NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT
                __________________________

                         No. 15-1690
                 __________________________

            JAMES HUGHES; MELISSA HUGHES;
         JOHN K. HUGHES; BEVERLY HUGHES,
                           Appellants

                            v.

             UNITED PARCEL SERVICE, INC;
          INTERNATIONAL BROTHERHOOD OF
        TEAMSTERS, LOCAL 623; JOHN DOES 1-10
                      ______________

    APPEAL FROM THE UNITED STATES DISTRICT COURT
      FOR THE EASTERN DISTRICT OF PENNSYLVANIA
             (D.C. Civ. Action No. 2-14-cv-03822)
          District Judge: Honorable R. Barclay Surrick
                         _____________

           Submitted Under Third Circuit L.A.R. 34.1(a)
                       January 21, 2016
                       ______________

Before: JORDAN, HARDIMAN, and GREENAWAY, JR., Circuit Judges.

                (Opinion Filed: February 1, 2016)
                                     ______________

                                        OPINION*
                                     ______________


GREENAWAY, JR., Circuit Judge.

       James Hughes and John K. Hughes (collectively, “Appellants”), along with their

respective spouses, appeal from the dismissal of their complaint pursuant to the Rule

12(b)(6) Motion filed by Appellees, United Parcel Service, Inc. (“UPS”), and the

International Brotherhood of Teamsters, Local 623 (“Teamsters”). For the reasons set

forth below, we will affirm the judgment of the District Court.

                                   I. BACKGROUND

       Appellants are employees of UPS and members of the Teamsters union.

Appellants had worked for UPS as part-time “air drivers” for twelve years and attained an

hourly pay rate of $23.70 when, in January 2012, they learned that full-time positions

were opening. Appellants allege that they asked certain members of the Teamsters

whether their rate of pay would change if they became full-time employees and were told

that it would not. “Based on these representations, the collective bargaining agreement

[(“CBA”)], and the job descriptions for the full-time positions, [Appellants] applied for

and were hired by Defendant, UPS[,] for full-time employment as air drivers.” (App.

25.) When they received their first paycheck as full-time employees, Appellants

       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.




                                            2
discovered that their hourly rate of pay had dropped to $13.50 and that their seniority had

been eliminated.

       Upon discovering the reduction in their rate of pay, Appellants “immediately

contacted UPS” and were told that “their previous wages would not be restored.” (App.

26.) Appellants allege that they contacted the National Labor Relations Board, which

was unable to help, and filed grievances with the Teamsters.1

       On June 4, 2014, Appellants and their spouses filed a state court complaint against

UPS and the Teamsters, in which they alleged breach of contract (Count One); violation

of Pennsylvania Wage and Payment Collection Law (Count Two); unjust enrichment

(Count Three); loss of consortium (Count Four); and violation of the Fair Labor

Standards Act (“FLSA”), 29 U.S.C. §§ 201–219 (Count Five).2

       On June 19, 2014, the Teamsters removed the matter to the United States District

Court for the Eastern District of Pennsylvania on the ground that Appellants’ claims all

arose under the CBA and were thus preempted by Section 301 of the Labor Management

Relations Act (“LMRA”), 29 U.S.C. § 185 (“Section 301”).3 The Teamsters then moved



       1
         Appellants have not argued that they complied with the grievance procedure set
forth in Article 49 of the CBA, discussed below.
       2
       Appellants ultimately withdrew the claims alleged in Count Five in their
omnibus response to Appellees’ motions to dismiss.
       3
         Section 301 confers federal jurisdiction on claims arising under CBAs. See N.J.
Carpenters & Trs. Thereof v. Tishman Constr. Corp. of N.J., 

, 302 (3d Cir.
2014) (noting that “complete preemption ‘operates to confer original federal subject
matter jurisdiction notwithstanding the absence of a federal cause of action on the face of
the complaint,’” and that Section 301 of the LMRA is one of only three examples of



                                         3
to dismiss, and Appellants amended their complaint. Both the Teamsters and UPS

moved to dismiss Appellants’ amended complaint pursuant to Rule 12(b)(6). 4

       On March 6, 2015, the District Court granted Appellees’ motion and dismissed

Appellants’ complaint with prejudice. Hughes v. United Parcel Serv., Inc., No. CIV.A.

