Full opinion text
FRANK A. KAUFMAN, Senior District Judge. Plaintiffs are sixty-two former employees of the Weirton Division of National Steel Corporation (“National”) who have brought suit against National for breach of contract, fraud, and intentional infliction of emotional distress. Each employee claims that he was offered the opportunity by National to move from a union position to a non-union management position, exempt under the Fair Labor Standards Act, and accepted the promotion only after National representatives made certain express or implied promises. Plaintiffs contend they were each told that in the event of a management layoff or in the event one of them could not handle the management position, or did not like -it, that employee could return to his prior hourly or nonexempt position. In addition, plaintiffs allege that each of them was promised that management layoffs would be based on an employee’s company date seniority (i.e., his date of hire) as applied company-wide, rather than upon the “exempt” seniority date (i.e., the date of promotion to the management position). At various times in 1982, each plaintiff was laid off based upon his management seniority date, and no plaintiff was permitted to return to his formerly-held union position. Plaintiffs assert that had they been permitted to return they would not have been laid off from the union positions based upon their company date seniority. Alternatively, they state that their layoffs would have been for shorter periods of time than occurred after their layoffs from exempt positions. In addition to their breach of contract claims, plaintiffs assert that National’s actions add up to fraudulent misrepresentations, and/or concealments designed to induce employees to accept management positions, and that, at the least, National committed a constructive fraud when it failed to notify plaintiffs that it was negotiating in 1980 with the bargaining units to prohibit the transfer of foremen and other employees promoted to management positions to their former union positions on the occasion of layoffs from management positions. Plaintiffs have filed a partial motion for summary judgment with regard to liability in connection with their breach of contract and fraud claims. Defendants have also filed a full motion for summary judgment. Both parties also filed supplemental motions for summary judgment relating to certain plaintiffs who were unintentionally omitted from certain counts in the complaint. This Court held several hearings with counsel — in Baltimore, Pittsburgh, and over the telephone — during which it requested and subsequently received extensive supplemental briefing. This opinion finalizes and clarifies this Court’s tentative holdings and findings during those hearings. The extensive allegations of the Second Amended Complaint, most of which are wide-ranging and detailed, are set forth in thirteen separate counts, each involving a different set of plaintiffs and distinct claims. The first four counts allege various breach of contract claims with respect to different groups of plaintiffs. In Count One certain plaintiffs assert: 70. In order to induce each of the aforesaid Plaintiffs to accept Defendant’s offer to leave his hourly position and become employed as a salaried employee, Defendant, through its authorized agents, servants, or employees, made the following express and/or implied promises to each of the aforesaid Plaintiffs: a. Future layoffs, terminations, and recalls specifically affecting each Plaintiff and pertaining to reduction and/or increase in the Defendant’s work force would be determined upon the presently existing seniority rights acknowledged by Plaintiffs and Defendants, including “company-date seniority,” which date was agreed upon as the date such Plaintiff commenced his initial hourly, rather than subsequent salaried employment with the Defendant; b. Defendant would effectuate, apply, enforce, and maintain its promise to each Plaintiff that his “company date seniority” would be utilized as company-wide seniority, rather than departmental or job seniority; c. Each Plaintiff would also have the option of returning to an hourly position in the event of future reductions in the Defendant’s salaried work force based upon company date and company-wide seniority; d. Defendant would ensure that each Plaintiff’s acceptance of its offer of a salaried position would not result in any loss of company-wide seniority or otherwise jeopardize such Plaintiff’s continued company-wide employment with Defendant; e. Each Plaintiff would be laid off, terminated, and/or recalled in accordance with his seniority on a company date and company-wide seniority basis; f. Defendant would deal fairly and act in good faith regarding all aspects of Plaintiff’s employment; g. Defendant would continue to employ Plaintiffs until mandatory retirement age unless Defendant had specific, just, and lawful cause to terminate Plaintiffs. The actions giving rise to the alleged breaches are listed in Count One at paragraph 73: 73. On or about August 1, 1980, and thereafter Defendant breached its promise to Plaintiffs by unilaterally: a. Amending each Plaintiff’s existing seniority rights: b. Reducing each Plaintiff’s company date and company-wide seniority to salary date and salaried exempt seniority; c. Failing to effectuate, apply, enforce, and maintain each Plaintiff’s “company-date seniority” as company-wide seniority; d. Rescinding each Plaintiff’s right of option to return to an hourly position in the event of reduction in Defendant’s salaried work force; e. Jeopardizing each Plaintiffs continued company-wide employment; f. Rescinding each Plaintiffs right to be laid off, terminated, and/or recalled in accordance with seniority on a company date and company-wide seniority basis; g. Acting unfairly and in bad faith regarding aspects of each Plaintiffs employment, including but not limited to failing to provide various Plaintiffs reasonable prior or subsequent notice and opportunity to return to an hourly position; h. Rescinding each Plaintiffs right to continued employment until retirement by reason of Defendant’s aforementioned acts and conduct in “a” through “g.” Count One does not refer to any rights or obligations stemming from any collective bargaining agreement (“CBA”). However, as discussed infra, plaintiffs allege that their right to return to the hourly work force was obtained as an express or implied promise from National when each Count One plaintiff accepted a management position. In Count Two, certain plaintiffs essentially reassert the same type of claims alleged in Count One by other plaintiffs, except that Count Two does not state allegations that National promised the Count Two plaintiffs that they had an option to return to an hourly position. Count Three restates the Count One allegations regarding promises made to the Count Three plaintiffs, including the promise of a return option to the nonexempt salaried ranks. Count Four reasserts essentially the allegations in Count One regarding the Count Four plaintiffs, and also asserts that National promised that hourly employees would not replace any Count Four plaintiff while any such plaintiff was laid off. There is no allegation in Count Four of a promise to return a Count Four plaintiff to the nonexempt salaried ranks in the event