] a part” of his Amended
Complaint (Doc 35 ¶ 31 at 3) but failed to do so. Nevertheless, GP admits to receiving a copy of the email and attached
it to their Motion to Dismiss. (Doc. 41-3.) On a motion to dismiss, the court may consider “the complaint, its proper
attachments, ‘documents incorporated into the complaint by reference, and matters of which a court may take judicial
notice.’ ” Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011) (quoting Dorsey v. Portfolio
Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008) (citations and internal quotation marks omitted). Thus, it is
appropriate for the Court to consider the e-mails Plaintiff referenced in his Amended Complaint.

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against [P]laintiff ceased.” (Id.) Seemingly, Ellsworth “did speak to the crew on one occasion, but
failed to provide follow-up supervision, allowing harassment to actually increase as a result.” (Id.)

III.

PROCEDURAL ISSUES
Before discussing the Parties’ arguments concerning the Motions to Dismiss, there is an

overriding procedural issue concerning Plaintiff’s briefing and attachments to his Opposition that
GP raises in its Motion to Dismiss.8 In his Opposition to both motions, Plaintiff attaches a letter
from GP’s counsel, (Doc. 43-1; Doc. 44-1), an email from Plaintiff’s counsel, (Doc. 43-2; Doc.
44-2), and his own affidavit. (Doc. 43-3; Doc. 44-3.) GP argues that “[t]hese exhibits are neither
referenced nor otherwise central to the allegations in [Plaintiff’s] Amended Complaint[,]” and, as
such, “this Court should disregard such exhibits[.]” (Doc. 45 at 1 (citing Xavier v. Belfor USA
Grp., Inc., Nos. 06-491, 06-7084, 2007 WL 4224320, *2, 2007 U.S. Dist. LEXIS 87028, at *7
(E.D. La. Nov. 26, 2007)). Because Plaintiff relies upon these documents in varying degrees,9 this
Court must first address this procedural issue.
The governing standard appears in Rule 12, its many exceptions mined in case law. In
general, pursuant to Rule 12(d), “[i]f, on a motion under Rule 12(b)(6)[,] . . . matters outside the
pleadings are presented to and not excluded by the court, the motion must be treated as one for
summary judgment under Rule 56.” FED. R. CIV. P. 12(d); United States v. Rogers Cartage Co.,
794 F.3d 854, 861 (7th Cir. 2015). Naturally, there are some exceptions to this ostensibly ironclad
standard, such as when documents are referenced or incorporated into a complaint. See supra note

8

The Court notes that the Union does not raise this issue. Nonetheless, the Court must address this issue with respect
to both motions.
9
For example, in Plaintiff’s Opposition to the Union’s Motion to Dismiss, a large portion of his brief contains
numerous block quotes from his affidavit. (See Doc. 44 at 1-7.)

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7. As the Fifth Circuit has recently explained in this regard, “[i]f the district court does not rely on
materials in the record, such as affidavits, it need not convert a motion to dismiss into one for
summary judgment.” U.S. ex rel. Long v. GSDMIdea City, L.L.C., 798 F.3d 265, 275 (5th Cir.
2015) (citing Davis v. Bayless, 70 F.3d 367, 372 n. 3 (5th Cir. 1995). “[T]he mere submission [or
service] of extraneous materials does not by itself convert a Rule 12(b)(6) [or 12(c)] motion into a
motion for summary judgment.” Id. (quoting Finley Lines Joint Protective Bd. v. Norfolk S. Corp.,
109 F.3d 993, 996 (4th Cir. 1997)) (internal quotation marks omitted) (second alteration in
original). A district court, moreover, enjoys broad discretion in deciding whether to treat a motion
to dismiss as a motion for summary judgment. See St. Paul Ins. Co. v. AFIA Worldwide Ins. Co.,
937 F.2d 274, 280 n.6 (5th Cir. 1991). In light of this case law, the Court must determine whether
Plaintiff’s attached documents and affidavit should be considered, thus converting the motions to
summary judgment, or excluded, rendering any such conversion unnecessary.10 As Plaintiff has
tendered multiple documents, each category must be analyzed separately.
First, with respect to the communications between Plaintiff’s counsel and GP’s counsel,
these communications concerned a potential extension of time for Plaintiff to respond to the
Motions to Dismiss as well as the discovery cut-off date in this Court’s scheduling order. These
communications bear no relevance to the Motions to Dismiss before the Court. Additionally, they
were neither referenced nor incorporated in Plaintiff’s Amended Complaint, a well-recognized
exception, see, e.g., Tierney v. Vahle, 304 F.3d 734, 738-39 (7th Cir. 2002); Wright v. Assocs. Ins.
Cos., Inc., 29 F.3d 1244, 1248 (7th Cir. 1994). So convinced, the Court excludes these documents
(Docs. 43-1, 43-2, 44-1 and 44-2), from its consideration pursuant to Rule 12(d).

10

The Court notes that it looks at the documents and affidavit Plaintiff attached to his Oppositions for the sole purpose
of determining if they merit consideration.

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Second, with respect to Plaintiff’s Affidavit, the affidavit appears to be a first person
narrative of Plaintiff’s original and Amended Complaint. Additionally, Plaintiff cites no authority
for the proposition that such an affidavit may be considered on a motion to dismiss under Rule
12(b)(6). Indeed, case law suggests the opposite. As the Eastern District of Texas has noted,
“[a]ffidavits typically are not considered in deciding a motion to dismiss[.]” U.S. v. Williams, No.
6:06-CV-524, 2008 WL 783555, at *4 n. 2, 2008 U.S. Dist. LEXIS 22460 (E.D. Tex. Mar. 20,
2008); see also, e.g., Newman v. Gagan LLC, 939 F. Supp. 2d 883, 892 (N.D. Ind. 2013) (“If the
court considers granting an ostensible motion to dismiss for failure to state a claim under Rule
12(b)(6) in reliance on anything . . . [beside a complaint and referenced matters], then additional
procedures are required.”); Hill v. Trs. of Ind. Univ., 537 F.2d 248, 251 (7th Cir. 1976) (“Courts
are restricted to an analysis of the complaint when evaluating a motion to dismiss” and may
therefore not consider affidavits). Yet, another reason justifies setting aside Plaintiff’s affidavit:
rather than providing new evidence or illuminating context, this document offers little more than
a narrative of much already recapped in his other briefing. With these essentially redundant
materials providing no more meaningful evidence, the Court too excludes Plaintiff’s affidavit,
(Doc. 43-3; Doc. 44-3), from consideration.
Accordingly, the Court has excluded the documents and affidavit Plaintiff attached to his
Oppositions; as a result, the Motions to Dismiss need not be converted to motions for summary
judgment under the Rules.