14-3822, 

, at *7 (E.D. Pa. Mar. 6, 2015). The Court determined that,

although Appellants did not attach the CBA, the CBA was “integral to and explicitly

relied upon” in the complaint. 

Thus, the Court considered the CBA, which

UPS attached to its motion in full and which the Teamsters attached in part. 

Court determined that Appellants’ claims arose out of their

employment relationship, which is governed by the CBA, and that the claims are

therefore preempted by Section 301. 

Because federal labor law “requires

that individual employees wishing to assert contract grievances must attempt use of the

contract grievance procedure agreed upon by the employer and union as the mode of

redress,” 

(quoting Republic Steel Corp. v. Maddox, 

, 652 (1965)),

the District Court determined that Appellants “were first required to exhaust their

available administrative remedies prior to initiating this suit,” 

complete preemption that the Supreme Court has recognized) (quoting In re U.S.
Healthcare, Inc., 

, 160 (3d Cir. 1999).)
       4
        All references to the complaint in this opinion will be to the amended complaint,
which did not differ substantially from the original complaint.


       5
        Although the District Court uses the term “administrative remedies,” that might
be seen as a misnomer. The District Court’s reference is to the CBA grievance
procedure, which is a contractual remedy, different in kind from the government-



                                            4
       The Court thus dismissed Appellants’ state-law claims for failure to exhaust the

remedies available under the CBA. 

also dismissed the loss of consortium

claims asserted by Appellants’ spouses, because those derivative claims could not

proceed independently of Appellants’ claims. 

determined, finally, that

granting Appellants leave to amend their complaint would be futile given the dispositive

nature of Appellants’ failure to exhaust the remedies available under the CBA. 

accordingly dismissed Appellants’ claims with prejudice. 

This timely

appeal followed.

                   II. JURISDICTION & STANDARD OF REVIEW

       The District Court had jurisdiction over this case pursuant to 28 U.S.C. § 1331.

This Court has jurisdiction under 28 U.S.C. § 1291.

       We review a district court’s decision to grant a motion to dismiss pursuant to Rule

12(b)(6) de novo. Kaymark v. Bank of Am., N.A., 

, 174 (3d Cir. 2015).

Thus, “we accept all factual allegations as true, construe the complaint in the light most

favorable to the plaintiff, and determine whether, under any reasonable reading of the

complaint, the plaintiff may be entitled to relief.” F.T.C. v. Wyndham Worldwide Corp.,

, 242–43 (3d Cir. 2015) (quoting Pinker v. Roche Holdings Ltd., 

, 374 n.7 (3d Cir. 2002)).

       “[C]onclusory or ‘bare-bones’ allegations will no longer survive a motion to

dismiss.” Fowler v. UPMC Shadyside, 

, 210 (3d Cir. 2009) (citing Ashcroft


provided administrative procedures and remedies one often thinks of when hearing the
term “administrative remedies.”



                                          5
v. Iqbal, 

, 678 (2009)). Rather, “[t]o prevent dismissal, all civil complaints

must now set out ‘sufficient factual matter’ to show that the claim is facially plausible.”

556 U.S. at 678).

                                        III. ANALYSIS

       Appellants raise three arguments on appeal. First, they contend that the District

Court erred in considering the CBA because it was neither attached to nor integral to the

complaint.6 Second, they assert that what they seek to litigate is an extra-CBA promise

to pay that is not preempted by Section 301, and that the District Court should thus have

remanded the case to state court in lieu of dismissing it. Finally, Appellants contend that

they should have been granted leave to amend their complaint, to cure any perceived

deficiencies. For the reasons set forth below, these claims are unavailing.

A. Consideration of the CBA

       “In deciding a Rule 12(b)(6) motion, a court must consider only the complaint,

exhibits attached to the complaint, matters of public record, as well as undisputedly

authentic documents if the complainant’s claims are based upon these documents.”