of a management layoff, since no Count Four plaintiff was ever employed as nonexempt personnel. Count Five alleges fraudulent misrepresentations by National to most but not all of the plaintiffs. Count Five plaintiffs assert that National agents told them that they could always return to the bargaining units when, in fact, National’s policy at the time of such statements was that plaintiffs had no right under any circumstances to return to the bargaining unit. The Count Six plaintiffs also allege fraud on the part of National for its alleged failure to disclose that National’s layoff policy did not list company time as the seniority determinant for management layoffs. The plaintiffs in Counts Seven and Eight allege constructive fraud, specifically that National allegedly failed to notify these plaintiffs that it intended to negotiate a provision in the CBAs which would prohibit plaintiffs from returning to the bargaining units in the event of layoffs. Count Nine alleges a breach of National’s alleged promise that all management layoffs would be governed by company time. Count Ten realleges the breach of contract claims in Counts One through Nine as independent torts. Count Eleven alleges the tort of outrageous conduct and intentional, wanton infliction of harm. Count Twelve alleges a claim of intentional infliction of emotional distress. Count Thirteen alleges a claim for violation of a substantial public policy of West Virginia. In this opinion, this Court addresses each of the legal issues present in this case in the context of the summary judgment motions filed by the parties and the teachings of Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A summary of the legal holdings and the disposition of the claims by each plaintiff in each count are set forth in an Order of even date with this opinion. CONTRACT CLAIMS National raises two affirmative defenses against plaintiffs’ contract claims — that is, the claims stated in Counts 1-4 of the Second Amended Complaint. First, National asserts that certain claims require interpretation of existing CBAs and therefore are preempted by federal labor law. Second, National contends that the West Virginia statute of frauds bars the enforcement of the contractual rights asserted by plaintiffs in those four counts. As to the first such contention, National, if its prevails in that connection, is entitled to summary judgment with respect to all preempted claims because plaintiffs asserting any such claims in this case did not institute this case before the running of the applicable six months’ limitations period. Preemption Under Federal Labor Law National argues that a number of the counts in the Second Amended Complaint which assert the existence of employment contracts rely in fact upon the right of plaintiffs to return to the bargaining units and exercise full seniority rights in those units. National maintains that resolution of those claims will require an interpretation and application of the terms of the CBAs relating to the units to which each plaintiff sought — or would have sought — to return, since the ultimate source of any right to return to a unit is a CBA. Because plaintiffs’ claims are so deeply intertwined with the CBAs, National contends that any contract or tort claim brought under state law which asserts a right to return to a collective bargaining unit is preempted by federal labor law. 29 U.S.C. § 185(a), better known as section 301 of the Labor-Management Relations Act (“LMRA”), provides in relevant part: 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 of the amount in controversy or without regard to the citizenship of the parties. The Supreme Court has noted that “[sjtate law does not exist as an independent source of private rights to enforce collective bargaining contracts,” quoting Avco Corp. v. Machinists, 376 F.2d 337, 340 (6th Cir.1967), aff'd, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968), and has concluded that when “[t]he heart of the [state law] complaint [is] a ... clause in the collective bargaining agreement,” the complaint arises under federal law. 390 U.S. at 558, 88 S.Ct. at 1236. Further, the Court emphasized that “Section 301 governs claims founded directly on rights created by collective-bargaining agreements, and also claims ‘substantially dependent on analysis of a collective-bargaining agreement.’ ” Caterpillar Inc. v. Williams, 482 U.S. 386, 394, 107 S.Ct. 2425, 2431, 96 L.Ed.2d 318 (1987), quoting Electrical Workers v. Hechler, 481 U.S. 851, 859 n. 3, 107 S.Ct. 2161, 2166-67 n. 3, 95 L.Ed.2d 791 (1987). In Caterpillar, the employees claimed that oral promises “created ‘a total employment agreement wholly independent of the collective bargaining agreement pertaining to hourly employees.’ ” 482 U.S. at 389, 107 S.Ct. at 2428 (quoting the complaint). Justice Brennan wrote that: “Section 301 says nothing about the content or validity of individual employment contracts,” and concluded 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. at 394-96, 107 S.Ct. at 2431 (emphasis in original). With regard to the company’s contention that “the state court will have to examine the collective bargaining agreement as part of its evaluation of the ‘totality of the parties’ relationship,’ ” Justice Brennan stated that the employees relied “on contractual agreements made while they were in managerial or weekly salaried positions — agreements in which the collective-bargaining agreement played no part.” Id. at 395 n. 9, 107 S.Ct. at 2431 n. 9. Therefore, since their complaint was “not substantially dependent upon interpretation of the collective-bargaining agreement^ nor did it] rely upon the collective agreement indirectly, nor [did] it address the relationship between the individual contracts and the collective agreement,” id., the employees’ claims were not preempted. In contrast, Electrical Workers v. Hechler, 481 U.S. 851, 107 S.Ct. 2161, 95 L.Ed.2d 791 (1987), quoted in Caterpillar, does present a situation in which the CBA played a critical role in the resolution of a claim. In Hechler, an electrical apprentice alleged a breach of duty against her union in a case originally brought in a state court and later removed to federal court. Justice Blackmun, noting that “a tort claim ‘inextricably intertwined with consideration of the terms of the labor contract’ is pre-empt-ed under Sect. 301,” 481 U.S. at 858, 107 S.Ct. at 2166 (quoting Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213, 105 S.Ct. 1904, 1912, 85 L.Ed.2d 206 (1985)), concluded that the source of the union’s duty to the employee would be found in the CBA, since common law imposed such a duty only on the employer. Since, therefore, “[i]n order to determine the Union’s tort liability ... a court would have to ascertain whether the collective-bargaining agreement in fact placed an implied duty of care on the Union ... and [determine] the nature and scope of that duty,” id., 481 U.S. at 862, 107 S.Ct. at 2168, “ ‘questions of contract interpretation ... underlie any finding of tort liability.’ ” Id. (quoting Allis-Chalmers, 471 U.S. at 218, 105 S.Ct. at 1915). The plaintiff in Hechler was accordingly held to be “precluded from evading the preemptive force of Sect. 301 by casting her claim as a state-law tort action.” Id. In situations in which employees bring suit under contracts allegedly formed separate from existing CBAs, case law suggests that preemption is appropriate when: (1) the facts demonstrate the employees relied upon the provisions of a CBA at the time the contract with the employer was made, and (2) the terms of the alleged contractual claim relate to the terms of employment in a union position, and the matter at issue is addressed in a CBA. In Holland v. National Steel Corp., 791 F.2d 1132 (4th Cir.1986), plaintiff, a former National employee, appealed, inter alia, from a grant of summary judgment as to her claim that, when she was promoted out of the bargaining unit to management, she and National had entered into an employment contract that guaranteed her the right to return. Judge Sprouse summed up her contract allegations: The gravamen of Holland’s claim is that she and National entered into an employment contract which provided her the right to return to hourly employment and that National’s subsequent collective bargaining agreement with the [Union] did not alter her personal contract. The district court found, however, that the basis of her previous right to return to hourly employment was the 1977 collective bargaining agreement between [the Union] and National, and that the 1980 agreement subsequently eliminated that right. We agree with the district court ... that National was entitled to summary judgment on the claim. 791 F.2d at 1134. The plaintiff in Holland, however, apparently relied upon her understanding of the return rights contained in the CBA as the basis for her right to return. There is no indication that Holland had entered into an oral or written contract with National which was wholly separate from the union agreement. Likewise, supervisory personnel in Cooper v. General Motors Corp., 651 F.2d 249 (5th Cir.1981), had relied on provisions of a CBA that permitted them to continue to use their seniority dates in the bargaining unit after being promoted to a non-unit position. The supervisors sued the union (for breach of the union’s duty of fair representation) and General Motors for agreeing to a new contract which eliminated those positions. Plaintiffs asserted no contract claim separate and apart from the union agreement regarding the seniority issue. In response to plaintiffs’ argument that their seniority rights had become vested under the earlier CBA, Judge Rubin noted that since “seniority rights are the creature of collective bargaining, we hold that what the contract confers, a later contract, validly made, may take away.” 651 F.2d at 249. The employees who sued in Bale v. General Telephone Co. of California, 795 F.2d 775 (9th Cir.1986), alleged that they had been led to believe that the period of “temporary” employment which they were offered was effectively a probationary period, at the end of which they would become regular union employees. The union’s CBA with General Telephone provided for a hiring preference to be given to regular workers on leaves of absence over “temporary” employees. Since plaintiffs were members of the union bargaining for a union job, the terms of any independent contract could not be inconsistent with the CBA. Furthermore, plaintiffs would be required to show that “the terms of the collective bargaining agreement differed significantly from the individual employment contracts they believed they had made.” Bale, 795 F.2d at 780. Thus, a court would have to interpret the CBA in order to resolve the dispute, and preemption was appropriate. Plaintiffs in this case, unlike those in Holland and Cooper, however, rely not on a CBA, but rather on alleged contracts made separately from any union agreement. Moreover, plaintiffs’ alleged contracts relate to management, not bargaining unit, positions and the provisions of the CBAs do not reach the former. However, despite the fact that the employees in the instant case were negotiating for terms and conditions of management positions which are not covered by CBAs, a problem of conflict with provisions of the union contracts still exists. In Malia v. RCA Corp., 794 F.2d 909 (3d Cir.1986), the president of a local union accepted a promotion from his union position to a management job on the basis of oral representations which included, inter alia, the option to return to the bargaining unit if plaintiff was not satisfied with his new position. His request to return three weeks later was denied. The district court concluded that Malia’s contract and tort claims were preempted by section 301. The Third Circuit disagreed. The district court apparently determined that resolution of Malia’s claims would require interpretation of a CBA provision. On appeal, Judge Gibbons, noting that the provision in question governed the issue of seniority if an employee returned to the unit, not the right of an employee to return in the first place, wrote that Malia’s oral contract is a completely separate agreement from the collective bargaining agreement. In addition this oral contract is not preempted by the rule prohibiting members of a collective bargaining unit from negotiating inconsistent individual contracts. Although Malia was a member of Local 178 when he negotiated the alleged oral contract, the oral contract relates to the job of inventory supervisor — a management position outside the Local 178 bargaining unit. Nothing in the LMRA prevents an individual— whether that individual is to be newly hired or promoted from a bargaining unit — from negotiating an employment contract for a management position. Nor does LMRA prevent an individual— whether an applicant for new employment or a current employee in a supervisory position — from negotiating for a job in a bargaining unit so long as that employment will be on the terms and conditions set forth in the collective bargaining agreement. 794 F.2d at 913 (footnote omitted). In the instant case, as in Malia, plaintiffs’ alleged oral contracts are completely separate agreements from the CBAs; plaintiffs were negotiating employment contracts for management positions; and the record suggests that at the time the alleged oral contracts were made, one CBA did not address the issue of whether an employee could return to the unit or, if such employee could so return, whether his seniority status upon such return would give him the benefit of all employment time both in the unit and in the management position. However, whether the “terms” of the alleged oral accords were or were not inconsistent with the CBAs at the time the oral contracts were made, the CBAs were later amended on August 1, 1980 (for employees in the P & M unit) and on August 25, 1982 (for employees in the SNE unit). Those amendments permitted an employee to return to a bargaining unit only if: (1) no bargaining unit employees were on layoff and (2) the reason for the return was other than a reduction in the management position occupied by the employee prior to his desired return. The amendment also limited an employee’s seniority upon return to that held by the employee before he transferred out of the unit. Those amendments effectively prohibited a management employee from returning to a bargaining unit when unit employees were laid off. In Kern v. United Steelworkers, 669 F.Supp. 701 (M.D.Pa.1987), the plaintiff sued the union and his employer for breach of an employment contract and the union for breach of the latter’s duty of fair representation