IV.

PARTIES’ ARGUMENTS
Defendants have filed separate Motions to Dismiss, (Docs. 40, 41), seeking to dismiss

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Plaintiff’s claims pursuant to Rule 12(b)(6).11

a. The Union’s Arguments
The Union argues that “Paragraph 29 of . . . [the] Complaint addresses the overtime
averaging claim, but nowhere in that paragraph does Plaintiff allege that he attempted or requested
to file a grievance challenging the improper averaging of his overtime.” (Doc. 40-1 at 3.) As such,
the Union asserts that this allegation in the Complaint should be dismissed. (Id.) Next, the Union
contends that Plaintiff’s allegations that he was “harassed based on his protected activity and that
the totality of the circumstances constituted a violation of Louisiana’s Right to Work law[,]” are
preempted pursuant to so-called “Garmon Preemption,” a doctrine pioneered in San Diego Bldg.
Trades Council, Millmen’s Union, Loc. 2020 v. Garmon, 359 U.S. 236, 79 S. Ct. 773, 3 L. Ed. 2d
775 (1959), see, e.g., Kaufman v. Allied Pilots Ass’n, 274 F.3d 197, 200–01 (5th Cir. 2001). (Doc.
40-1 at 3.) The Union maintains that “[u]nder Garmon, claims based on activity arguably protected
or prohibited by the National Labor Relations Act are subject to the primary jurisdiction of the
National Labor Relations Board, and lawsuits in state or federal court are preempted.” (Id.)
First, the Union argues that Plaintiff’s claim that he was harassed based on his “refusal to
allow the [U]nion and the company to sweep aside a ratified agreement that he was working
under[,]” is an invocation of a collectively bargained right that constitutes “concerted activity”
under § 7 of the NLRA. (Doc. 40-1 at 4). The Union contends that “a claim based on such a right
is . . . preempted under Garmon.” (Id. (citing Smith v. Hous. Oilers, Inc., 87 F.3d 717, 722 (5th
Cir. 1996) (citing NLRB v. City Disposal Sys., Inc., 465 U.S. 822, 840–41, 104 S. Ct. 1505, 1516,

11

The Union moved for dismissal pursuant to Rules 12(b)(2), 12(b)(4), and 12(b)(6). (Doc. 40 at 1.) However, the
Union only briefed dismissal pursuant to Rule 12(b)(6). As such, the Court need not address Rules 12(b)(2) and
12(b)(4).

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79 L. Ed. 2d 839 (1984))).) In particular, the NLRB “has reasoned that a single employee’s
invocation of a right grounded in a collective bargaining agreement affects all employees covered
by the agreement and thus constitutes concerted activity.” (Doc. 40-1 at 4 (citing City Disposal,
465 U.S. at 829-30 (citing Interboro Contractors, Inc., 157 NLRB 1295, 1298 (1966), enf’d, 388
F.2d 495 (2nd Cir. 1967))).) Consequently, “Plaintiff’s protest against the abandonment of the
MOA and return to the CBA is therefore protected under § 7 of the NLRA, and his claim of
harassment based on that protect is preempted.” (Id.)
Next, the Union argues that “Plaintiff’s claim that the Union harassed him because of his
withdrawal from the Union is . . . based on conduct arguably protected by § 7 or prohibited by § 8
of the NLRA, and this claim is [too] preempted under Garmon.” (Id. at 5 (citing Local 926, Int’l
Union of Operating Eng’rs v. Jones, 460 U.S. 669, 103 S. Ct. 1453, 75 L. Ed. 2d 368 (1983)).)
Finally, the Union asserts that Plaintiff’s claim that “[t]he totality of the facts and
circumstances in this case” constitutes a violation of LRWL, as encoded in LA. R.S. § 23:981 et
seq., is “preempted because it does not involve a union security clause.” (Doc. 40-1 at 5). The
Union argues that while “Section 14(b) of the Taft-Hartley Act, 29 U.S.C. § 164(b) . . . allows
states to prohibit union security clauses (provisions requiring union membership as a condition of
employment), it is a narrow exception to federal preemption of state regulation in the labor arena.”
(Id. at 5–6.) As no security clause is involved, the Union insists, the Plaintiff’s claims are
preempted. (Id. at 6.)

b. Georgia Pacific’s Arguments
Some of GP’s arguments are similar to the Union’s motion to dismiss. For example, with
respect to Plaintiff’s failure to allege that he at least attempted to exhaust the grievance procedure

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in the CBA, GP argues that “Paragraph 29 of the Amended Complaint is the [P]laintiff’s attempt
to cure the defect, but nowhere in this paragraph or anywhere else in the Amended Complaint does
[P]laintiff allege that he attempted to pursue the grievance and arbitration procedures under the
CBA.” (Doc. 41-1 at 4.) While GP goes into more detail, such as arguing that Plaintiff “simply
reiterates the same substantive allegations contained in paragraph 12 of his original Petition[,]”
(Id.), GP’s essential argument is substantively identical – that Plaintiff has not alleged in his
Amended Complaint that he attempted to pursue the grievance procedures. Beyond these
similarities, however, GP’s motion substantially differs from its codefendant’s papers as to
Plaintiff’s harassment claims and the effect of preemption.
In regards to Plaintiff’s harassment claims, GP argues that Plaintiff has “fail[ed] to allege
that he was subjected to harassment based on a characteristic protected by any state or federal law
outside one which falls within the exclusive jurisdiction of the NLRB.” (Id. at 7.) GP asserts that
“all of [P]laintiff’s new allegations of harassment also concern rights protected by Sections 7 and
8 of the NLRA, 29 U.S.C. §§ 157 and 168.” (Id. at 8.) Relatedly, GP argues that the LRWL is
preempted because, similar to the Union, there is no union security agreement in the CBA. (Id. at
12.) GP also argues that Plaintiff was able to work after leaving the Union, and asserts that this
very fact fatally contradicts Plaintiff’s present claims. (Id.)
As to the Defendants’ shared preemption argument, while the Union reasons that because
Plaintiff’s claims are preempted they should be dismissed on the merits, GP contends that
Plaintiff’s “claim of harassment remains subject to Garmon preemption and falls within the
exclusive jurisdiction of the NLRB.” (Doc. 41-1 at 9.) With the NLRB thusly uniquely
empowered, this Court presently “lacks jurisdiction over [Plaintiff’s harassment] claim.” (Id. at
13.) Rather than raising preemption as a defense, then, GP pleads a jurisdictional bar, the