Mayer v. Belichick, 

, 230 (3d Cir. 2010). Even if a plaintiff does not attach

the subject documents to the complaint, the court may consider them if a defendant



       6
         Appellants also assert that the Court should not have considered the CBA
because “movants’ motion did not attach the entirety of the CBA upon which there [sic]
Respondents, Hughes’ [sic] could argue from the CBA contrarily.” (Appellants’ Br. 19.)
Although the Teamsters proffered only portions of the CBA, UPS attached a complete
copy of the agreement to its motion to dismiss. After UPS filed that motion, Appellants
filed both a response and a sur-reply. Appellants thus had ample opportunity to argue
“contrarily,” and this argument is without merit.



                                           6
attaches them to a motion to dismiss. Pension Benefit Guar. Corp. v. White Consol.

Indus., Inc., 

, 1196 (3d Cir. 1993).

       “[A] ‘document integral to or explicitly relied upon in the complaint’ may be

considered ‘without converting the motion to dismiss into one for summary judgment.’”

Schmidt v. Skolas, 

, 249 (3d Cir. 2014) (quoting In re Burlington Coat

Factory Sec. Litig., 

, 1426 (3d Cir.1997)). When a plaintiff relies on a

document without attaching it to the complaint, the plaintiff nevertheless has notice that

the document will be at issue. 

to the plaintiff is the principal reason for which courts decline to

look beyond the complaint, the consideration of documents upon which the plaintiff

relies does not implicate this rationale. 

to consider such documents

would raise the countervailing concern that “a plaintiff with a legally deficient claim

could survive a motion to dismiss simply by failing to attach a dispositive document on

which it relied.” Pension Benefit Guar. 

.

       Appellants contend that their complaint did not rely on the CBA. However, the

complaint provides that, “[a]t all times material, Plaintiffs [sic] employment with

Defendants was subject to a [CBA]. [In possession of Defendants].” (App. 26 (third

bracketed phrase in original).) Appellants incorporated this statement in each of the

counts alleged, and the dispute unquestionably arises out of Appellants’ employment.

       Appellants’ complaint demonstrates awareness of the CBA, mooting concerns of

notice. Failure to consider this potentially dispositive document—invoked but not

attached by Appellants—would raise the concerns addressed in Pension Benefit Guaranty




                                         7


. We therefore find that the District Court did not err in

considering the parties’ CBA.

B. Effect of the CBA

       Consideration of the CBA, in turn, quickly reveals that the District Court also

correctly dismissed Appellants’ complaint.

       Section 301 provides:

              Suits for violation of contracts between an employer and a
              labor organization representing employees in an industry
              affecting commerce as defined in this chapter, or between any
              such labor organizations, may be brought in any district court
              of the United States having jurisdiction of the parties, without
              respect to the amount in controversy or without regard to the
              citizenship of the parties.

29 U.S.C. § 185(a). Section 301 completely preempts state-law claims that require

interpretation of CBAs, Voilas v. Gen. Motors Corp., 

, 373–74 (3d Cir.

1999) (citing Caterpillar, Inc. v. Williams, 

, 394–95 (1987)), and converts

the state-law claims into Section 301 claims to which “the statute of limitations for

section 301 applies.” Berda v. CBS Inc., 

, 28 (3d Cir. 1989).

       This Court has recognized that, as a general matter, an employee who wishes to

press contract-based grievances must endeavor to follow the grievance procedure upon

which the employer and the union agreed prior to seeking judicial relief. Seborowski v.

Pittsburgh Press Co., 

, 168 (3d Cir. 1999) (citing Republic Steel 

; Vaca v. Sipes, 

, 184 (1967)). More specifically, an employee

who alleges that “the employer breached the [CBA] ‘is bound by terms of that agreement

which govern the manner in which contractual rights may be enforced. For this reason, it




                                           8
is settled that the employee must at least attempt to exhaust exclusive grievance and

arbitration procedures established by the bargaining agreement.’” Crafts v. Gen. Motors

Corp., 

, 317 (D. Del. 2002) (quoting 

); accord

McCoy v. Maytag Corp., 

, 524 (7th Cir. 2007) (“It is well settled that if a

CBA establishes a grievance and arbitration procedure for the redress of employee

complaints, employees wishing to assert claims based on a CBA first must exhaust the

grievance procedure before resorting to a judicial remedy.”).