under section 301 and section 9(a) of the LMRA. Kern alleged that he was offered a promotion to a management job and was promised that he could be reinstated in his old bargaining unit job should something go wrong with his management position. The CBA governing Kern’s old job contained the same language regarding return and seniority status which was present in Malia — i.e., the agreement was silent as to any right to return and only spoke to seniority status if an employee returned. Kern was returned to his bargaining unit position after he was laid off from his management position. Kern argued — -as do plaintiffs in the instant case— that the company’s promise implied a guarantee that he would be reinstated to the bargaining unit with full company seniority rights. The company did not, however, treat Kern as if he had accumulated any seniority rights after his return to the unit. Judge Herman held the seniority promise to be unenforceable, noting that the Third Circuit in Malia expressly stated that the Labor Management Relations Act does not prevent an employee from negotiating an agreement for a job in the bargaining unit separate from the collective bargaining agreement, but that the agreed-upon-employment must “be on the terms and conditions set forth the collective bargaining agreement.” Seniority and its accumulation is an express term of the collective bargaining agreement in the instant case. Plaintiff's reinstatement, therefore, could only be governed by the terms of that agreement, not by the terms of the oral contract, even if the seniority terms are identical. Plaintiff cannot, therefore, sue to enforce the seniority term of the oral contract, even though he could have enforced the reinstatement terms, had that term been breached. 669 F.Supp. at 704 (citation to Malia omitted). The rationale stated in Kern would appear applicable in the instant case. Regardless of whether plaintiffs were aware of the terms of the CBAs which covered them as employees in the bargaining unit, and which would cover them again if they returned to that unit after work in a management job, Judge Gibbons’ approach in Malia, which requires that any independent oral contract between an employee and management not be inconsistent with the terms of a CBA, also stresses that nothing in the LMRA prevents employees from negotiating an employment contract for a management position. Malia, 794 F.2d at 913. Plaintiffs in this case allege that each of them entered into an oral employment contract with National regarding the terms and conditions of the management position each was offered. To the extent, however, that these terms and conditions address issues covered by the CBA in the bargaining unit to which each plaintiff would return in the event of management layoffs, plaintiffs were “negotiating for a job in a bargaining unit.” Malia, 794 F.2d at 913. Such negotiations are proper “so long as that employment will be on the terms and conditions set forth in the collective-bargaining agreement.” Id. Thus, if a CBA which covered a plaintiff’s bargaining unit spoke to the right of such plaintiff to return and to his seniority status after return, the terms of the CBA control, even if the seniority terms in that agreement and the oral contract are identical. Kern, 669 F.Supp. at 704. Since the court would look to the terms of the CBA to interpret the right to return and the seniority status, any claim based upon a breach of those promises is preempted by section 301. In Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988), Justice Stevens reaffirmed the principle that “if the resolution of a state-law claim depends upon the meaning of a collective-bargaining agreement, the application of state law ... is pre-empted_” 108 S.Ct. at 1881. In Lingle the petitioner was discharged for filing an allegedly false worker’s compensation claim. Her union instituted a grievance pursuant to a CBA which provided that employees could not be discharged except for “just” cause and for arbitration of disputes between the employer and any employee concerning the effect or interpretation of the agreement. While arbitration was proceeding, the petitioner filed a retaliatory discharge action in state court, alleging that she had been discharged for exercising her rights under the state’s worker’s compensation laws. The district court concluded, and the Seventh Circuit agreed, that the retaliatory-discharge claim was “inextricably intertwined” with the collective bargaining provision prohibiting discharge without cause and that allowing the state-law action to proceed would undermine arbitration held pursuant to the CBA. Disagreeing, Justice Stevens, on behalf of a unanimous Supreme Court, rejected the reasoning of the lower courts and noted that “even 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 agreement for Sect. 301 preemption purposes.” Id. at 1883. Lingle is not directly applicable to the instant case because the former P & M unit plaintiffs and former SNE unit plaintiffs allege oral contracts whose terms may be controlled by the P & M CBA or the SNE CBA. Both sets of plaintiffs contend that National representatives promised them that they could always return to their old bargaining units with full seniority for time spent out of the bargaining units restored. As Malia and Kern teach, plaintiffs in the instant case were free to negotiate for management positions not covered by a CBA. However, to the extent that a plaintiff was negotiating for a right to return to his old job, he was negotiating for a job in a bargaining unit. Such negotiation is proper, “so long as that employment will be on the terms and conditions set forth in the collective bargaining agreement.” Malia, 794 F.2d at 913. Therefore, if the CBA which covered a plaintiff’s former union position addressed the right of return and seniority status upon return, the terms of the CBA control and claims based upon the CBA provisions are preempted by section 301. Application of the Preemption Principles The application of these principles to this case is complicated by three factors: (1) the plaintiffs are divided into groups covered by two separate CBAs; (2) each agreement was modified subsequent to each plaintiff’s alleged oral contract and the modifications affected returns to the bargaining units and seniority status after return; and (3) not all plaintiffs allege the same promises regarding return and seniority. The P & M Unit CBA Prior to 1980, the P & M CBA contained a provision addressing the unit seniority which an employee would hold after a transfer out of the unit and a later return. In 1980, the P & M CBA was changed effectively to prohibit the return of management personnel to the unit during periods of management or P & M layoffs. The new language expressly stated that former unit members could return to the unit under certain circumstances and addressed the- amount of seniority a new returnee would hold. The 1980 P & M CBA spoke to both the right of a former bargaining unit member to return to the unit and to seniority upon such a return. Plaintiffs argue that the language relates only to persons who were promoted or transferred after October 1, 1980, and that since all P & M plaintiffs were promoted prior to that date the provision does not apply to them. As the P & M agreement prior to 1980 did not speak to