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substantive argument otherwise identical. This difference will be discussed below.

c. Plaintiff’s Arguments
Plaintiff opposes the Motions to Dismiss separately.12

i. Plaintiff’s Opposition to the Union’s Motion to Dismiss
In this first attack, Plaintiff relies on numerous excerpts from his Affidavit in opposing the
Union’s Motion to Dismiss, (Doc. 40). (See Doc. 44 at 1-7.) As explained above, Plaintiff’s
Affidavit must be excluded. See supra Part III. As Plaintiff has chosen to pepper his Opposition
with extensive quotes from an affidavit, those portions of his opposition are not properly before
the Court for purposes of Rule 12. Bound by these constraints, this Court therefore only considers
those portions of Plaintiff’s Opposition that have been properly presented.
Plaintiff argues that the Union is “re-hash[ing]” its previous argument to dismiss his claim.
(Doc. 44 at 1.) Whatever his first try’s defects, the newest Complaint “plausibl[y] suggest[s] . . .
illegal discrimination, harassment, and retaliation by both [Defendants][.]” (Id.) In his reading, by
“[d]raw[ing] on its juridical experience and common sense,” this Court cannot but recognize that
a labor union will be none too happy to have a 27-year employee decide to spend his union dues
elsewhere[.]” (Id. at 3 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173
L. Ed. 2d 868 (2009)).)
Plaintiff quotes from the original complaint, presumably to support this statement,
asserting that he resigned from the Union on January 4, 2013, and gave instructions to stop

12

As noted by GP, Plaintiff incorporates in his Oppositions his prior arguments made in response to the first two
motions to dismiss. (Doc. 43 at 1 n. 1; Doc. 44 at 1 n. 1.) As the Court has already ruled on these prior arguments, see
supra Part II, the Court declines to re-hash those issues.

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collecting dues from his wages. (Id. (quoting Doc. 2 ¶ 9 at 5).) Plaintiff alleges that the Union
refused because of language in their contract and collected dues from him through the middle of
June 2013. (Id. (quoting same).) Moving onto more doctrinal terrain, Plaintiff dismisses Garman
as “distinguishable on its facts[.]” (Id. at 3.) Additionally, Plaintiff appears to argue that similar to
Smith v. Houston Oilers, 87 F.3d 717 (5th Cir. 1996), where the Fifth Circuit endorsed an exception
to federal preemption where “the defendants’ ‘outrageous conduct’ is merely a peripheral concern
of federal law,” there was no quick response to his claim. (Doc. 44 at 4.) Further, Plaintiff claims
that Hobbs v. Hawkins, 968 F.2d 471 (5th Cir. 1992), “is inapposite” because it was a dispute about
a union certification election campaign. (Id.)
Next, with respect to the preemption argument, Plaintiff argues that the Supreme Court in
City Disposal Sys., Inc., 465 U.S. at 840–41, “recognized the type of [Defendants’] ploy that ‘. . .
a requirement that the employee explicitly refer to the collective-bargaining agreement is likely to
serve as nothing more than a trap for the unwary.’” (Doc. 44 at 4.) Plaintiff also appears to claim
that City Disposal, 465 U.S. at 829–30, is contrary to Defendant’s assertions. (Id. at 5.)
Additionally, Plaintiff claims that “[g]iven the totality of facts and circumstances, de facto
there is a union security agreement involved[.] ” (Id. at 6.) Plaintiff asserts that this “totality
constitutes ‘. . . the execution or application of agreements requiring membership in a labor
organization as a condition of employment in any State or Territory in which such execution or
application is prohibited by State or Territorial law.’” (Doc. 44 at 6 (quoting Retail Clerks Intern.
Ass’n, Loc. 1625, AFL-CIO v. Schermerhorn, 375 U.S. 96, 99, 84 S. Ct. 219, 220, 11 L. Ed. 2d
179 (1963)).)

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In his conclusion, Plaintiff asserts that “[a]ny alleged failure to exhaust the remedies
established by the CBA with respect to his claim based on the overtime board is due to the acts
and omission of the [D]efendants.” (Doc. 43 at 5.)

ii. Plaintiff’s Opposition to GP’s Motion to Dismiss
As he did in response to the Union’s arguments, Plaintiff asserts that GP is “re-hash[ing]”
their own prior positions and claims that GP “cites to no authority for its propounding that ‘...
plaintiff failed to allege any protected class under federal or state law.’” (Doc. 43 at 1). Plaintiff
claims that “this Honorable Court ‘. . . must assume that [he] is neither shrewd nor experienced in
dealing with . . .’ the NLRB.” (Id. (quoting Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009)).)
Plaintiff appears to assert that he was improperly treated by GP when they violated a
contract, though Plaintiff is non-specific as to this alleged contractual violation in the Opposition.
Plaintiff claims that he is seeking to vindicate a uniquely personal right of his employment, such
as wages hours and overtime pay. (Id. at 2 (citing Hines v. Anchor Motor Freight, Inc., 424 U.S.
554, 563, 96 S. Ct. 1048, 47 L. Ed. 2d 231 (1976)).) Plaintiff then quotes his first pleading and the
Complaint in which he alleges that he was denied overtime work for the Diamond Project and that
when contractual violations occurred, he was lied to. (Id. at 3.)
Additionally, Plaintiff claims that the Union manufactured evidence. (Id.) Finally, Plaintiff
claims that GP failed to live up to its “higher degree of responsibility upon the parties to such
agreements . . .” (Id. at 4 (citing Hines).)

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d. The Union’s Reply
The Union asserts that Plaintiff’s Opposition “contains little or no discernible argument,
but primarily attempts to distinguish the Union’s cases based on irrelevant factual distinctions,
while ignoring the relevance of the cases’ reasoning.” (Doc. 46 at 1.) The Union claims that
“[i]ronically, [Plaintiff] describes the Union’s arguments as a ‘re-hash,’ when he is re-hasing
arguments already rejected by this Court.” (Id.)
The Union next claims that Plaintiff has failed to amend his Complaint to allege that he
attempted to exhaust the grievance procedure with respect to the overtime board. (Id.) The Union
argues that Plaintiff “points to earlier attempts at filing grievances over unrelated incidents . . .
[which are] insufficient to salvage an inadequate claim.” (Id. at 2.)
The Union asserts that this Court already dismissed Plaintiff’s grievance claim related to
his filing a grievance when he was “drafted under a mixture of two contracts.” (Id. (citing Doc. 44
at 1).) It was dismissed because it was barred by the six-month statute of limitations. Additionally,
the Union asserts that Plaintiff’s attempt to file a grievance in or around June 2013, which occurred
more than six months prior to Plaintiff’s filing of this suit on June 3, 2014, is also time barred. (Id.)
Afterward, the Union argues that Plaintiff does not explain what a “de facto” union security
agreement is, nor does Plaintiff cite any case law that supports such a claim. (Id. at 2–3.) The
Union claims that Plaintiff “points to no agreement, written or de facto, that requires membership
in the Union as a condition of employment.” (Id. at 3.) It points out that “Plaintiff alleged that he
withdrew from the Union on January 4, 2013[,] and continued working for GP until his voluntary
retirement on September 15, 2014.” (Id.) This fact prompts one conclusion: because Plaintiff was
not terminated from his employment when he withdrew from the Union, “he cannot prove any set