         The CBA that governs Appellants’ employment delineates grievance procedures

for “any controversy, complaint, misunderstanding or dispute arising as to interpretation,

application or observance of any of the provisions of this Agreement or Supplements

hereto.” (App. 73.) Appellants’ allegations that they called the NLRB and filed

grievances with the Teamsters do not satisfy the multi-step processes set forth in the

CBA. As the District Court noted, Appellants “have failed to exhaust the administrative

remedies available to them under the terms of the CBA.” Hughes, 

, at

*6. Appellants’ state-law claims were thus properly dismissed, as were their spouses’

claims for loss of consortium, which “must rise or fall” with the primary claims on which

they depend. Banks v. Int’l Rental & Leasing Corp., 

, 300 n.6 (3d Cir.

2012).

C. Dismissal with Prejudice

         Although Appellants now characterize the source of the dispute as “[a]n extra-

CBA promise to pay,” (Appellants’ Br. 15), the CBA controls the terms of Appellants’

employment, including their rate of pay. Indeed, Appellants framed their complaint




                                          9
against the backdrop of the CBA, including a claim for breach of that agreement, as

discussed above. It was not until their sur-reply brief that Appellants suggested their

claim should be construed to involve this alleged “extra-CBA promise.” Hughes, 

, at *6 n.3.

       As this Court has noted, “[i]t is one thing to set forth theories in a brief; it is quite

another to make proper allegations in a complaint.” Pa. ex rel. Zimmerman v. PepsiCo,

Inc., 

, 181 (3d Cir. 1988). “[I]t is axiomatic that the complaint may not be

amended by the briefs in opposition to a motion to dismiss.” 

original)

(quoting Car Carriers, Inc. v. Ford Motor Co., 

, 1107 (7th Cir. 1984)).

Further, Appellants did not raise this argument in their response brief, but only in their

sur-reply, which is not permissible. Cf. United States v. Hoffecker, 

, 163 (3d

Cir. 2008) (noting that failure to raise argument in opening brief constitutes waiver

thereof). The District Court did not err in declining to consider Appellants’ “extra-CBA

promise” theory, which was not properly pled.

       Nor did the District Court abuse its discretion in dismissing the complaint with

prejudice. See U.S. ex rel. Zizic v. Q2Administrators, LLC, 

, 234 (3d Cir.

2013) (“[W]e review the District Court’s dismissal of [a] complaint with prejudice for an

abuse of discretion.” (citation omitted)). “[I]f a claim is vulnerable to dismissal under

Rule 12(b)(6), but the plaintiff moves to amend, leave to amend generally must be

granted unless the amendment would not cure the deficiency.” Shane v. Fauver, 

, 115 (3d Cir. 2000).




                                          10
       Here, to the extent that Appellants assert an “extra-CBA promise,” that promise

was allegedly made by two officers of the Teamsters. But the Teamsters’ duties of fair

representation are limited to issues arising under the CBA by that document’s merger

clause, which provides that “during the lifetime of this Agreement there shall be no

demands for collective bargaining negotiations as to any matter or issue not covered by

the provisions of this Agreement or for the renegotiations of any of the provisions of this

agreement.” (App. 94.)

       In short, if the subject promise fell within the CBA, then amendment would be

futile in light of Appellants’ failure to exhaust the CBA-specified grievance procedure. If

the subject promise lies outside the CBA, then the claim is not actionable against the

party alleged to have made the promise, the Teamsters. Viewed in either light, dismissal

with prejudice was entirely appropriate.

                                   IV. CONCLUSION

       We find that Appellants’ arguments, as pled, are foreclosed by the CBA into

which they entered. We also determine that amendment to plead the alleged “extra-CBA

promise” would be futile. We therefore affirm.




                                           11