a right to return, plaintiffs contend that their claims based upon a promise to return should not be preempted. There does not appear to be any case law addressing the question of whether the existence of a later CBA provision which addressed the contract term at issue in an earlier separate oral contract is enough to trigger the preemptive effect of section 301. In this ease, this Court faces the further task of determining whether the language in paragraph (b)(3)(f), supra, which reads “Effective October 1, 1980 an employee who is transferred or promoted ...” clearly and unambiguously does not reach and cover the P & M plaintiffs. National contends that this CBA language is ambiguous and that therefore in this case in this Court, the meaning of that language must be determined. That very act of interpretation, defendant argues, triggers the preemptive effect of section 301. The phrase can be interpreted to mean that “an employee who is transferred or promoted to a position outside of the bargaining unit after October 1, 1980 may return....” Indeed, upon a reading of the involved words, in isolation, that interpretation seerns to be the most plausible meaning. However, defendant argues that the verb “is transferred” refers to the status of a promoted employee after October 1, 1980. While defendant’s view may not appear to be the most natural interpretation, it is a plausible one. Accordingly, this Court cannot conclude that plaintiffs’ view is the only reasonable meaning which can be assigned to the provision. While “is transferred” is a verb in the present tense, it could refer to the “status” of an employee after October 1, 1980. As extensively discussed on the record during the August 12, 1988 hearing, evidence in the record does not tend clearly to support one interpretation; indeed the record reflects the ambiguity which this Court concludes exists in the language of the return-seniority provision. Since that language is somewhat ambiguous, the meaning of the 1980 P & M CBA must be determined in this case. Plaintiffs’ claims regarding the right to return and the seniority which follows such return directly conflicts with the terms of the CBA if those terms are applicable to these plaintiffs. Since resolution of that issue first requires that construction of the CBA provisions implicated by plaintiffs’ claim be determined in this case, preemption is required. This is not a case in which interpretation of the CBA is merely “tangential” to the plaintiffs’ state law claim as in Lingle, supra. The focus of the instant inquiry is whether the CBA provisions in question apply and preempt the state law claim — an inquiry to be conducted pursuant to federal labor law, not state contract law — and an inquiry whose outcome will be decisive as to whether plaintiffs’ claims can continue at all. This Court is not aware of any decision which distinguishes between cases in which the plaintiffs’ claims implicated the provision of a CBA and in which the claims were clearly covered by provisions in a CBA. If the ability of the plaintiffs in either case to maintain their claims depends upon the interpretation of a CBA, the preemptive force of section 301 equally applies. Thus, this Court concludes that the P & M plaintiffs’ claims based on a promise of a return to the unit with seniority restored are preempted. As far as the former P & M unit plaintiffs are concerned, then, the P & M CBA addressed both the issue of whether a former P & M unit member could return as a result of a management layoff and such employee’s seniority status upon return at the time he, as a former P & M member, was laid off. Thus, whether the language of the pre-1980 P & M CBA addressed those issues does not matter. To have permitted plaintiffs to return after 1980 during a time of management layoffs with full seniority would have violated the direct provisions of the modified P & M agreement — and it is that type of conflict between the provisions of independent employment contracts and the terms of a CBA which the preemption doctrine aims to avoid. The right to return to the bargaining unit and seniority upon such a return were governed by the P & M agreement after 1980. Since all plaintiffs in this group were let go after 1980, the terms of the CBA and not the terms of the alleged oral contracts control. Therefore, all contract and tort claims brought by former P & M bargaining unit workers related to promises to return to the bargaining unit at full seniority are preempted by section 301. The SNE Unit CBA When the ISU reached an agreement with National covering the SNE workers effective August 30, 1979, the CBA expressly stated that the seniority provisions contained in National’s Standard Practice Manual (containing employment policies for non-union personnel) would continue to govern the SNE members until another agreement modifying that seniority language was worked out. The same provision was contained in the August 1, 1980 SNE CBA. National and the ISU adopted the seniority language contained in the P & M contract regarding return to the unit and seniority status thereafter in a SNE CBA effective September 25, 1983. However, on August 17, 1982, the union issued a “Position Paper on Labor-Management Relations,” indicating a large number of union concerns which the union wanted management to address. The union requested, inter alia, that management Execute a Seniority Agreement with the Salary Division prohibiting the reduction of non-bargaining unit employees into the salary bargaining unit; and, further, removing those thirty (30) management employees already reduced and given full seniority heels. App. A (Vol. 4) at 1028. James Redline, President of Weirton, wrote a letter to union President Walter Bish, responding to each of the union’s demands. In regard to the seniority and return issues, Mr. Redline wrote: Mr. John Madigan has assured me the Industrial Relations Department is ready to resume discussions [regarding a seniority agreement] August 25, 1982. Please advise them of when you wish to begin the discussions. I also agree to put a hold on further reductions in the SNE Union until an appropriate agreement or impasse is reached. Id. at 1031. That letter was dated August 24, 1982, after which no transfers occurred from management back to the SNE unit. National has not provided any evidence which convinces this Court that Mr. Red-line’s letter constituted an amendment of the 1980 CBA. First, the language in the exchange of petition and letter seems to be the language of two parties bargaining towards an agreement. Indeed, the Redline letter sets a date when discussions on a seniority agreement were to begin. The “hold” on further reductions appears to have been a unilateral good faith move on National’s part — one which National could have, if it had desired, rescinded if an impasse had been reached. There is no indication that Bish acknowledged Redline’s letter or “offer” in any formal manner. Second, when shown the August 24, 1982 letter, Redline could not recall having seen it (see App. c at 59-68), although he did confirm that the ability of a salaried exempt employee to return ended on August 25, 1982. Id. at 64. And third, while William Doepken, Weirton’s Divisional Counsel and General Manager of Labor Relations, stated that he viewed the “agreement” to hold returns as an