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of facts that would constitute a non-preempted claim under Louisiana’s right to work statute.”
(Id.)13

e. GP’s Reply
With respect to Plaintiff’s harassment claim, GP asserts that “Plaintiff makes no attempt
… to identify a protected class outside activities that are encompassed by the NLRA.” (Doc. 45 at
2.) GP claims that “Plaintiff’s new factual allegations offered to support the harassment claim deal
with issues concerning Plaintiff’s withdrawal from the Union, complaints about Union dues, and
failure to support the Union, which are preempted by federal law and fall within the exclusive
jurisdiction of the NLRB.” (Id. (citing Garmon, 259 U.S. at 244–45).)
Finally, GP argues, at some length, that Plaintiff failed to allege that he exhausted the
grievance procedure provided in the CBA. (Id. at 3–6.) Pertinently, GP argues that, to the extent
Plaintiff suggested that the alleged denial of his untimely grievances excuses his failure to exhaust,
“an employee may not merely assert his belief that use of grievance procedures would have been
futile.” (Id. at 4 (citing Parham v. Carrier Corp., 9 F.3d 383, 390–91 (5th Cir. 1993)).)

V.

Motion to Dismiss Standard
Rule 12(b) governs dismissal of a complaint in federal court, enumerating six separate

grounds. FED. R. CIV. P. 12(b). Rule 12(b)(1) specifically allows for dismissal for “lack of subjectmatter jurisdiction,” FED. R. CIV. P. 12(b)(1); Russell v. Choicepoint Servs., Inc., 302 F. Supp. 2d
654, 658 (E.D. La. 2004) (citing Rule 12(b)(1)). However, “[l]ike other challenges to a court’s

13

The Court notes that the Union has asked for the Court to deny a request made by Plaintiff in his Affidavit to depose
two people. However, as the Court has excluded Plaintiff’s Affidavit, the Court need not address this issue.

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subject matter jurisdiction, motions raising the ripeness issue are treated as brought under Rule
12(b)(1) even if improperly identified by the moving party as brought under Rule 12(b)(6).” St.
Clair v. Chico, 880 F.2d 199, 201 (9th Cir. 1989); see also, e.g., Willoughby v. U.S. ex rel. U.S.
Dep’t of Army, 730 F.3d 476, 479 (5th Cir. 2013) (“When a Rule 12(b)(1) motion is filed in
conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional
attack before addressing any attack on the merits.” (citing Ramming v. United States, 128 F.3d
158, 161 (5th Cir. 2001))). While the Defendants contend that Plaintiff’s case should be dismissed
pursuant to Rule 12(b)(6), GP separately argues with respect to Plaintiff’s harassment claim, that
Plaintiff’s claim “remains subject to Garmon preemption and falls within the exclusive jurisdiction
of the NLRB.” (Doc. 41-1 at 9.) The Union does argue for dismissal under Rule 12(b)(6) with
respect to the allegedly preempted claims, but it also asserts that “[u]nder Garmon, claims based
on activity arguably protected or prohibited by the National Labor Relations Act . . . are subject to
the primary jurisdiction of the National Labor Relations Board.” (Doc. 40-1 at 3.) Thus, while the
Defendants appear to disagree on the effect of preemption, because preempted claims are subject
to the jurisdiction of the NLRB, the Court will analyze arguments with respect to Plaintiff’s
harassment claims under Rule 12(b)(1) rather than Rule 12(b)(6). See, e.g., Lewis v. Whirlpool
Corp., 630 F.3d 484, 487–88 (6th Cir. 2011) (considering the defense of Garmon preemption under
Rule 12(b)(1)); Lupiani v. Wal-Mart Stores, Inc., 435 F.3d 842, 845–46 (8th Cir. 2006) (same).

a. Rule 12(b)(6)
In Thompson v. City of Waco, Texas, 764 F.3d 500 (5th Cir. 2014), the Fifth Circuit
summarized the Rule 12(b)(6) standard thusly:
[The court] accept[s] all well-pleaded facts as true and view all facts in the light
most favorable to the plaintiff. [The court] need not, however, accept the plaintiff's
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legal conclusions as true. To survive dismissal, a plaintiff must plead enough facts
to state a claim to relief that is plausible on its face. A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.
Id. at 502–503 (internal citations and quotations omitted). This Court’s duty is “to determine
whether the [P]laintiff stated a legally cognizable claim that is plausible, not to evaluate the
[P]laintiff’s likelihood of success.” Id. at 503. In effect, therefore, Plaintiff must set forth sufficient
factual allegations to support a viable claim under existing law. Iqbal, 129 S. Ct. at 1949–50 (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 550, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2006)); see
also Frith v. Guardian Life Ins. Co. of Am., 9 F. Supp. 2d 734, 737–38 (S.D. Tex. 1998).

b. Rule 12(b)(1)
Federal courts are courts of limited jurisdiction; without jurisdiction conferred by statute
or the Constitution, they lack the power to adjudicate claims. In re FEMA Trailer Formaldehyde
Prods. Liab. Litig., 668 F.3d 281, 286–87 (5th Cir. 2012) (citing Kokkonen v. Guardian Life Ins.
Co. of Am., 511 U.S. 375, 377, 114 S. Ct. 1673, 128 L. Ed. 2d 391 (1994), and Stockman v. FEC,
138 F.3d 144, 151 (5th Cir. 1998)); accord, e.g., Hall v. Louisiana, 12 F. Supp. 3d 878, 884 (M.D.
La. 2014). Under Rule 12(b)(1), a claim is “properly dismissed for lack of subject-matter
jurisdiction when the court lacks the statutory or constitutional power to adjudicate” the claim. In
re FEMA Trailer Formaldehyde Prods. Liab. Litig., 668 F.3d at 286 (quoting Home Builders Ass'n,
Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir.1998). A court should consider a Rule
12(b)(1) jurisdictional attack before addressing any attack on the merits. Id. (citing Ramming, 281
F.3d at 161, cert. denied, 536 U.S. 960, 122 S. Ct. 2665, 153 L. Ed. 2d 839 (2002)). Considering
a Rule 12(b)(1) motion to dismiss first “prevents a court without jurisdiction from prematurely
dismissing a case with prejudice.” Id. (citing Ramming, 281 F.3d at 161).
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“A motion to dismiss under Rule 12(b)(1) is analyzed under the same standard as a motion
to dismiss under Rule 12(b)(6).” Hall v. Louisiana, 974 F. Supp. 2d 978, 985 (M.D. La. 2013)
(citing Benton v. United States, 960 F.2d 19, 21 (5th Cir. 1992)). However, the Fifth Circuit has
carefully explained an important distinction between the two motions:
The choice of rules does hold the potential, however, to affect the materials in the
record that may be considered when conducting our review. The Rule 12(b)(6)
analysis is generally confined to a review of the complaint and its proper
attachments, . . . , while under Rule 12(b)(1), the court may consider any of the
following: (1) the complaint alone; (2) the complaint supplemented by the
undisputed facts evidenced in the record; or (3) the complaint supplemented by
undisputed facts plus the court's resolution of disputed facts.
Walch v. Adjutant General’s Dep’t of Tex., 533 F.3d 289, 293 (5th Cir. 2008) (citations and internal
quotation marks omitted); see also, e.g., Breadmore v. Jacobson, No. 4:13-CV-361, 2014 U.S.
Dist. LEXIS 97332, at *6–7, 2014 WL 3543726, at *3 (S.D. Tex. July 14, 2014) (citing id.).
Furthermore, “[t]he burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting
jurisdiction. Accordingly, the plaintiff constantly bears the burden of proof that jurisdiction does
in fact exist.” Hall, 974 F. Supp. 2d at 986 (citations and internal quotations omitted) (citing
Celestine v. TransWood, Inc., 467 F. App’x 317, 318 (5th Cir. 2012)).

VI.

Discussion
a. Plaintiff’s Harassment Claims
As explained above, Plaintiff was given leave to amend his original complaint to allege a

claim for harassment under federal or state law that is unrelated to Plaintiff’s filing charges with
the NLRB. GP argues that Plaintiff has failed to do so for one reason. The allegations in his
Amended Complaint are “subject to Garmon preemption, and thus fall within “the exclusive
jurisdiction of the NLRB,” because “all . . . deal with issues concerning [P]laintiff’s withdrawal

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from the Union, complaints about Union dues, and failure to support the Union.” (Doc. 41-1 at 89.) GP also argues that the email from Tim Ellsworth referenced in Plaintiff’s complaint “makes
no mention or suggestion of any harassment[.]” (Id. at 9 n. 5). Seemingly, Plaintiff counters this
contention by attacking GP for “cit[ing] to no authority for its propounding that . . . plaintiff failed
to allege any protected class under federal or state law.” (Doc. 43 at 1 (internal quotation marks
omitted).) Plaintiff also claims that he is seeking to vindicate a uniquely personal right of his
employment, such as wages hours and overtime pay, immune from preemption under the NLRA.
(Id. at 2 (citing Hines, 424 U.S. at 563)).) Despite these allusion, Plaintiff does not appear to
directly counter GP’s argument that his new harassment claims fall under the exclusive jurisdiction
of the NLRB.14

i. GP’s Alleged Admission that Plaintiff was being Harassed
First, with respect to Plaintiff’s allegation that GP was aware of the alleged harassment,
the Court agrees with GP. Quite simply, the email from Ellsworth lacks any reference to any
harassment or acknowledgement that Plaintiff was being harassed. While Plaintiff alleges that
Ellsworth’s email “admits that he was aware that [P]laintiff was being harassed,” (Doc. 35 ¶ 31 at
3), it contains no such explicit admission. Rather, Ellsworth congratulated Plaintiff on his
retirement and stated he looked forward to retirement himself, statements hinting at no harassment
and accepting no responsibility for such actions, if any. (Doc. 41-3 at 1.)
The only statement that Plaintiff appears to rely on from the email is, in truth, no such
sturdy buttress. True, in this email, Ellsworth declared that he respected what Plaintiff and another

14

Indeed, it is difficult to pin point Plaintiff’s exact arguments against either of the Motions to Dismiss because of his
inartful briefing.

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employee did for GP, and that he was “understanding of the bullets you guys took to move our
product system towards a vision that quite frankly the mill was not ready for.” (Id.) Even viewing
all facts in light most favorable to Plaintiff, as the Court is required to do on a motion to dismiss,
this statement falls well short of an admission that Plaintiff was being harassed. Ellsworth makes
no reference to exactly what “bullets” Plaintiff took for the company. Further, Ellsworth
specifically referenced an apparent change in a “product system” that the “mill was not ready for.”
(Id.) In other words, the bullets referenced not an awareness of any other person’s harassment of
Plaintiff but of the extra efforts that the Plaintiff and others to prepare the mill for some new,
unnamed and unspecified, enterprise.
To summarize, when read in context and with its words accorded their patent meaning,
Ellsworth’s email congratulates Plaintiff’s retirement and vaguely references unspecified “bullets”
Plaintiff took for the company. Indeed, a part of the email correspondence is Plaintiff’s own
original e-mail in which he wrote that he “couldn’t begin to thank everyone for the time [they]
spent together, but know that [he] will remember [them].” (Id. at 2.) Plaintiff himself makes no
reference to any harassment in the very email that prompted Ellsworth’s response. In its
construction of this email exchange, GP is correct, and the email cannot be construed as embedded
with an admission on the part of Ellsworth that Plaintiff had once been harassed.15 An implausible
extrapolation, not a reasonable construal, forms the heart of Plaintiff’s case as to this issue, and
such conjecturing cannot withstand Rule 12’s scrutiny.

15

Not only does Ellsworth’s email contain no admission of the alleged harassment, the email contains no evidence of
harassment towards Plaintiff.