enforceable obligation under the CBA, App. C at 75, another Labor Relations official, Robert Korbel, suggested that it was the language negotiated in the 1983 SNE CBA which contractually prohibited returns. App. B at 726-27. There is no dispute that a CBA can be modified through post-execution negotiations, see Ekas v. Carling National Breweries, 602 F.2d 664 (4th Cir.1979), cert. denied, 444 U.S. 1017, 100 S.Ct. 669, 62 L.Ed.2d 646 (1980), that such negotiated amendments are fully binding, and that a party may compel arbitration in response to alleged violations of such an amendment. See e.g., Adkins v. Times-World Corp., 771 F.2d 829, 831 (4th Cir.1985), cert. denied, 474 U.S. 1109, 106 S.Ct. 896, 88 L.Ed.2d 930 (1986). But in every such case cited by defendant, the parties had negotiated and signed a formal addendum to the CBA or memorandum of understanding. The evidence in this case does not reflect the basic elements of contract formation in offer and acceptance — the letter in the record from Redline is not even signed and, as noted above, there is no evidence of any response from the union. Thus, at the time that the SNE plaintiffs were laid off in 1982, the seniority provisions contained in the Standard Practices Manual governed any right to return and seniority status upon a return to the unit. The Standard Practices Manual speaks to the seniority an SNE employee would hold upon return to the unit; however, the Manual does not appear to contain any express language regarding the right of an SNE employee who transfers out of the unit to return in the first place. In sum, while the members of a union are not barred by federal labor law from entering into independent employment contracts with management for a non-union job, union employees cannot bargain for rights which are addressed by a CBA without having any suit filed regarding those rights preempted by section 301 of the LMRA. Thus, the P & M and SNE plaintiffs, who allege that they entered into an oral contract with National which included promises permitting return to the union job and/or the retention of company seniority upon such a return, face the preemption of those claims to the extent they are addressed in the relevant CBA. All such preempted claims must be brought under the LMRA which contains a six-month statute of limitation for filing such actions. Del Costello v. IBT, 462 U.S. 151, 163, 103 S.Ct. 2281, 2289, 76 L.Ed.2d 476 (1983). All the claims in this case arise from events which occurred prior to 1983. That six-month time limitation has long passed. Thus, each contract claim asserted in this ease which is preempted by federal law cannot now be asserted under the LMRA. Summary judgment will, accordingly, be entered in favor of the defendant on all preempted contract claims. Application of Preemption to Individual Contract Counts The forty-one plaintiffs in Count One are former members of the P & M unit who were promoted to management positions prior to August 1, 1980. They allege that they relied upon a number of oral representations by National agents when they accepted their promotions. Count One appears to allege a number of breaches; only the alleged breach relating to return to the bargaining unit and any “implied” full restoration of seniority upon return are preempted. (Second Amended Complaint ¶ 70(c)). The claims relating to use of company date seniority to management layoffs do not implicate any bargaining unit agreement and are thus not preempted. The three plaintiffs in Count Two were P & M unit employees who accepted management positions after August 1, 1980. None of those plaintiffs alleges a promise on the part of National that such employee could return to the unit in the event of a management layoff. Consequently, no claim in this count is preempted. The fifteen plaintiffs in Count Three are former members of the SNE unit who were promoted to supervisory positions and later laid off. Those plaintiffs allege essentially that: (1) each was promised he could return to the SNE unit in the event of layoffs and could so return with full company seniority; (2) National would use company date seniority for layoffs and recalls; and (3) each such plaintiff would keep a job until retirement unless terminated for just cause. As already discussed, the SNE employees first obtained a CBA in 1979, and the 1979 and 1980 CBAs included by reference Section 6.5 of the Standard Practice Manual regarding seniority positions. Since Section 6.5 did not expressly address the right of former SNE members to return, and since no such provision was incorporated into the CBA prior to the layoffs, the claim in paragraph 98(c) of the Second Amended Complaint for a contractual promise to return is not preempted. The Statute of Frauds Defense National also asserts that the West Virginia Statute of Frauds bars plaintiffs’ alleged state law contract claims. That West Virginia statute states in relevant part: No action shall be brought in any one of the following cases: ... (f) Upon any agreement that is not to be performed within a year; Unless the promise, contract, agreement, representation, assurance or ratification, or some memorandum or note thereof, be in writing and signed by the party to be charged thereby or his agent. W.Va.Code § 55-1-1. The Supreme Court of Appeals of West Virginia, in interpreting that statutory provision, has written: The established law in this State ... is that the terms of a verbal contract must expressly or by necessary implication provide for performance beyond a year or contain nothing consistent with complete performance within a year, in order to come within the statute of frauds. Thompson v. Stuckey, 300 S.E.2d 295, 297 (W.Va.1983) (citations omitted). However, “if an oral contract may, in any possible event, be fully performed according to its terms within a year, it is not within ... the statute of frauds ... and it is only necessary that the contract be capable, by reasonable construction, of full performance by one side within a year in order to remove it from the statute of frauds.” Id. at 298. Defendant argues that each plaintiff asserting an oral contract alleges in the complaint that National promised to employ the plaintiff until mandatory retirement age, and also contends that the contracts therefore could not be performed within one year. However, the complaint also alleges that National’s employment of plaintiffs was not unconditional; National could terminate a plaintiff if National “had specific, just, and lawful cause” to do so. (See Second Amended Complaint, ¶[¶ 70(g), 85(f), 98(g), 111(g)). Since it is possible that each contract could have been terminated by National for such cause, or for other reasons, within one year of the date each plaintiff accepted a management position, the alleged oral contracts could have been performed within one year. Accordingly, the Statute of Frauds does not bar plaintiffs’ claims which are based upon the alleged existence of oral contracts. Breach of Employment Contracts — The Legal Standard Since at least some of plaintiffs’ contract claims, at this juncture, survive National’s motion for summary judgment based upon preemption, it is incumbent upon this Court next to address the legal standards in West Virginia for adjudicating claims of breach of employment contracts. West Virginia adheres to the doctrine of “at