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ii. Whether the NLRA Controls Plaintiff’s Harassment Claims
Here, Plaintiff has broadly asserted in his Amended Complaint that the harassment he
allegedly suffered “was not in response to the NLRB charges” and that “the NLRB charges at most
exacerbated the situation.” (Doc. 35 ¶ 30 at 2.) Plaintiff claims that he was harassed based on his
“refusal to allow the [U]nion and company to sweep aside a ratified agreement that he was working
under[.]” (Id.) Additionally, Plaintiff claims he was harassed because he withdrew from the
Union.16 (Id.) Conversely, GP reasons that Plaintiff’s allegations concern conduct covered by
Section 7 and 8 of the NLRA. (Doc. 41-1 at 8-9.)
“As a general rule, federal courts do not have jurisdiction over activity which is arguably
subject to Section 7 or 8 of the [NLRA], and they must defer to the exclusive competence of the
National Labor Relations Board.” U.A. 198 Health & Welfare, Educ. & Pension Funds v. Rester
Refrigeration Serv., Inc., 790 F.2d 423, 425 (5th Cir. 1986) (internal citations and quotations
omitted). “The rationale for deference of state and federal courts to the competence of the [National
Labor Relations] Board is to avert interference with national labor policies.” McDonald v. Oliver,
525 F.2d 1217, 1230 (5th Cir. 1976) (citations omitted). From this policy, two different types of
preemption have sprung even though the NRLA actually has no express preemption provision.
Chamber of Commerce of U.S. v. Brown, 554 U.S. 60, 65, 128 S. Ct. 2408, 2412, 171 L. Ed. 2d
264 (2008). While the second is irrelevant here, Garmon preemption “is intended to preclude state
interference with the National Labor Relations Board’s interpretation and active enforcement of
the integrated scheme of regulation established by the NLRA.” Id. As construed, it did not,
however, “displace those areas where the States traditionally have had great latitude under their

16

The Court need not address Plaintiff’s allegation that he requested the NLRB to investigate whether he ever joined
the Union because the Union withdrew six months’ worth of union dues from his paycheck. Plaintiff admits in his
Amended Complaint that this grievance was resolved by the NLRB when the Union was directed to return six months’
worth of dues. (Doc. 35 at 2 ¶ 30).

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police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all
persons.” Retail Prop. Trust v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 938, 951
(D.C. Cir. 2014) (internal quotations and citations omitted).
As precedent establishes, the breadth of two section of the NLRA factor in this analysis.
Section 7 provides:
Employees shall have the right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and shall also have the right to refrain
from any or all of such activities except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a condition of
employment as authorized in section 158(a)(3) of this title.
29 U.S.C. § 157; BE&K Constr. Co. v. NLRB, 536 U.S. 516, 536, 122 S. Ct. 2390, 2402, 153 L.
Ed. 2d 499 (1992) (quoting Section 7). Section 8 prohibits employers from engaging in unfair labor
practices. 29 U.S.C. § 158(a)–(b); Retail Prop. Trust, 768 F.3d at 950. In an example pertinent to
this case, Section 8 deems it an unfair labor practice for an employer “to interfere with, restrain,
or coerce employees in the exercise of the rights guaranteed in [S]ection 7.” 29 U.S.C. § 158(a)(1);
Int’l Longshoremen’s Ass’n v. Davis, 476 U.S. 380, 384 n.3, 106 S. Ct. 1904, 1908 n.3, 90 L. Ed.
2d 389 (1986) (citing id.). It is also an unfair labor practice for an employer “by discrimination in
regard to hire or tenure of employment or any term or condition of employment to encourage or
discourage membership in any labor organization[.]” 29 U.S.C. § 158(a)(3).
As to labor organizations, it is an unfair labor practice under Section 8 of the NLRA for “a
labor organization or its agents to restrain or coerce . . . employees in the exercise of the rights
guaranteed in” Section 7 of the NLRA. 29 U.S.C. §158(b)(1). Further, it is an unfair labor practice
for a labor organization
to cause or attempt to cause an employer to discriminate against an employee in
violation of subsection (a)(3) … or to discriminate against an employee with respect
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to whom membership in such organization has been denied or terminated on some
ground other than his failure to tender the periodic dues and the initiation fees
uniformly required as a condition of acquiring or retaining membership.
29 U.S.C. §158(b)(2).
Here, the Court agrees with GP that Plaintiff’s allegations arguably are subject to Section
7 or 8, thereby leaving this Court without subject-matter jurisdiction, for two separate reasons.
First, Plaintiff alleges that the Defendants swept aside the ratified agreement under which
the Plaintiff was working. It appears that Plaintiff’s complaint concerns the Defendants’ “return to
the CBA” in or around December 2012. (Doc. 2 ¶ 7 at 5.) This Court has already explained that
this allegation is time-barred. (See Doc. 32 at 9; Doc. 34 at 9.) It therefore need not re-address this
issue despite Plaintiff’s effective reincorporation.
Second, Plaintiff alleges that he withdrew from the Union for lack of representation. (Doc.
35 ¶ 30 at 2.) Even if this allegation did not arise out of Plaintiff’s filing of NLRB charges, as
Plaintiff asserts in his Amended Complaint, Plaintiff’s fatal problem remains. To wit, his
withdrawal arguably contemplates activity under Section 7 and 8 of the NLRA because such an
action concerns Plaintiff’s refusal to participate in the Union.17

17

The Court notes that Plaintiff does assert in his Amended Complaint that he suffered “physical violence” after
returning to the day crew and “filed formal charges with the company for workplace violence, fearing for his safety
in a hostile Union environment.” (Doc. 35 at 3 ¶ 30.) While this statement alone appears conclusory, Plaintiff’s original
Complaint sheds light on this allegation. In his original Complaint Plaintiff alleges that when he was relieving another
shift, a mechanic “began to curse [at] [him] vituperatively, and to physically intimidate [him] with his size [by] leaning
forward into [his] face with opening threatening gestures.” (Doc. 2 at 9 ¶ 22.) While the Court did not directly address
this particular claim in its previous orders, this allegation, based on Plaintiffs pleadings, relates to Plaintiff’s filing of
NLRB charges. In Plaintiff’s original Complaint he alleged that “[s]ince August of 2013, when he filed NLRB charges,
[he] has been a target of continuous harassment by Union members through the facility.” (Id. at 7 ¶ 15.) The alleged
altercation with the mechanic took place on February 2014. (Id. at 9 ¶ 22.) As noted above, Plaintiff broadly asserts
in his Amended Complaint that the harassment he suffered was not related to his filing NLRB charges. (Doc. 35 at 2
¶ 30.) However, Plaintiff offers no facts to support this conclusory, and contradictory, statement in his Amended
Complaint. As Plaintiff alleged that the harassment was continuous since August of 2013, when he filed NRLB
charges, this alleged “physical violence” stems from Plaintiff’s filing charges with the NLRB. As the Court explained
in its previous rulings, it lacks jurisdiction over harassment claims stemming from Plaintiff filing NLRB charges.