will” employment which, “when unaffected by contractual or statutory provisions to the contrary, may be terminated, with or without cause, at the will of either party.” Bell v. South Penn Natural Gas Co., 135 W.Va. 25, 62 S.E.2d 285, 288 (1950). Those employed under oral agreements in which the expected duration of employment and potential reasons for termination were never specified, are generally considered “at will” employees. Cordle v. General Hugh Mercer Corp., 325 S.E.2d 111, 112 (W.Va.1984). Nevertheless, the Supreme Court of Appeals of West Virginia has recognized that “contractual provisions relating to discharge or job security may alter the at will status of a particular employee.” Cook v. Heck’s, Inc., 342 S.E.2d 453, 457 (W.Va.1986). Heck’s is the leading West Virginia case relating to employer modifications to the at will status of employees. In Heck’s, the appellant contended that the employee handbook modified her contract of employment so that it would not be terminable at the will of her employer. The handbook contained evidence of a promise by the employer not to discharge those employees explicitly covered by the handbook, except for the offenses set forth in the handbook. The Court concluded: The inclusion in the handbook of specified discipline for violations of particular rules accompanied by a statement that the disciplinary rules constitute a complete list is prima facie evidence of an offer for a unilateral contract of employment modifying the right of the employer to discharge without cause. We agree that “[n]o unilateral contract arises merely by the fact that [the employer] has alerted its employees that certain conduct may form the basis of a discharge.” However, it should be remembered that, by its own terms, the list of rules, the violation of which would be grounds for discharge, was described as a complete list. 342 S.E.2d at 459 (citations omitted). After summarizing “the traditional elements of contract formation,” the Court noted its agreement with those courts that have found valuable consideration in the continued labor of workers who have in the past foregone their right to quit at any time. We conclude that a promise of job security contained in an employee handbook distributed by an employer to its employees constitutes an offer for a unilateral contract; and an employee’s continuing to work, while under no obligation to do so, constitutes an acceptance and sufficient consideration to make the employer’s promise binding and enforceable. Id. at 458-59. While Heck’s involved an alleged contract based on an employee handbook, its principles are applicable to a case involving oral promises, since the traditional elements of contract formation govern both situations. The parties disagree regarding the sweep of Heck’s. National seems to assert that any oral promise must be very clear and definite in order to be enforceable. In contrast, the plaintiffs at times seem to argue for what might be characterized as a “contract in the air,” and would find an employment contract implied by past practices and policies of National alone. Heck’s does not support the view that an employment contract can be implied solely from past practices, in the absence of affirmative acts, promises, or written representations. Indeed, Heck’s emphasized that, at least in the handbook area, “the offer must be definite in form and must be communicated to the offeree.” 342 S.E.2d at 459 (citation omitted). In Conaway v. Eastern Associated Coal Corp., 358 S.E.2d 423 (W.Va.1986), Cona-way apparently claimed that a statement of general policies applicable to all salaried employees served as an employment contract which ended his at will status. While avoiding the question of whether this statement of policies did arise to a contract, the Court stated: Mr. Conaway also argues that his employment was not “at-will,” but was governed by a contract. In [Heck’s], we held that an employee handbook may form the basis for a unilateral contract. This rule has some application in this case. Although Mr. Conaway was not covered under the formal National Bituminous Coal Wage Agreement of 1978 because he was a foreman, he was covered by a statement of general policies which applied to all salaried employees. This document, however, merely set out an appeal procedure for discharged employees: [appeal procedure omitted]. Mr. Conaway was given his appeal and he lost. The labor policy did not guarantee an outcome, just an appeal. Therefore, even if the labor policy is construed as a contract, Mr. Conaway alleged no facts which would show a violation of it. 358 S.E.2d at 427. Most recently, in Collins v. Elkay Mining Co., 371 S.E.2d 46 (1988), the Supreme Court of Appeals addressed the breach of contract claim brought by plaintiff, who contended that he was induced by defendant to move from his union job to management by representations assuring him continued employment until reaching retirement age. He also stated he had been induced by various publications of the company which promised him financial security until retirement. The trial court rejected the implied contract theory just a few days before Heck’s was decided. Apparently based upon the fact that an employer “handbook” existed, the majority of the Supreme Court of Appeals, in a split decision, remanded the case for proceedings in the light of Heck’s. The Supreme Court did not address the question of the oral representations which, assumedly, were analyzed as a possible express oral contract. The above-discussed West Virginia cases represent the existing law of that state with regard to implied employment contracts in derogation of an employee’s “at will” status. Those cases go no further than to state that representations contained in an employee handbook which are clear and definite and are intended by the employer to be used by employees, can meet the normal requirements for formation of an implied contract. While language in these cases may refer to “policies” and “practices” generally, there is no indication that the principles of Heck’s are intended to apply in any situation other than in one involving a handbook or comparable writing. Seemingly, therefore, West Virginia law requires some solid evidence that a promise consisting of ascertainable terms has been expressly made. Thus, if the terms are vague or ambiguous, evidence of the parties’ understanding and the surrounding circumstances may help determine the meaning of the terms. “[Generally, the existence of a contract is a question of fact for the jury ... [however] the trial court is justified in removing the issue from the jury’s consideration where a prima facie case is lacking.” Heck’s, 342 S.E.2d at 457. The latest statement of West Virginia law in this area remains Heck’s, a case in which the Court focussed on written policies in an employee handbook and concluded that finding a “definite promise” in the handbook to discharge only for just cause merely required application of common principles of contract law. In two decisions since Heck’s, the Supreme Court of Appeals has not chosen to expand or to elaborate those principles. A written manual can meet traditional contract requirements because it can be viewed as an offer seeking continued work in compliance with the policies there set forth; acceptance is manifested by the employees’ continued