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Thus, as Plaintiff’s additional harassment claims are arguably subject to Section 7 or 8 of
the NLRA, this Court lacks jurisdiction over these claims. As such, Plaintiff’s claims must be
dismissed.

b. Exhaustion of the Grievance Procedure in the Collective Bargaining
Agreement
Here, Plaintiff contends that he has fully “amended his [c]omplaint to cure [the] defect ...
that [he] has failed to allege that he at least attempted to exhaust the grievance procedure in the
collective bargaining agreement[.]” (Doc. 35 at 1 ¶ 29.) However, as both Defendants correctly
argue, Plaintiff makes no such allegation. Plaintiff alleges in his Amended Complaint that a
different procedure was used to average his time into the overtime board. (Id.) Plaintiff asserts that
this was “evidence of … harassment” (Id. at 1-2 ¶ 29 emphasis added.) and does not discuss any
grievance procedures beyond his conclusory statement that he cured this defect.
Plaintiff does assert in one of his Oppositions that “[a]ny alleged failure to exhaust the
remedies established by the CBA with respect to his claim based on the overtime board is due to
the acts and omission of the [D]efendants.” (Doc. 43 at 5.) Even so, Plaintiff has failed to allege
in his Amended Complaint any facts that would support such an argument. Plaintiff specifically
alleged that he was harassed, not that the Defendants acted in any way that prevented him from
attempting to exhaust the grievance procedures in the collective bargaining agreement.
In the end, though given a second opportunity to do so, Plaintiff has failed to amend his
complaint to allege that he at least attempted to exhaust the grievance procedure in the collective
bargaining agreement. Because of this failure to meet a statutory prerequisite, Plaintiff’s claim
cannot survive as a matter of law. Accordingly, Plaintiff’s claim with respect to the overtime board
is dismissed with prejudice.
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c. Whether Plaintiff’s State Law Claims are Preempted
Apart from the foregoing allegations, Plaintiff claims that “[t]he totality of the facts and
circumstances in this case constitute a violation of Louisiana’s Right to Work law.” (Doc. 35 ¶ 32
at 3.)
In response, both Defendants argue that such a claim is preempted by § 7 and 8 of the
NLRA. See supra Part IV. The Union argues that Section 14(b) of the Taft-Harley Act, encoded
in 29 U.S.C. § 164(b), “allows states to prohibit union security clauses.” (Doc. 40-1 at 5-6.) In this
case, however, “[n]o security clause is involved.” (Id. at 6.) As a result, Plaintiff’s claim under the
LRWL is preempted—or so the Union asserts. GP goes slightly further, contending that Plaintiff
has “fail[ed] to allege the existence of a union security agreement[.]” (Doc. 41-1 at 12.)
Plaintiff disagrees and insists that “[g]iven the totality of facts and circumstances, de facto
there is a union security agreement involved[.]” (Doc. 44 at 6). Not perfectly phrased, Plaintiff’s
argument is essentially that his state law claims are not preempted because states are allowed to
regulate union security agreements. To the extent such an exception exists, the Union argues that
no union security agreement is implicated here, for Plaintiff withdrew from the Union on January
4, 2013, and continued to work for GP until his voluntary retirement on September 15, 2014. (Doc.
46 at 3.)
Here, the Court agrees with Defendants. Section 14(b) of the Taft-Harley Act provides that:
Nothing in [the National Labor Relations Act] shall be construed as authorizing the
execution or application of agreements requiring membership in a labor
organization as a condition of employment in any State or Territory in which such
execution or application is prohibited by State or Territorial law.
29 U.S.C. § 164(b). The Eastern District of Michigan has explained this statute’s effect in the
clearest terms:
26 of 30

Section 14(b) limits the preemptive effect of federal law by preserving state power
over certain union-security arrangements. . . . But its potency is limited. Designed
primarily to limit the implications flowing from Section 8(a)(3), which expressly
permits union shop and agency shop arrangements, Section 14(b) permits states to
regulate only the execution and enforcement of union-security agreements. . . .
States may not, for instance, regulate pre-hiring conduct subject to federal
regulation even if aimed at establishing a union-security arrangement prohibited by
state law. . . . And states may not regulate post-hiring conduct unrelated to the
validity of a union-security agreement.
Michigan State AFL-CIO v. Callaghan, 15 F. Supp. 3d 712, 717–18 (E.D. Mich. 2014) (citations
and internal quotation marks omitted). Like other states, see Matthew Dimick, Labor Law, New
Governance, and the Ghent System, 90 N.C. L. REV. 319, 353 (2012) (tracing the history and effect
of the Taft-Hartley Act), Louisiana enshrined a certain policy in response to the Taft-Harley Act:
It is hereby declared to be the public policy of Louisiana that all persons shall have,
and shall be protected in the exercise of the right, freely and without fear of penalty
or reprisal, to form, join and assist labor organizations or to refrain from any such
activities.
LA. R.S. § 23:981; Davis v. Henry, 555 So. 2d 457, 462–63 (La. 1990) (citing id.). A related
subsection adds:
No person shall be required, as a condition of employment, to become or remain a
member of any labor organization, or to pay any dues, fees, assessments, or other
charges of any kind to a labor organization.
La. R.S. § 23:983; Apex Personnel Consultants, Inc. v. Laborde, 413 So. 2d 524, 525 (La. Ct. App.
1982) (citing id.). These laws reflect the well-established recognition that “state courts have
jurisdiction to enforce state right-to-work laws, that is, laws prohibiting or regulating union
security agreements.” Johnson v. Elec. Sales Serv. Co., 363 So. 2d 716, 718 (La. App. 4th Cir.
1978). Logically (and pivotally), a union security agreement, whether express or implicit, must be
shown. Johnson, 363 So. 2d at 718; see also Sweeney v. Pence, 767 F.3d 654, 659–60 (7th Cir.
2014) (reading, based on Supreme Court precedent, “Section 14(b) as protecting states’ authority
to enact laws prohibiting union-security arrangements that are permissible under Section 8(a)(3)
27 of 30

and other provisions of the NLRA”). More specifically, for Rule 12(b)’s purposes, such a de facto
entity must be plausibly alleged and be supported by factual, not conclusory, allegations.
Here, Plaintiff argues that a “de facto” union security agreement exists, but Plaintiff offers
little to help explain how he was ever subject to a “de facto” union security agreement. Instead, as
the Union convincingly points out, Plaintiff’s own factual allegations starkly contradict any such
belief. The reason is obvious, apparent from Plaintiff’s papers: for more than a year after
withdrawing from the Union, he was able to continue working at GP until his retirement. A handful
of facts bear this out, no plausible claim reasonably derivable. Plaintiff resigned from the Union
on January 4, 2013. (Doc. 2 ¶ 9 at 5.) While Plaintiff alleges that he had to “terminate his
employment with Georgia Pacific in September 2014” because of an allegedly “hostile Union
environment,” (Doc. 35 ¶ 30 at 3), the email Plaintiff actually sent “Millwide” provides that he
was able to reach his “long term goal” of retirement after nearly thirty (30) years with GP. No “de
facto” union security agreement could have existed under these circumstances, as Plaintiff
evidently worked from leaving the Union in January 2013 to retirement in September 2014. His
absence from the Union, then, had no noticeable effect on his tenure; in forsaking one (the Union),
he was not forced to leave the other (GP) as an automatic consequence. Instead, whether happily
or not, he remained for more than one year and eight months as GP’s employee. That gap of 619
days from his renunciation of membership in the Union and his retirement, never alleged to be
involuntary in Plaintiff’s various filings, from GP negates the very possibility of a de facto union
security agreement. The facts alleged, in short, show this legal claim to be implausible and thus
entirely subject to dismissal under Rule 12(b).18

18

Even if a “de facto” union security agreement existed, as Plaintiff argues, there is little case law developed regarding
state law regulations against “de facto” agreements and federal preemption. See Callaghan, 15 F. Supp. 3d at 719
(explaining that a state law regulation “prohibiting coercion aimed at establishing a de facto union-security agreement

28 of 30

Thus, because Plaintiff was able to continue working after withdrawing from the Union,
no union security agreement exists in this case. With this exception inapplicable, preemption must
follow. Therefore, Plaintiff’s claim under LRWL must be dismissed.19

VII.

Whether Dismissal with Prejudice is Appropriate.
GP has argued that Plaintiff’s case “should be dismissed with prejudice.” (Doc. 41-1 at 13.)
The Fifth Circuit has explained that:
A dismissal under Rule 12(b)(1) is a dismissal for lack of subject-matter
jurisdiction. “A dismissal with prejudice is a final judgment on the merits.” Brooks
v. Raymond Dugat Co., 336 F.3d 360, 362 (5th Cir. 2003) (citing Schwarz v.
Folloder, 767 F.2d 125, 130 (5th Cir. 1985)); see also Boudloche v. Conoco Oil
Corp., 615 F.2d 687, 688 (5th Cir. 1980). Accordingly, to dismiss with prejudice
under Rule 12(b)(1) is to disclaim jurisdiction and then exercise it. Our precedent
does not sanction the practice… Cf. Heaton v. Monogram Credit Card Bank of
Georgia, 231 F.3d 994, 1000 (5th Cir. 2000) (“The district court properly
concluded that it did not have jurisdiction but it erred in granting summary
judgment and dismissing with prejudice. Since the court lacked jurisdiction over
the action, it had no power to render a judgment on the merits.”); Boudloche, 615
F.2d at 688; Mills v. Harmon Law Offices, P.C., 344 F.3d 42, 45 (1st Cir. 2003)
(“[T]he point of section 1447(c) is that a federal court does not have the authority
to dismiss a claim over which it never had jurisdiction in the first instance. The
merits of the ... claim are therefore irrelevant to this determination.” (quoting Smith
v. Wis. Dep't of Agric., Trade & Consumer Prot., 23 F.3d 1134, 1139 n. 10 (7th Cir.
1994) (internal quotation marks omitted) (alteration and omission in original));
Christopher v. Stanley–Bostitch, Inc., 240 F.3d 95, 100 (1st Cir. 2001) (“When a
federal court concludes that it lacks subject matter jurisdiction over a case, it is
precluded from rendering any judgments on the merits of the case.”)); but cf. U.S.
ex rel. Batiste v. SLM Corp., 659 F.3d 1204, 1211 (D.C. Cir. 2011) (relying on a
12(b)(6) case to find waiver).

. . . might be susceptible to a preemption challenge”). As as Plaintiff was able to continue working until he reached
retirement, the Court need not address this seemingly unsettled and rarely confronted question.
19

That Court notes that in Plaintiff’s Amended Complaint, he asked for this Court “to remand the case to state court
where this matter was originally filed.” (Doc. 35 at 3 ¶ 33). However, Plaintiff did not separately file a motion to
remand for the Court to consider. Federal Rule of Civil Procedure 7 makes clear that a pleading is not a motion. See
also Waddell, v. Holiday Isle, LLC, CIV. A. 09-0040-WS-M, 2009 WL 2413668, at *4 n. 6 (S.D. Ala. Aug. 4, 2009)
(“a pleading is not a motion or brief” (citing Fed. R. Civ. P. 7(a))). Thus, Plaintiff’s request for a remand is not properly
before the Court and need not be addressed.

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Cox, Cox, Filo, Camel & Wilson, L.L.C. v. Sasol N.A., Inc., 544 F. App’x 455, 456-57 (5th Cir.
2013) (footnotes omitted).20 As Fifth Circuit precedent does not sanction the practice of finding a
lack of subject matter jurisdiction over a plaintiff’s claim and subsequently dismissing it with
prejudice, the Court declines to do so here.
VIII.

Conclusion
Accordingly,
IT IS ORDERED that Defendant’s Motions to Dismiss, (Docs. 40, 41), are GRANTED;
Defendants’ Motions to Dismiss are GRANTED in that Plaintiff’s harassment claims are

dismissed. This Court lacks subject matter jurisdiction over Plaintiff’s harassment claims because
they are arguably subject to Section 7 or 8 of the NLRA;
Defendant’s Motions to Dismiss are GRANTED in that Plaintiff’s claim with respect to
the overtime board averaging is dismissed with prejudice. Plaintiff has failed to amend his
complaint to allege that he at least attempted to exhaust the grievance procedure in the collective
bargaining agreement.
Defendant’s Motions to Dismiss are GRANTED in that Plaintiff’s state law claim under
the LRWL is dismissed. Louisiana’s Right to Work law is preempted by the NLRA because, as
Plaintiff was able to work after leaving the Union, no “de facto” union security agreement exists.
Signed in Baton Rouge, Louisiana, on December 21, 2015.

S

_________________________________ 
JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

20

As noted by the Fifth Circuit, “[a] district court may … specifically dismiss with prejudice to relitigating a question
of federal jurisdiction—i.e., with prejudice to relitigating a non-merits issue.” Cox, 544 Fed. Appx. at 457 n. 5.

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