work; and consideration is provided by the fact that the employees continue to work when they have no obligation to do so. The language is written by the employer, who can be assumed to have intended the policies set forth to be accepted by the employees, and written policies addressing important terms of work — such as reasons for discharge — can reasonably be viewed by employees as legally binding, making reliance on the policies justifiable. Past practices, by themselves, are different from written employee manuals. In the latter situation, the traditional elements of contact formation are present. There is the problem of whether the existence of a past practice — never referred to by the parties when discussing a promotion or terms of employment — can serve as an “offer.” Nor are the “contents” of a past practice usually definable to the same extent of definiteness and specificity as are the promises in a manual. While the fact that employees have continued to work could provide acceptance and consideration regarding the “past practices,” the lack of evidence of an offer and the terms of an offer clearly distinguish, to some extent, past practices per se from employee handbooks. Given the limitation of Heck’s to handbooks, the contractual analysis of the Supreme Court of Appeals with respect to what amounts to an exception to the at will doctrine, no further explanation or expansion of the Heck’s doctrine in West Virginia, and no clear trend in other jurisdictions, this Court concludes that the past practices alleged in this case by plaintiffs cannot, in and of themselves, give rise to a contractual change in at will status. Such past practices can, however, serve to aid the Court in the interpretation of contract terms established by express promises, oral or written, of those terms which are vague or ambiguous. Thus, in cases in which a contract term such as “seniority” is established through an express promise, past practices or policies may be utilized to help clarify ambiguities with respect to the parties’ agreements. However, in the absence of an express promise, a past practice or policy not enshrined in a policy manual or writing of some sort intended for use by employees cannot serve in and of itself to establish a contractual obligation on the part of the employer. Evidence in the Record of Past Practices Even if this Court were to conclude that past practices could establish an implied employment contract, it is not at all clear that the voluminous record before this Court establishes the scope and definiteness of those practices necessary to equal the specificity and definiteness of the promises in the handbook in Heck’s. The alleged “background” facts include the following: (1) in the past, National had allowed exempt employees to transfer to their former positions in the hourly or salaried nonexempt ranks with full seniority restored; (2) during work slowdowns in one department, National transferred foremen to management positions in other departments; (3) the management layoffs which did occur were based on an employee’s company time; and (4) since union employees were not being promoted into significantly higher paying jobs and were losing job protection, they seemingly would have been very concerned about job seniority and would “likely” have sought answers to questions regarding seniority and layoff procedures. There does not seem to be a dispute that prior to 1980, management employees could transfer back to the P & M or SNE ranks. The plaintiffs themselves generally relied upon hearsay and alleged “common knowledge,” although most plaintiffs were personally familiar with very few employees who transferred back. For example, plaintiffs Anderson, Baker, Kruger, and Kondik each knew of one individual personally; plaintiff Dhayer himself had transferred back and knew of one other; plaintiff Barber knew of a “few people” but did not name any; plaintiff Gracie had “heard of several”; a large number of plaintiffs mentioned knowledge of employees Barkhurst and Michaux transferring back; and a large number of plaintiffs knew of no employee personally who had done so. From each individual plaintiffs perspective, then, the knowledge of a past practice concerning returns was based on little personal knowledge and a lot of alleged common knowledge. While it is not precisely clear how many employees were returned since 1975, it seems clear that, for whatever reason, employees were returned and no employee who sought to go back was denied the opportunity. The record is far less clear as to the source of that right, however. National has steadfastly maintained that it determined in each case if and when an employee could return. On the other hand, plaintiffs contend that National’s policy was, in fact, as stated and that National guaranteed plaintiffs it would return them to the hourly ranks. Thus, plaintiffs claim that the promise is specific — that an employee could return at such employee’s option for any reason. The record contains little indication of that right in the evidence of the past practices out of which the implied contract allegedly arose. The definite and specific promise that plaintiffs had the absolute right to return is missing from the record (except for a reference by National’s McCreary during the 1980 collective bargaining negotiations that employees had the “unlimited” right to go back. See App. B at 673). It must be remembered that the specificity and completeness of the promises in the Heck’s handbook is an important reason why the Supreme Court of Appeals of West Virginia permitted an implied contract action to go forward in that case. The evidence as to a past practice that management layoffs would be conducted by company time is inconsistent. National states that former salaried nonexempt employees were returned with full company seniority pursuant to the provisions of the Standard Practices Manual, “with the approval of, and at the discretion of, management.” App. A at 685. That provision was adopted in the 1980 SNE CBA and was later changed materially to restrict returns in 1983. But that latter provision relates only to SNE employees and speaks only to seniority after a return to the SNE, not seniority as a condition of layoffs in the management ranks. Charles Lafferty, a National management employee, suggested that company seniority was “probably” the determining factor in the layoffs in 1977 and 1978, although he indicated that performance was always a factor. App. A at 529-32. Lafferty said that there was disagreement in 1978 in management about the criteria to use in layoffs that year; and that those who asked about layoffs after 1978 would probably have been told that the basis was company time. Id. at 534. But the practice does not seem ever to have been uniform, based on the record evidence. For example, Clyde Gast, who was Manager of Management Development and Training, testified that he laid off employees in 1979 or 1980 on the basis of departmental, not company, seniority; he knew there was a policy but did not remember what it was. App. C at 44-46. William Johnson laid off plaintiff White in 1980 on the basis of performance. App. C at 37-40. Plaintiff Joseph Mayernick stated in reference to management policies regarding layoffs in the exempt ranks: “To my recollection, I think there were two or three that I